Gjuraj v. USA

Filing 10

RULING denying 1 Motion to Vacate/Set Aside/Correct Sentence (2255); denying 2 Motion to Amend/Correct. A certificate of appealability shall not issue..Signed by Judge Janet C. Hall on 7/10/13. (Torrenti, R.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
ISNI GJURAJ,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

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CIVIL CASE NO.
3:12-CV-1686 (JCH)

JULY 10, 2013

RULING RE: PETITIONER'S MOTION TO VACATE, SET ASIDE, OR
CORRECT SENTENCE PURSUANT TO 28 U.S.C. § 2255 [Doc. Nos. 1, 2]
Petitioner Isni Gjuraj proceeds pro se, pursuant to section 2255 of title 28 of the
United States Code, to vacate, set aside, or correct his federal criminal sentence of 320
months of imprisonment, followed by five years of supervised release. See Mot. to
Vacate (Doc. No. 1); Mot. to Amend Gjuraj 2255 Mot. (Doc. No. 2) (“Supp. Mot. to
Vacate”). Gjuraj argues that his counsel was ineffective at sentencing by failing to
object to the imposition of a sentence of 320 months of imprisonment on Count Two of
the Second Superseding Indictment. See Mot. to Vacate at 5; Supp. Mot. to Vacate at
6–15. The government argues that Gjuraj’s Motion should be dismissed because it is
procedurally barred, because defense counsel was not constitutionally deficient under
Strickland v. Washington, 466 U.S. 668 (1984), and because any alleged deficiency did
not impact Gjuraj’s overall sentence.
I.

BACKGROUND
A. District Court
On March 12, 2008, a federal grand jury returned a Second Superseding

Indictment charging Gjuraj and others with, among other things, retaliating against a
witness, victim, or informant, in violation of sections 1513(a)(1)(B) and 1513(a)(2)(B) of

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title 18 of the United States Code (“Count Two”), and conspiracy to possess with intent
to distribute fifty or more grams of cocaine base, in violation of sections 841(a)(1) and
841(b)(1)(A)(iii) of title 21 of the United States Code (“Count Four”). See Indictment at
GA 26, 27–28.1
On November 14, 2008, Gjuraj pled guilty to Counts Two and Four of the Second
Superseding Indictment. Minute Entry No. 396, Dkt. No. 07-cr-289 (MRK), at GA 11;
Plea Agreement at GA 43–44. Gjuraj also pled guilty to a one-count Information
charging him with robbery (“Count One”), in violation of The Hobbs Act, 18 U.S.C.
§ 1951. See Minute Entry Nos. 1, 2, Dkt. No. 08-cr-233 (MRK), at GA 18; Information at
GA 41–42; Plea Agreement at GA 44. The signed plea agreement contained the
following two paragraphs in a section titled “Stipulation of Offense Conduct”:
From in or about January 2007 to in or about February 2008, the
defendant agreed with others named and not named in the Second
Superseding Indictment to knowingly and intentionally distribute and to
possess with intent to distribute 50 grams or more of a mixture and
substance containing a detectable amount of cocaine base.
The
defendant acknowledges and stipulates that his conduct as a member of
the narcotics conspiracy charged in Count Four, which includes the readily
foreseeable conduct of other members of that conspiracy, involved at least
4.5 kilograms of a mixture and substance containing a detectable amount
of cocaine base.
Moreover, on December 24, 2007, defendant Gjuraj attempted to murder,
or aided, abetted, induced or procured others named in the Second
Superseding Indictment, to attempt to murder another individual with the
intent to retaliate against that person for providing information to a law
enforcement officer relating to the commission or possible commission of
a narcotics trafficking offense. Defendant Gjuraj also procured a firearm
for use in the commission of the offense with the intent and knowledge
that it would be used to murder, or to attempt to murder, the victim. A
firearm was discharged during the course of the offense[,] and the victim
sustained serious bodily injury.
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The government has submitted, along with its Opposition Memorandum, the Appendices filed
on direct appeal by Gjuraj and the government. See Gjuraj Appendix (“GA”) (Doc. Nos. 6-1 to 6-2); Gov’t
Appendix (“GSA”) (Doc. Nos. 6-3 to 6-5). The court will cite to GA and GSA, where possible.

