Guido v. United States of America

Filing 19

ORDER denying 1 --motion to vacate/set aside/correct sentence (2255) and for a hearing; denying a certificate of appealability; denying leave to appeal in forma pauperis; directing the clerk to ENTER JUDGMENT against Guido and to CLOSE the case. Signed by Judge Steven D. Merryday on 3/6/2017. (BK)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

UNITED STATES OF AMERICA
v.

CASE NO. 8:10-cr-325-T-23AEP
8:12-cv-2481-T-23AEP

GREGORY GUIDO
/

ORDER
Gregory Guido moves (Doc. 1) to vacate his sentence under 28 U.S.C. § 2255.
Guido challenges the validity of his convictions for money laundering and for
conspiring to commit wire fraud. Guido serves 108 months of imprisonment. The
United States admits that Guido timely moved to vacate. (Doc. 11 at 2)
FACTS
Through an illicit income-tax credit scheme, Guido and co-defendant George
Calvert defrauded the IRS of several million dollars.1 Using phony contracts with
landfill operators and phony engineering reports, Guido and Calvert falsely claimed
the ownership of assignable methane-fuel income-tax credits. Investors received
unjustified tax-refunds based on the fraudulent methane-fuel income-tax credit, and
Guido and Calvert received a part of each investor’s unjustified tax refund.

This summary of the facts derives from the United States’s response (Doc. 11), the
sentencing transcript (Cr. Doc. 172), and the pre-sentence investigation report.
1

The jury found Guido guilty of conspiracy to commit wire fraud under
18 U.S.C. § 371 (count one) and conspiracy to launder money under 18 U.S.C.
§ 1957 (counts two through seven and count ten). At sentencing, Offense Level 34,
Criminal History Category I, yielded an advisory guidelines range of 151 to 188
months of imprisonment. Guido received a below-guidelines sentence of sixty
months on count one and 108 months on counts two through seven, to run
concurrently. Guido chose not to appeal.
INEFFECTIVE ASSISTANCE OF COUNSEL
Guido claims ineffective assistance of counsel, a difficult claim to sustain.
“[T]he cases in which habeas petitioners can properly prevail on the ground of
ineffective assistance of counsel are few and far between.” Waters v. Thomas, 46 F.3d
1506, 1511 (11th Cir. 1995) (en banc) (quoting Rogers v. Zant, 13 F.3d 384, 386
(11th Cir. 1994)). As Sims v. Singletary, 155 F.3d 1297, 1305 (11th Cir. 1998),
explains, Strickland v. Washington, 466 U.S. 668 (1984), governs an ineffective
assistance of counsel claim:
The law regarding ineffective assistance of counsel claims is
well settled and well documented. In Strickland v. Washington,
466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the
Supreme Court set forth a two-part test for analyzing ineffective
assistance of counsel claims. According to Strickland, first, the
defendant must show that counsel’s performance was deficient.
This requires showing that counsel made errors so serious that
counsel was not functioning as the “counsel” guaranteed the
defendant by the Sixth Amendment. Second, the defendant
must show that the deficient performance prejudiced the
defense. This requires showing that counsel’s errors were so
serious as to deprive the defendant of a fair trial, a trial whose
result is reliable. Strickland, 466 U.S. at 687, 104 S. Ct. 2052.
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Strickland requires proof of both deficient performance and consequent
prejudice. Strickland, 466 U.S. at 697 (“There is no reason for a court deciding an
ineffective assistance claim . . . to address both components of the inquiry if the
defendant makes an insufficient showing on one.”); Sims, 155 F.3d at 1305 (“When
applying Strickland, we are free to dispose of ineffectiveness claims on either of its two
grounds.”). “[C]ounsel is strongly presumed to have rendered adequate assistance
and made all significant decisions in the exercise of reasonable professional
judgment.” Strickland, 466 U.S. at 690. “[A] court deciding an actual ineffectiveness
claim must judge the reasonableness of counsel’s challenged conduct on the facts of
the particular case, viewed as of the time of counsel’s conduct.” 466 U.S. at 690.
Strickland requires that “in light of all the circumstances, the identified acts or
omissions were outside the wide range of professionally competent assistance.”
466 U.S. at 690.
Guido must demonstrate that counsel’s alleged error prejudiced the defense
because “[a]n error by counsel, even if professionally unreasonable, does not warrant
setting aside the judgment of a criminal proceeding if the error had no effect on the
judgment.” Strickland, 466 U.S. at 691–92. To meet this burden, Guido must show
“a reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694.

