USA v. Gary Vaughn, Jr.

Filing

NOT PRECEDENTIAL OPINION Coram: GREENAWAY, JR., SHWARTZ and RENDELL, Circuit Judges. Total Pages: 12. Judge: GREENAWAY JR. Authoring.

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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 16-3138
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UNITED STATES OF AMERICA
v.
GARY E. VAUGHN,
Appellant
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Appeal from the United States District Court
for the Middle District of Pennsylvania
(M.D. Pa. No. 1-09-cr-00167-001)
District Judge: Honorable John E. Jones III
______________
Argued July 12, 2017
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Before: GREENAWAY, JR., SHWARTZ, and RENDELL, Circuit Judges.
(Filed: August 15, 2017)

Frederick W. Ulrich
Office of the Federal Public Defender
100 Chestnut Street, Suite 306
Harrisburg, PA 17101
Counsel for Appellant
Phillip J. Caraballo-Garrison
Office of the United States Attorney
235 North Washington Avenue
P.O. Box 309, Suite 311
Scranton, PA 18503
Counsel for Appellee

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OPINION*
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GREENAWAY, JR., Circuit Judge.

Gary Vaughn has alleged that his attorney provided him ineffective assistance of
counsel during the plea-bargaining process, failing to adequately communicate with him
about the merits of a 60-month plea offer that he ultimately turned down. The only direct
evidence of what was discussed about this plea offer comes from dueling affidavits:
Vaughn says that his attorney did not provide him necessary information, while his
attorney says that he did. Because these conflicting accounts do not conclusively resolve
the factual dispute, the District Court erred by not conducting an evidentiary hearing to
determine the advice Vaughn’s counsel provided, whether it was deficient, and, if so,
whether such deficiency caused prejudice. We will vacate and remand.
I.

BACKGROUND
A federal grand jury returned an indictment against Vaughn, charging him with

conspiracy to commit money laundering, conspiracy to commit mail and wire fraud, mail
fraud, and the use of a fictitious name in relation to mail fraud, and sought forfeiture of
the proceeds of his crimes. From May 2009 to January 2011, he was represented by
attorney Steven Rice, whose conduct is not at issue in this case. In January 2011,
attorney Frank Sluzis took over Vaughn’s representation in this case.

*

This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
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This case involves two plea deals offered to Vaughn. In August, 2011, the
Government offered Vaughn an agreement under which he would plead guilty to
conspiracy to commit money laundering (Count 1) and conspiracy to commit mail and
wire fraud (Count 2). If the District Court accepted the plea, he would receive a
guaranteed 60-month prison sentence. See Fed. R. Crim. P. 11(c)(1)(C) (stating that if
the parties “agree that a specific sentence . . . is the appropriate disposition of the case,”
then “such a recommendation or request binds the court once the court accepts the plea
agreement”). Ultimately, Vaughn turned down this offer.
Vaughn and Sluzis’s affidavits provide very different accounts of the
conversations they had regarding this initial, 60-month offer. In Vaughn’s affidavit, he
claimed that Sluzis refused to tell him what his sentence exposure would be if he were to
go to trial, saying that “he only practiced in facts not fairy tales and further that he
practiced in guarantees not what ifs.” App. 192. Vaughn stated that because he could not
gauge the benefit of the plea deal, he did not accept it. In contrast, Sluzis’s affidavit
stated that he provided Vaughn with calculations as to the likely Guidelines range,
estimating that the Guidelines range for Count 1 would be 57-71 months and the range
for Count 2 would be 78-97 months.1 He stated that he discussed the offer at length with
Vaughn.

1

At one point in his brief, Vaughn recounts that Sluzis provided this Guidelines
estimate, citing to Sluzis’s affidavit. But counsel clarified at argument that he believed
he was obligated to restate the facts as the District Court had found them. Accordingly,
we do not take this to be a concession.
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The government offered another plea deal in November, 2011. Again, Vaughn
would plead guilty to Counts 1 and 2, but this time, there would be no binding
recommendation as to sentencing. Vaughn accepted this second plea offer. Vaughn
alleges in his affidavit that Sluzis pushed him to accept this deal, and told Vaughn that
the judge ‘hinted’ that he would sentence him below the guidelines. App. 193. He also
again alleged that Sluzis refused to explain to him the alternative to taking the deal or the
worst-case outcome of proceeding to trial.
The District Court held a change-of-plea hearing in accordance with Vaughn’s
new desire to plead guilty. At this hearing, Vaughn testified, under oath, that he had gone
over the charges and the plea deal with Sluzis. Vaughn also testified that he agreed with
the Government’s summary of the plea agreement, which was recited at the hearing, and
understood that the court was free to sentence him up to the statutory maximums, which
were twenty and five years for the two counts, respectively. At the same hearing, Sluzis
stated that he had provided Vaughn with a Guidelines estimate of 57-71 months for
Count 1 and 78-97 months for Count 2. The District Court accepted Vaughn’s guilty plea
for both counts.2
The United States Probation Office thereafter prepared a Presentence Investigation
Report (“PSR”). The PSR stated that Vaughn’s base offense level was 6, and that the
following enhancements applied: (1) a 16-level increase applied under U.S.S.G.
§ 2B1.1(b)(1)(I) because Vaughn’s conduct caused a loss of more than $1,000,000 and