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Plea Agreement at GA 54. Gjuraj also stipulated, under the Plea Agreement, that his
total offense level was 41 and that his Criminal History Category was I, resulting in a
range of imprisonment of 324 to 405 months, subject to a mandatory minimum term of
imprisonment of 120 months. See id. at GA 44, 47–48.
During the change of plea hearing, the district court informed Gjuraj of the
statutory maximums for the offenses for which he was pleading guilty. The court
correctly informed Gjuraj that the offense specified in Count Four of the Second
Superseding Indictment carried a statutory maximum of life and that the offense
specified in Count One of the Information carried a statutory maximum of twenty years
of imprisonment. See Change of Plea Tr. at GA 61. However, the court incorrectly
informed Gjuraj that the offense specified in Count Two of the Second Superseding
Indictment carried a statutory maximum of thirty years of imprisonment. See id.
On August 5, 2009, the district court held a sentencing hearing as to Gjuraj. The
court confirmed that Gjuraj had reviewed the Presentence Report (“PSR”) and had had
an opportunity to discuss it with counsel. GSA 70. The court then adopted the PSR’s
factual statements and guidelines analysis and calculations, resulting in a total offense
level of 41, a Criminal History Category of I, and a range of imprisonment of 324 to 405
months. GSA 71, 74–76. Gjuraj agreed that the court recited the guidelines
calculations correctly and did not object to the parties’ understanding that Count Two of
the Second Superseding Indictment carried with it a maximum term of imprisonment of
thirty years. GSA 72, 77.
Prior to imposing its sentence, the court described the principles governing its
consideration of the sentencing guidelines. The court noted that the guidelines were not

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binding or mandatory, but nonetheless must be considered along with the other factors
listed in section 3553(a) of title 18 of the United States Code. GSA 72–73. Then, with
respect to Gjuraj’s situation, the court stated:
In terms of the specifics in your case, Mr. Gjuraj, there are things on both
sides. I’m going to start with the negative ones, and the negative ones are
pretty bad. This is a horrendous set of crimes. Paying somebody to
murder somebody else who had the temerity to get you arrested and
cooperate with the federal government is beyond not acceptable behavior.
It is behavior that we should punish, and we should punish severely so
that others don’t do the same thing.
Secondly, this drug operation is a massive drug operation which was
fuelled by your desire for just greed. Just greed. And the aspects of it that
we’ve been talking about show I think a recklessness on your part, which
is not excusable. I mean, storing drugs on the school playground, hiring
people to murder others, dealing in firearms, dealing in multiple kilograms
of cocaine every day, and then kicking the door down of a 60-year-old
woman and threatening to shoot her if she doesn’t give you her ring. This
kind of behavior, I’ve not seen before, frankly, in the cases before me. So
that your family members should just know, . . . we are dealing with a
scale of conduct here that is really off the scale from the kind of cases I
typically see. Dealing drugs since 1998, over ten years.
GSA 164–65. The court then proceeded to discuss the guidelines:
[O]ne could make decent arguments that your guideline ranges should be
higher than what they are. Now, I’m not going to go there, but you didn’t
get certain additional points that would have pushed them higher and as it
is, your guideline range is 324 to 405 months. 405 months. And while
ordinarily I usually choose the bottom of the range, when I am faced with
serious crimes, I go up to the middle or the high end of the range.
So when I said earlier that we were talking about 20 to 30 years, the
reality is we are talking about even more. It could be even more. The
government is asking for 30[;] I know your counsel’s asking for 19 and 20.
Frankly, I’m not going to choose either of those, but I am going to choose
a sentence closer to the government’s because I do think that the
seriousness of this offense behavior needs to be punished severely.
GSA 167.
The court then sentenced Gjuraj to 320 months of imprisonment on each of
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Counts Two and Four of the Second Superseding Indictment, followed by five years of
supervised release. Minute Entry No. 753, Dkt. No. 07-cr-289 (MRK), at GA 15;
Sentencing Tr. at GA 95; Judgment at GA 96. The court also sentenced Gjuraj to 240
months of imprisonment on Count One of the Information, to run concurrently with the
320-month sentences for Counts Two and Four, followed by three years of supervised
release. Minute Entry No. 20, Dkt. No. 08-cr-233 (MRK), at GA 20. Judgment entered
on August 6, 2009.
B. Direct Appeal
Gjuraj timely filed notices of appeal. See Minute Entry No. 21, Dkt. No. 08-cr-233
(MRK), at GA 20 (filing Notice of Appeal for robbery sentence on August 13, 2009);
Minute Entry No. 767, Dkt. No. 07-cr-289 (MRK), at GA 16 (filing Notice of Appeal for
witness retaliation and drug conspiracy sentences on August 17, 2009). On April 6,
2010, Gjuraj’s appellate counsel filed an appeal, arguing that the district court erred
when it imposed a 320-month sentence on Count Two of the Second Superseding
Indictment, which exceeded the 240-month statutory maximum for the offense. Gjuraj
also claimed that the district court erred by failing to cap his sentencing guideline for
Count Two at 240 months. On August 3, 2010, Gjuraj filed a pro se supplemental brief,
in which he argued that the district court erred by relying on United States Sentencing
Guideline (“U.S.S.G.”) § 2A2.1, which deals with attempted murder, rather than
U.S.S.G. § 2J1.2, which deals with obstruction of justice.
On March 11, 2011, the Second Circuit affirmed Gjuraj’s conviction and sentence
by Summary Order. See United States v. Gjini, 419 Fed. Appx. 4 (2d Cir. 2011). The
Second Circuit agreed with Gjuraj that the district court erred by sentencing Gjuraj to a