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Strickland cautions that “strategic choices made after thorough investigation
of law and facts relevant to plausible options are virtually unchallengeable; and
strategic choices made after less than complete investigation are reasonable precisely
to the extent that reasonable professional judgments support the limitations on
investigation.” 466 U.S. at 690–91. Guido cannot meet his burden by showing only
that the avenue chosen by counsel proved unsuccessful.
The test has nothing to do with what the best lawyers would
have done. Nor is the test even what most good lawyers would
have done. We ask only whether some reasonable lawyer at the
trial could have acted, in the circumstances, as defense counsel
acted at trial . . . . We are not interested in grading lawyers’
performances; we are interested in whether the adversarial
process at trial, in fact, worked adequately.

White v. Singletary, 972 F.2d 1218, 1220–21 (11th Cir. 1992); accord Chandler v.
United States, 218 F.3d 1305, 1313 (11th Cir. 2000) (“To state the obvious: the trial
lawyers, in every case, could have done something more or something different. So,
omissions are inevitable . . . . [T]he issue is not what is possible or ‘what is prudent
or appropriate, but only what is constitutionally compelled.’”) (en banc) (quoting
Burger v. Kemp, 483 U.S. 776, 794 (1987)); Jones v. Barnes, 463 U.S. 745, 751 (1983)
(holding that counsel has no duty to raise a non-frivolous claim).
Ground One
Fifteen months before Guido’s indictment and again two weeks before trial,
the United States proposed a plea with a maximum sentence of five years of
imprisonment. (Doc. 11-1 at 2–4) The proposed plea required Guido’s cooperation,
restitution, and payment of back taxes. Guido’s co-conspirator, Robert Henry
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Anderson, accepted the same proposed plea in another criminal case and received
twenty-one months of imprisonment. United States v. Robert Henry Anderson, case
no. 8:09-cr-177-T-27MAP (Doc. 69).
Guido alleges that he rejected the United States’s proposed plea because
counsel failed to disclose the twelve- to fifteen-year sentence that Guido faced under
the sentencing guidelines if convicted at trial. (Doc. 1 at 14–16; Doc. 14 at 3–9)
Guido asserts that, but for counsel’s failure to advise him of the consequences under
the sentencing guidelines of a guilty plea compared to a jury verdict, he would have
pleaded guilty and received a lesser sentence.
Counsel’s May 9, 2013 affidavit states that, in consideration of the proposed
plea, counsel told Guido that before sentencing enhancements and based on the loss
amount in the civil complaint, he faced ten years of imprisonment. (Doc. 11-1 at 3)
Guido contends that the conversation never occurred. (Doc. 1 at 14; Doc. 14 at 3–4)
Guido asserts that counsel’s contemporaneous pre-trial memorandums, which fail to
mention that counsel disclosed the sentence Guido faced under the sentencing
guidelines, rebut the affidavit.
Even assuming that counsel performed ineffectively by not disclosing during
plea negotiations the twelve- to fifteen-year sentence Guido faced under the
sentencing guidelines, Guido fails to show prejudice. The record shows that Guido
knew that the statutory penalties equal or exceed fifteen or more years of
imprisonment. At the bond hearing, Guido acknowledged that the charges in the

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indictment might yield fifteen or more years of imprisonment.2 Given Guido’s
established and admitted knowledge of the statutory penalties, Guido fails to show a
reasonable probability that, but for counsel’s failure to disclose the sentence he faced
under the sentencing guidelines, he would have pleaded guilty. Because Guido
shows no prejudice, Guido’s challenge lacks merit.
Ground Two
Initially, the United States refused to propose a plea that capped imprisonment
at five years. (Doc. 11-1 at 7) In exchange for Guido’s cooperation, counsel
successfully negotiated a proposed plea with a maximum penalty of five years of
imprisonment, the same proposed plea Guido’s co-conspirator Anderson accepted.
(Doc. 11-1 at 7-15) Guido alleges that counsel failed to negotiate a more favorable
plea. (Doc. 1 at 17) By his own admission, Guido refused to cooperate with the
United States unless the plea agreement guaranteed probation and no restitution.
(Doc. 1 at 17) Counsel refused to propose a probation-only plea and advised Guido
that the United States would terminate negotiations. (Doc.11-1 at 11) Guido has not
overcome the strong presumption that counsel performed reasonably and with sound
strategy by not proposing a probation-only plea. See Chandler, 218 F.3d at 1314.
Because counsel need not propose a plea the United States plainly would not accept,
the ineffective assistance of counsel claim fails.