2

Pursuant to the plea agreement, Vaughn also agreed to forfeit $900,000, as
provided for in the indictment.
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less than $2,500,000; (2) a two-level increase applied under U.S.S.G. § 2B1.1(b)(2)(A)(i)
because the offense involved 10 or more victims; (3) a two-level increase applied under
U.S.S.G. § 2B1.1(b)(4) because Vaughn was in the business of receiving and selling
stolen property; and (4) a four-level increase applied under U.S.S.G. § 3B1.1(a) because
Vaughn was an organizer or leader of a criminal activity that involved five or more
participants. The PSR also recommended that Vaughn not receive credit for accepting
responsibility for his crimes because, though he pleaded guilty, the letter he submitted
minimized his conduct. As a result, the PSR concluded that Vaughn’s total offense level
was 30, and his criminal history category was IV, which resulted in an advisory
sentencing Guidelines range of 135-68 months’ imprisonment.
Sluzis at first objected to only one aspect of the PSR—whether Vaughn accepted
responsibility—prompting Vaughn to hire new counsel to provide a second opinion on
the proper calculation of the loss and forfeiture amounts. Based on that advice, Sluzis
added another objection to the PSR, prompting the Government to agree to reduce the
loss amount. This led to a new Guidelines Range of 92-115 months.
Emails sent by Vaughn to Sluzis after the PSR was received provide further
evidence that Sluzis and Vaughn had discussed the likely sentencing effects of Vaughn
pleading guilty to the final plea offer. Vaughn complained, for example, that “You said
that Judge Jones would sentence me far below the guidelines of which you stated were
48-72 months. . . . It doesn’t seem that we are even close to that now.” App. 282.
At sentencing, Sluzis sought probation. The Government recommended
sentencing within the 92-115 months range. The District Court sustained both of
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Vaughn’s objections, and further decided to vary downwards, finding the Guidelines still
to be “a bit of an overreach,” considering the amount of loss. App. 159. Ultimately, the
District Court imposed concurrent terms of seventy-two months’ imprisonment on Count
1 and sixty months on Count 2, as well as three years’ supervised release, and forfeiture
of $900,000.
About a year later, Vaughn filed a motion to vacate or correct his sentence under
28 U.S.C. § 2255, claiming that Sluzis provided ineffective assistance of counsel during
the plea-bargaining and sentencing processes. The District Court denied the motion
without a hearing,3 finding that Sluzis’s affidavit was corroborated by the record of the
plea hearing and that Vaughn was informed of the consequences of rejecting the first plea
offer when he did so.
Vaughn filed a notice of appeal, and this Court granted a certificate of
appealability on two sets of issues. First, we granted a certificate of appealability on
Vaughn’s claims that Sluzis was ineffective for failing to adequately advise him of the
benefits of the first, 60-month plea offer, including whether the District Court should
have held an evidentiary hearing on this claim. Second, we granted a certificate of
appealability with respect to Vaughn’s claim that Sluzis ought to have objected to the
District Court’s application of four sentencing enhancements. We denied a certificate of
appealability on all other claims, including Vaughn’s claims regarding the forfeiture of

3

Notably, through much of the litigation in the District Court, the Government
stated that an evidentiary hearing would be necessary on Vaughn’s ineffective assistance
claims.
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$900,000. Thus, Sluzis’s advice with respect to the final, accepted plea offer is not at
issue in this appeal.
II.

JURISDICTION
The District Court had jurisdiction pursuant to 28 U.S.C. § 2255. We have

jurisdiction under 28 U.S.C. §§ 1291 and 2253.
III.