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term of imprisonment that exceeded the statutory maximum, but held that Gjuraj had not
been prejudiced by that error “because Gjuraj received a concurrent 320-month
sentence on [Count Four of the Second Superseding Indictment].” Id. at 6. The Second
Circuit also rejected Gjuraj’s claim that the district court improperly relied on U.S.S.G.
§ 2A2.1, noting that “the district court properly applied the Guideline applicable to
Gjuraj’s actual conduct” of attempted murder. Id. at 8. On November 28, 2011, the
U.S. Supreme Court denied Gjuraj’s petition for certiorari.
II.

STANDARD OF REVIEW
“Because requests for habeas corpus relief are in tension with society's strong

interest in the finality of criminal convictions, the courts have established rules that
make it more difficult for a defendant to upset a conviction by collateral, as opposed to
direct, attack.” Ciak v. United States, 59 F.3d 296, 301 (2d Cir. 1995) (internal citation
omitted). “As a general rule, relief is available under § 2255 only for a constitutional
error, a lack of jurisdiction in the sentencing court, or an error of law that constitutes a
fundamental defect which inherently results in a complete miscarriage of justice.”
Napoli v. United States, 32 F.3d 31, 35 (2d Cir. 1994) (internal citations and quotation
marks omitted). Because Gjuraj is proceeding pro se, the court must read his
“submissions broadly so as to determine whether they raise any colorable legal claims.”
Parisi v. United States, 529 F.3d 134, 139 (2d Cir. 2008) (citing Weixel v. Bd. of Educ.,
287 F.3d 138, 145–46 (2d Cir. 2002)).
Section 2255 provides that, “[u]nless the motion and the files and records of the
case conclusively show that the prisoner is entitled to no relief, the court shall cause
notice thereof to be served upon the United States attorney, grant a prompt hearing

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thereon, determine the issues and make findings of fact and conclusions of law with
respect thereto.” To determine whether Gjuraj is entitled to an evidentiary hearing on
his motion, the court looks “primarily to the affidavit or other evidence proffered in
support of the application in order to determine whether, if the evidence should be
offered at a hearing, it would be admissible proof entitling the petitioner to relief.”
LoCascio v. United States, 395 F.3d 5 1, 57 (2d Cir.2005) (quoting Dalli v. United
States, 491 F.2d 758, 760 (2d Cir.1974)). “The petitioner must set forth specific facts
which he is in a position to establish by competent evidence.” Id. (quoting Dalli, 491
F.2d at 761).
III.

DISCUSSION
To challenge his conviction on the basis that his counsel was ineffective, Gjuraj

must satisfy a two-part test. First, he must demonstrate that his counsel’s performance
“fell below an objective standard of reasonableness.” Strickland v. Washington, 466
U.S. 668, 687–88 (1984); see also United States v. Abad, 514 F.3d 271, 275 (2d Cir.
2008). Second, he must show that “there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694. A petitioner “bears the burden of proving that counsel’s
representation was unreasonable under the prevailing professional norms.”
Kimmelman v. Morrison, 477 U.S. 365, 381 (1986). The reasonableness of counsel’s
performance is to be viewed from the perspective of counsel at the time, and “the
standard of review is highly deferential.” Id. “[A] court must indulge a strong
presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance.” Strickland, 466 U.S. at 689. Indeed, the Second Circuit has