By signing the order setting conditions of release, Guido acknowledged (1) that the charges
involve penalties that equal or exceed imprisonment for a term of fifteen years or more, (2) that he
read the order setting conditions of release, and (3) that he fully understood the conditions of his
release and the possible penalties for violating those conditions. (Cr. Doc. 18 at 3-4)
2

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Also, Guido offers no evidence that the United States would have proposed
a more favorable plea after further negotiation. Whether to offer a plea agreement
and whether to include certain terms in that agreement are both matters of
prosecutorial discretion. See Weatherford v. Bursey, 429 U.S. 545, 561 (1977) (“[T]here
is no constitutional right to plea bargain; the prosecutor need not do so if he prefers
to go to trial.”). “[T]he successful negotiation of a plea agreement involves factors
beyond the control of counsel, including . . . the cooperation of the prosecutor, who
has no obligation to offer such an agreement.” United States v. Hall, 212 F.3d 1016,
1022 (7th Cir. 2000). Guido speculates that the United States would have negotiated
further and that Guido would have accepted a plea that entailed imprisonment or
restitution. Speculation cannot establish Guido’s entitlement to relief.
The record refutes Guido’s contention that he would have pleaded guilty if
the proposed plea entailed imprisonment or restitution. Counsel’s affidavit and
correspondence show that Guido refused to assist the United States and maintained
his innocence through trial. (Doc. 11-1 at 4–5, 9, 21) Guido affirms that he rejected
the proposed plea because the proposed plea required that he testify against others.
(Doc. 1 at 17) After the trial, counsel advised Guido that cooperation might result in
a lesser sentence. (Doc. 11-1 at 21) But Guido remained uncooperative. Guido’s
failure to establish prejudice precludes relief based on ineffective assistance of
counsel.

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Ground Three
Guido alleges that counsel failed to establish during the cross-examination of
an IRS agent that the United States would have lost less money if the undercover
agent had exposed the scheme during the initial investigation. (Doc. 1 at 18) Guido
asserts that counsel’s defective performance resulted in a greater loss calculation and
a greater sentence.
An undercover agent owes the subject of a criminal investigation no duty to
stop the crime. Counsel’s failure at trial to elicit testimony supporting a frivolous
argument is not deficient performance. Freeman v. Attorney General State of
Florida, 536 F.3d 1225, 1233 (11th Cir. 2008). Guido fails to show that the IRS
agent’s testimony about the United States’s loss over the course of the investigation
would have resulted in a lesser sentence.
Citing Brady v. Maryland, 373 U.S. 83 (1963), Guido alleges that the United
States failed to disclose favorable evidence, which purportedly shows that some
landfill sites had legitimate methane-fuel facilities. (Doc. 1 at 19) Based on the
prosecutor’s comment at the sentencing hearing that “[p]erhaps the landfills, in a
couple of instances, but for the most part no one was entitled, to cause the IRS to
pay out millions of dollars on these claims,” Guido requests a new trial or a new
sentence. (Cr. Doc. 172 at 23) Guido asserts that the allegedly undisclosed evidence
would change the outcome of the trial. (Doc. 1 at 19–20)

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To prevail under Brady, Guido must show “a reasonable probability that, had
the evidence been disclosed to the defense, the result of the proceeding would have
been different.” United States v. Alzate, 47 F.3d 1103, 1109–10 (11th Cir. 1995).
Guido forfeited this substantive claim because he could have raised the claim on
direct appeal. Procedurally defaulted, the claim is not reviewable on the merits
absent a showing either of cause and prejudice or actual innocence. Bousley v. United
States, 523 U.S. 614 (1998); United States v. Frady, 456 U.S. 152 (1982). To show
cause for not raising the ground on direct appeal, Guido must show that “some
objective factor external to the defense impeded counsel's efforts” to raise the claim.
Lynn v. United States, 365 F.3d 1225, 1235 n. 20 (2004). “To establish ‘prejudice,’ a
petitioner must show that there is at least a reasonable probability that the result of
the proceeding would have been different.” Henderson v. Campbell, 353 F.3d 880, 892
(11th Cir. 2003).
Guido does not assert cause, such as ineffective assistance, for failing to
bring a Brady challenge to the prosecutor’s alleged non-disclosure. Even assuming
counsel’s purported defective performance constitutes cause for the procedural
default, Guido shows no prejudice. No facts support Guido’s claim that legitimate
methane-fuel facilities exculpate Guido of the fraud conviction. See Collins v. United
States, 481 Fed. Appx. 525, 528 (11th Cir. 2012) (“Unsubstantiated and conclusory
allegations are insufficient to establish constitutional violations that will support
granting a motion to vacate.”). Ample evidence supports the conviction. Because