ANALYSIS
Vaughn’s primary contention on appeal is that the District Court erred by failing

to hold an evidentiary hearing before it ruled on his claim that Sluzis provided ineffective
assistance of counsel with respect to the first, 60-month plea offer, which he had
rejected.4 A district court’s denial of an evidentiary hearing in a habeas proceeding is

4

Vaughn also claims that Sluzis was ineffective for failing to object to the
application of four sentencing enhancements. These objections would have been
frivolous in light of the record and thus Sluzis was not deficient for failing to pursue
them. In addition, Vaughn was not prejudiced by the failure to object because the
objections lack merit and hence would not have changed the resulting Guidelines
calculations. See Strickland v. Washington, 466 U.S. 668, 694 (1984). First, with respect
to the loss amount, Sluzis filed an objection to the loss calculation that the District Court
sustained, which resulted in a loss amount of between $400,000 and $1,000,000 and
reduced his offense level by two from that recommended in the PSR. Moreover, there is
no non-frivolous basis for Vaughn to argue for a further reduction since, at the plea
hearing, Vaughn confirmed that the Government could prove that he laundered at least
$531,000 from the sales of stolen property.
Second, Vaughn has presented no basis to conclude that the two-level increase to
his offense level under U.S.S.G. § 2B1.1(b)(4) was improper. The enhancement applies
to offenses that involve 10 or more victims, and the PSR identified 26 victims.
Third, because receiving and selling stolen property was at the heart of Vaughn’s
criminal conduct and Vaughn admitted as much during the plea hearing, it would have
been futile for Sluzis to object to the application of a two-level enhancement under
U.S.S.G. § 2B1.1(b)(4) for being “in the business of receiving and selling stolen
property.”
Finally, at his plea hearing, Vaughn acknowledged that he “solicit[ed] and
enlist[ed] numerous runners,” App. 77, 81, which established that he was an organizer or
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reviewed for abuse of discretion. United States v. Bui, 795 F.3d 363, 366 (3d Cir. 2015)
(citing United States v. Lilly, 536 F.3d 190, 195 (3d Cir. 2008)). However, 28 U.S.C. §
2255(b) mandates that the court hold an evidentiary hearing “[u]nless the motion and the
files and records of the case conclusively show that the prisoner is entitled to no relief.”
Thus, the District Court is obligated to—and abuses its discretion if it does not—hold a
hearing if the habeas petition “allege[s] any facts warranting relief under § 2255 that are
not clearly resolved by the record.” United States v. Tolliver, 800 F.3d 138, 141 (3d Cir.
2015) (alterations in original) (quoting United States v. Booth, 432 F.3d 542, 546 (3d Cir.
2005). In assessing whether a hearing is necessary, the court “must accept the truth of the
movant’s factual allegations unless they are clearly frivolous on the basis of the existing
record.” Id. (quoting Booth, 432 F.3d at 545).
Vaughn seeks relief based upon Sluzis’s allegedly ineffective assistance in failing
to discuss his sentence exposure at the time of the 60-month plea offer. The Sixth
Amendment’s guarantee of effective counsel extends to plea bargaining, Lafler v.
Cooper, 566 U.S. 156 (2012), including to plea offers that were rejected, Missouri v.
Frye, 566 U.S. 133 (2012).5 Claims of ineffective assistance during plea bargaining are
analyzed under the familiar two-part Strickland standard, requiring performance below an
objective standard of reasonableness and prejudice. Lafler, 566 U.S. at 162-63.