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“declined to deem counsel ineffective notwithstanding a course of action (or inaction)
that seems risky, unorthodox, or downright ill-advised.” Tippens v. Walker, 77 F.3d 682,
686 (2d Cir. 1996). When a petitioner challenges his sentence based on an alleged
error in sentencing, he must show a “fundamental error of fact that would render [his]
sentencing proceeding so irregular and invalid that relief under § 2255 would be
appropriate.” United States v. Bokun, 73 F.3d 8, 12 (2d Cir. 1995) (vacating judgment
reducing defendant’s sentence under Fed. R. Crim. P. 35).
A. Use of Attempted Murder Guideline for Count Two
Gjuraj argues that his counsel was ineffective for failing to object to the use of the
attempted murder Guideline to calculate his offense level for Count Two. Supp. Mot. to
Vacate at 7. On direct appeal, the Second Circuit noted that the sentencing court
“properly applied the Guideline applicable to Gjuraj’s actual conduct—here, attempted
murder—which was more serious than his offense of conviction.” Gjini, 419 Fed. Appx.
at 8. Because Gjuraj “assented to the statement of facts set forth in the stipulation of
offense conduct, which established all the elements of attempted murder,” the Second
Circuit held that his guilty plea “contained a stipulation that specifically established a
more serious offense than the offense of conviction.” Id. (citing U.S.S.G. § 1B1.2(a))
(alterations omitted).
This court agrees. Although the Guidelines direct a court to use the offense
guideline section “applicable to the offense of conviction,” it then states that “in the case
of a plea agreement . . . containing a stipulation that specifically establishes a more
serious offense than the offense of conviction, determine the offense guideline section
. . . applicable to the stipulated offense.” U.S.S.G. § 1B1.2. In the signed Plea

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Agreement, Gjuraj stipulates that he “attempted to murder, or aided, abetted, induced or
procured others . . . to attempt to murder another individual . . . .” Plea Agreement at
GA 54. Accordingly, it was not “unreasonable under the prevailing professional norms”
for counsel to fail to object to the sentencing court’s use of the offense guideline section
of attempted murder for Count Two. See Kimmelman, 477 U.S. at 381.
B. Capping the Guidelines Range for Count Two
Gjuraj argues that, under Apprendi v. New Jersey, 530 U.S. 466 (2000) and
United States v. Cordoba Murgas, 422 F.3d 65 (2d Cir. 2005), it was error for the court
to “expose” him to a sentence above the twenty-year maximum for the offense of
witness retaliation under Count Two, see Reply Br. (Doc. No. 9) at 3–5; see also Mot. to
Vacate at 3 (arguing that the court erred by “failing to cap the Guidelines Sentencing
Range at the statutory maximum [of 240 months], as required by U.S.S.G.
§ 5G1.1(a).”).
Those cases are distinguishable. In Cordoba Murgas, the defendant was
indicted for a drug crime involving an unspecified amount of drugs. The Second Circuit
held that the defendant could not stipulate to an amount of drugs and then be
sentenced, to a drug crime involving a specified amount of drugs, where that sentence
would be “above the statutory maximum” for the crime named in the indictment.
Cordoba Murgas, 422 F.3d at 66. Similarly, in Apprendi, the Court held that “any fact
that increases the penalty for a crime beyond the prescribed statutory maximum must
be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi, 530 U.S. at
490.
Here, the offense named in Count Two of the Second Superseding Indictment

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was witness retaliation. Although the court used Gjuraj’s stipulated offense conduct to
apply a guidelines section regarding attempted murder, it did not use Gjuraj’s stipulated
offense conduct to alter the statutory maximum for Count Two. The court did not
sentence Gjuraj for attempted murder, and it did not use the stipulated conduct to
impose a sentence beyond what it mistakenly understood to be the prescribed statutory
maximum for witness retaliation.
Additionally, the Sentencing Guidelines expressly permits the use of an offense
guideline section applicable to a different offense than the offense charged in an
indictment, so long as the eventual sentence imposed is “limited . . . to the maximum
authorized by the statute under which the defendant is convicted.” U.S.S.G. § 1B1.2,
n.1. Indeed, the Sentencing Guidelines expressly contemplates that the guideline range
for a count may exceed the statutory maximum for the offense. If that occurs, the court
is directed to use the statutory maximum sentence as the guideline sentence. U.S.S.G.
§ 5G1.1(a).
Accordingly, defense counsel’s failure to object under Apprendi and Cordoba
Murgas was not objectively unreasonable.2
C. Incorrect Statutory Maximum for Count Two
Gjuraj also argues that counsel was ineffective for failing to object to the
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Gjuraj also argues that defense counsel’s failure to object to the court’s use of the attempted
murder offense guidelines section was prejudicial because it “affected the combined adjusted offense
level under U.S.S.G. § 3D1.4.” Supp. Mot. to Vacate at 12. The PSR, which the sentencing court
adopted, calculated adjusted offense levels of 39 for Count Two and 42 for Count Four. PSR ¶¶ 41, 47.
The Counts were each placed in separate groups, as directed by U.S.S.G. § 3D1.2. Because the
adjusted offense level for Count Two was within one to four levels of the adjusted offense level for Count
Four, the PSR added two points to Count Four’s adjusted offense level to create the combined adjusted
offense level as directed by the Guidelines. See PSR ¶¶ 54–60; U.S.S.G. § 3D1.4. Gjuraj argues that, if
the attempted murder guideline calculation had not been used for Count Two, then the adjusted offense
level for Count Two would have not been within one to four levels of the adjusted offense level for Count
Four and would not have required adding two points to Count Four. This argument fails because the
sentencing court correctly used the attempted murder guideline calculation for Count Two.