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Guido fails to show prejudice from the purportedly undisclosed evidence, the Brady
violation presents no basis for Section 2255 relief.
Ground Four
Guido argues that counsel performed ineffectively by failing to raise at
sentencing the disparity between his 108-month sentence and an elderly
co-defendant’s 84-month sentence. (Doc. 1 at 20) As explained at Guido’s
sentencing, Guido and Calvert are not similarly situated due to Calvert’s age and
infirmity:
Mr. Calvert’s sentence was reduced primarily because of his age
and infirmity. I would say that his sentence may prove to him as
rigorous as a sentence, perhaps almost twice as long, to a person
of 20 year[s] — or more years less age and notably better health.
But looking[,] casting my eyes upon the three sentences, they
seem to me in terms of raw time, Mr. Guido gets the largest
amount of time. I can think of some arguments against that, but,
making the two adjustments that I just mentioned, one for
cooperation and one for age and infirmity, these sentences seem
to me to be fair and reasonable and not disparate in any
significant way.

Transcript of Sentencing Proceedings at 53-54 (Cr. Doc. 172)
Within the bounds of reasonable professional judgment, counsel declined to
challenge the sentencing disparity. Freeman, 206 F.3d at 1143 (“We must respect
the counsel's tactics if they seem ‘reasonable considering all the circumstances.’”
(quoting Strickland )). Sentenced below the guidelines, Guido offers no evidence
that a challenge to the disparity would have resulted in a shorter sentence.

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Guido faults counsel for failing to argue successfully against the imposition
of the sentencing guidelines’s leadership enhancement. (Doc. 1 at 20) At sentencing,
counsel objected to the enhancement, an objection overruled because Guido received
approximately twenty-five percent of the proceeds and occupied a “significant
operating responsibility in the implementation of this scheme.” Transcript of
Sentencing Proceedings at 42 (Cr. Doc. 172 at 9–12). Guido cannot show that his
counsel’s performance was deficient. Relying on co-conspirator Anderson’s
testimony that Guido was a “neophyte in the business,” Guido alleges he played a
minor role in the scheme. Guido fails to substantiate that, as a neophyte, he had
minor operating responsibility in the scheme. Guido’s claim warrants denial.
Evidentiary Hearing
Guido requests an evidentiary hearing. This case warrants no evidentiary
hearing because the face of the motion, the annexed exhibits, and the earlier
proceedings show that the movant is not entitled to relief. Broadwater v. United States,
292 F.3d 1302, 1303 (11th Cir. 2003).
Accordingly the motion under Section 2255 to vacate the sentence (Doc. 1) is
DENIED. The clerk is directed to enter judgment against Guido and to close this
case.

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DENIAL OF BOTH
CERTIFICATE OF APPEALABILITY
AND LEAVE TO APPEAL IN FORMA PAUPERIS
Guido is not entitled to a certificate of appealability. A prisoner moving under
Section 2255 has no absolute entitlement to appeal a district court’s denial of his
motion to vacate. 28 U.S.C. § 2253(c)(1). Rather, a district court must first issue a
certificate of appealability. Section 2253(c)(2) permits issuing a certificate of
appealability “only if the applicant has made a substantial showing of the denial of a
constitutional right.” To merit a certificate of appealability, Guido must show that
reasonable jurists would find debatable both (1) the merits of the underlying claims
and (2) the procedural issues he seeks to raise. See 28 U.S.C. § 2253(c)(2); Slack v.
McDaniel, 529 U.S. 473, 478 (2000); Eagle v. Linahan, 279 F.3d 926, 935 (11th Cir.
2001). Because Guido fails to show that reasonable jurists would debate the merits of
the claims and the procedural issues, Guido is entitled to neither a certificate of
appealability nor an appeal in forma pauperis.
Accordingly, a certificate of appealability is DENIED. Leave to appeal in
forma pauperis is DENIED. Guido must obtain permission from the circuit court to
appeal in forma pauperis.
ORDERED in Tampa, Florida, on March 6, 2017.

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