leader of a criminal activity that involved at least five participants, warranting a fourlevel increase under U.S.S.G. § 3B1.1(a).
5
This is unaffected by the Supreme Court’s recent decision in Lee v. United
States, 137 S. Ct. 1958 (2017). That opinion addresses the standard when a plea is
accepted due to an attorney’s incompetence, not when it is rejected. Id. at 1965 & n.1.
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To effectively assist their clients in the plea bargaining process, counsel must
provide defendants facing a potential guilty plea “enough information ‘to make a
reasonably informed decision whether to accept a plea offer.’” Bui, 795 F.3d at 367
(quoting Shotts v. Wetzel, 724 F.3d 364, 376 (3d Cir. 2013)). We have previously
identified one particularly important piece of information for that decision: “Knowledge
of the comparative sentence exposure between standing trial and accepting a plea offer
will often be crucial to the decision whether to plead guilty.” United States v. Day, 969
F.2d 39, 43 (3d Cir. 1992). This obligates counsel not only to communicate the statutory
maximums and minimums, but also requires counsel “to know the Guidelines.” Bui, 795
F.3d at 367 (quoting United States v. Smack, 347 F.3d 533, 538 (3d Cir. 2003)). That
said, counsel’s obligations to explain possible sentencing outcomes are not allencompassing. Counsel need not provide “anything approaching a detailed exegesis of
the myriad arguably relevant nuances of the Guidelines,” Day, 969 F.2d at 43, nor must
she give “an exact number or close estimate of the maximum sentencing exposure.”
Shotts, 724 F.3d at 376.
Under this standard, Vaughn’s allegations—if taken as true—would mean that
Sluzis’s performance was deficient. Vaughn contends that Sluzis refused entirely to
communicate his likely Guidelines exposure and thereby denied him the information he
needed to make an informed decision whether to accept the first plea deal. We must take
these allegations as true unless the record shows them to be “clearly frivolous.” As the
Government admitted at argument, the record only provides two accounts of what
Vaughn and Sluzis discussed at the time the 60-month offer was on the table: Vaughn’s
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and Sluzis’s. It is one person’s word against another—hardly a clear resolution on the
face of the record—and precisely the sort of contested situation in which an evidentiary
record is necessary to resolve disputed facts.
The District Court erred by pointing to the “sworn statements made by the
Defendant at his change of plea hearing” as probative of what counsel had told Vaughn.
App. 441. At that hearing, Vaughn testified that Sluzis had explained the legal effect of
the plea hearing, and such statements “carry a strong presumption of verity” that
“constitute a formidable barrier in any subsequent collateral proceedings.” Blackledge v.
Allison, 431 U.S. 63, 73-74 (1977).6 But those statements were made at the hearing that
concerned the plea offer that Vaughn actually accepted, not the 60-month offer that he
turned down. At the hearing, Vaughn was not asked, and did not testify, about his
conversations with Sluzis about the earlier 60-month offer, which by that point was no
longer relevant.7 The emails between Vaughn and Sluzis, sent after Vaughn pled guilty,
likewise do not clarify anything about what was said during the relevant time period:
when the 60-month offer was on the table. Thus, the record does not conclusively
Vaughn’s hearing testimony also does not render his entire affidavit noncredible, even if it conflicts with the parts of his affidavit concerning the final, accepted
plea offer. Where a witness offers false testimony, the finder of fact may, or may not,
disregard the rest of his testimony. Cf. Lambert v. Blackwell, 387 F.3d 210, 256 (3d Cir.
2004) (endorsing “falsus in uno” jury charge). Put differently, disregarding Vaughn’s
entire affidavit requires a credibility determination, but the court must accept the truth of
Vaughn’s allegations in determining whether to hold an evidentiary hearing.
7
The District Court also referred to our decision in United States v. Shedrick, 493
F.3d 292, 300 (3d Cir. 2007) which held that “any erroneous sentencing information
allegedly provided by defense counsel was corrected by the written plea agreement and
the detailed in-court plea colloquy, both of which accurately stated [defendant’s]
potential sentence.” For the same reason, Shedrick is immaterial here. Vaughn had
already turned down the 60-month offer when the later plea hearing was held.
6

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resolve what advice Sluzis gave Vaughn, suggesting that an evidentiary hearing should
have been held.
In addition, the District Court did not address the prejudice prong of Vaughn’s
ineffective assistance claim, as it concluded that there was no deficient performance. In
this context, to show prejudice, a defendant must show a reasonable probability that he
would have accepted the favorable offer but for the ineffective advice of his counsel, that
the district court would have accepted the plea, and that “the conviction or sentence, or
both, under the offer’s terms would have been less severe than under the judgment and
sentence that in fact were imposed.” Lafler, 566 U.S. at 164. It is clear that Vaughn’s
ultimate 72-month sentence was more severe than the 60-month offer he rejected: one
element of the three-part definition of prejudice under Lafler. The District Court did not
address the other aspects of prejudice, namely whether there is a reasonable probability
that both Vaughn and the Court would have accepted the 60-month offer. Accordingly,
we will remand to the District Court for it to provide a prejudice analysis in the first
instance.
IV.

CONCLUSION
Vaughn has alleged that Sluzis’s performance was deficient for failing to

adequately communicate with him about the 60-month offer, and the record does not
conclusively resolve the relevant factual disputes on this issue. We therefore remand to
the District Court to hold an evidentiary hearing to determine the advice Sluzis provided,
whether it was deficient, and if it was, whether Vaughn can show prejudice as set forth in

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Lafler. We affirm the District Court’s judgment concerning the application of four
sentencing enhancements.

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