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incorrectly stated statutory maximum for Count Two. The parties do not dispute that the
court incorrectly stated that the statutory maximum for Count Two was thirty years
rather than twenty years. The court assumes, without deciding, that counsel’s failure to
object was deficient under Strickland,3 because any such deficiency did not “render
[Gjuraj’s] sentencing proceeding so irregular and invalid that relief under § 2255 would
be appropriate.” Bokun, 73 F.3d at 12.
The Second Circuit has held that “an erroneous sentence on one count of a
multiple-count conviction does not affect substantial rights where the total term of
imprisonment remains unaffected . . . .” United States v. Outen, 286 F.3d 622, 640 (2d
Cir. 2002); see Gjini, 419 Fed. Appx. at 6 (quoting Outen); United States v. Samas, 561
F.3d 108, 111 (2d Cir. 2009) (finding that erroneously imposed sentences on three
counts did not affect defendant’s substantial rights because they were to run
concurrently with a fourth, longer sentence, thus leaving total term of imprisonment
unaffected).
On direct appeal, the Second Circuit agreed that the sentencing court erred in
imposing a 320-month sentence on Count Two (witness retaliation), which had a
twenty-year statutory maximum at the time Gjuraj committed the offense. However, the
Second Circuit noted that Gjuraj’s total term of imprisonment remained unchanged
because he had also been sentenced to a concurrent 320-month sentence on Count
Four (narcotics distribution). Accordingly, Gjuraj “fail[ed] to show that the error affected
his substantial rights or the fairness, integrity, or public reputation of judicial
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The court notes that, although the statutory maximum for witness retaliation was twenty years at
the time Gjuraj committed the offense, it had been increased to thirty years in January 2008, before
Gjuraj’s sentencing. See Gjuraj, 419 Fed. Appx. at 6. Moreover, not only did defense counsel fail to raise
the fact that the stated statutory maximum was incorrect, but the Government and the U.S. probation
officer assigned to Gjuraj also failed to raise that fact.

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proceedings.” Gjini, 419 Fed. Appx. at 6 (internal quotation marks and citation
omitted).4
This court agrees with the Second Circuit’s analysis. Even if counsel had
“brought to the District Court’s attention the impropriety of imposing a [320-month]
sentence in excess of the 20-year statutory maximum” on Count Two, see Supp. Mot. to
Vacate at 10, Gjuraj’s effective sentence would have remained at 320 months because
of the concurrent 320-month sentence on Count Four, which was well within the
statutory maximum of life imprisonment on that Count. Moreover, even keeping in mind
that pro se submissions should be construed broadly, see Parisi, 529 F.3d at 139,
Gjuraj seeks resentencing only on Count Two and not also on Count Four, see Mot. to
Vacate at 13. Accordingly, Gjuraj cannot show that there is a “reasonable probability”
that, but for counsel’s failure to object to the sentence on Count Two, “the result of the
proceeding would have been different.” See Strickland, 466 U.S. at 694.
IV.

CONCLUSION
For the foregoing reasons, the court DENIES Gjuraj’s Motion to Vacate (Doc. No.

1) and his Supplemental Motion to Vacate (Doc. No. 2). Because the petitioner has
failed to make a substantial showing of the denial of a constitutional right, any appeal
from this order would not be taken in good faith and a certificate of appealability shall
not issue. The Clerk is directed to close the case.

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Despite finding that the imposition of a 320-month sentence on Count Two was error, the
Second Circuit did not remand with instructions to correct the judgment.

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SO ORDERED.
Dated at New Haven, Connecticut this 10th day of July, 2013.

/s/ Janet C. Hall
Janet C. Hall
United States District Judge

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