Sekular v. USA - 2255

Filing 2

MEMORANDUM OPINION. Signed by Judge Deborah K. Chasanow on 11/7/2016. (kns, Deputy Clerk)(c/m 11/8/16)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
SEAN CLARK SEKULAR
:
v.

:

Civil Action No. DKC 13-3458
Criminal No. DKC 12-0624-002

:
UNITED STATES OF AMERICA
:
MEMORANDUM OPINION
Presently pending and ready for resolution in this case is
a motion filed by Petitioner Sean Clark Sekular (“Petitioner”)
to vacate, set aside, or correct his sentence pursuant to 28
U.S.C. § 2255 (ECF No. 251).1

The issues have been briefed, and

the court now rules, no hearing being deemed necessary.
Rule

105.6.

For

the

following

reasons,

the

motion

Local

will

be

denied.
I.

Background
On December 3, 2012, Petitioner was indicted for conspiracy

to distribute and possess with the intent to distribute 100
kilograms or more of marijuana, in violation of 21 U.S.C. § 846,
and conspiracy to commit money laundering, in violation of 18
U.S.C. § 1956(h).
pled

guilty

to

(ECF No. 1).
the

charges

On May 24, 2013, Petitioner

against

him.

(ECF

No.

139).

Pursuant to his signed plea agreement, Petitioner had a base
1

All citations to electronic court filings refer to the
docket in the criminal case.

offense level of 30 under the U.S. Sentencing Guidelines (the
“Guidelines”)

in

effect

at

the

time.

(Id.

at

4).

After

enhancements and reductions, Petitioner’s overall offense level
was decreased by three levels to level 27, which, combined with
his category I criminal history, provided a Guidelines range of
70-87 months imprisonment.

(Id. at 5; ECF No. 163, at 20).

was sentenced to a term of 78 months imprisonment.2
219).

Petitioner did not appeal.

He

(ECF No.

On November 26, 2013, he

timely filed the pending motion to vacate, set aside, or correct
his sentence pursuant to 28 U.S.C. § 2255.

(ECF No. 251).

The

government opposed (ECF No. 261), and Petitioner filed a reply
(ECF

Nos.

sentenced

301).
pursuant

He
to

makes
the

a

single

correct

claim

that

guideline,

he

i.e.,

was
for

not
no

kilograms of marijuana.
II.

Motion to Vacate, Set Aside, or Correct Sentence
A.

Standard of Review

Section 2255 requires a petitioner asserting constitutional
error to prove by a preponderance of the evidence that “the
sentence was imposed in violation of the Constitution or laws of
the United States, or that the court was without jurisdiction to
impose such sentence, or that the sentence was in excess of the

2

Petitioner’s sentence was later reduced from 78 to 64
months after an unopposed motion for a reduction under 18 U.S.C.
§ 3582(c)(2) based on retroactive application of Amendment 782
to the Guidelines. (ECF No. 332).
2

maximum authorized by law[.]”

28 U.S.C. § 2255(a).

If the

§ 2255 motion, along with the files and records of the case,
conclusively

shows

that

the

petitioner

is

not

entitled

to

relief, a hearing on the motion is unnecessary and the claims
raised

in

the

motion

may

be

summarily

denied.

See

id.

§ 2255(b).
B.

Procedural Default

As the government points out, Petitioner never brought the
claim he brings in this motion on a direct appeal.

The ordinary

rule is that “an error can be attacked on collateral review only
if first challenged on direct review.”

United States v. Harris,

183 F.3d 313, 317 (4th Cir. 1999); see also United States v.
Sanders,

247

F.3d

139,

144

(4th

Cir.

2001).

“In

order

to

collaterally attack a conviction or sentence based upon errors
that could have been but were not pursued on direct appeal, the
movant must show cause and actual prejudice resulting from the
errors of which he complains[.]”

United States v. Mikalajunas,

186 F.3d 490, 492-93 (4th Cir. 1999).
procedural
defense,

default

such

as

“must
the

A showing of cause for a

turn

on

something

external

novelty

of

the

or

effective assistance of counsel.”

claim

Id. at 493.

a

to

denial

the
of

To establish

actual prejudice, the petitioner must show that the error worked
to his actual and substantial disadvantage, rather than merely

3

creating a possibility of prejudice.

Murray v. Carrier, 477

U.S. 478, 494 (1986).
Petitioner
result

of

alleges

that

ineffective

his

procedural

assistance

of

default

counsel.

is

the

Claims

of

ineffective assistance of counsel are generally governed by the
well-settled standard adopted by the United States Supreme Court
in Strickland v. Washington, 466 U.S. 668 (1984).
a

Strickland

attorney’s

claim,

the

performance

reasonableness

and

petitioner

fell

that

he

Strickland, 466 U.S. at 688.
counsel’s

conduct

falls

below

must
an

suffered

show

To prevail on
both

objective
actual

that

his

standard

prejudice.

of
See

There is a strong presumption that

within

a

wide

range

of

reasonably

professional conduct, and courts must be highly deferential in
scrutinizing

counsel’s

performance.

Strickland,

466

U.S.

at

688–89; Bunch v. Thompson, 949 F.2d 1354, 1363 (4th Cir. 1991).
Petitioner

asserts

that

his

appeal of his original sentence.
a

criminal

defendant

has

counsel

refused

to

file

an

Refusal to file an appeal that

requested

constitutes

ineffective

assistance of counsel regardless of whether it would prejudice
the outcome of defendant’s case.

U.S. v. Peak, 992 F.2d 39, 41-

42 (citing Rodriquez v. U.S., 395 U.S. 327, 329-330 (1969)); see
also

U.S.

v.

Wright,

538

Fed.App’x

237

(4th

Cir.

2013)

(“[C]ounsel’s failure to file a notice of appeal as directed
constitutes

per

se

ineffective
4

assistance.”)

(unpublished

opinion).

Petitioner

admits,

however,

that

counsel

did

not

refuse outright, but, rather, “they convinced him it was an
impracticable exercise.”

(Id. at 5).

In short, counsel advised

against appeal and he accepted their advice.3

See Roe v. Flores-

Ortega, 528 U.S. 470, 478 (2000) (“If counsel has consulted with
the defendant, the question of deficient performance is easily
answered:
manner

Counsel

only

instructions
therefore,

by

performs
failing

with

cannot

in

to

respect
justify

a

professionally

follow
to

an

his

the

defendant's

appeal.”).

failure

unreasonable

to

express

Petitioner,

appeal

by

way

of

ineffective assistance of counsel, and his claim that could have
been raised on appeal is procedurally defaulted.
C.
Even

Petitioner’s Base Offense Level
if

Petitioner

claim here lacks merit.
an

error

in

had

procedurally

defaulted,

his

Petitioner contends that the court made

establishing

sentencing purposes.

not

his

base

offense

level

(ECF No. 251, at 4).

of

30

for

Specifically, he

says that the indictment and plea agreement indicated that he
was

charged

with

possession

with

intent

to

distribute

100

kilograms of marijuana, whereas the Guidelines establish a base
3

To the degree that Petitioner challenges the effectiveness
of this advice, counsel’s assistance falls well within the
standards described above.
After Petitioner had waived his
right to appeal his sentence unless his term of imprisonment
exceeded the range set forth for offense level 27 under the plea
agreement, it was certainly reasonably professional to advise
against an appeal. (ECF No. 139, at 7).
5

level of 30 for a drug quantity of 700-1,000 kilograms.
ECF No. 251-1, at 4).

(Id.;

Under the Guidelines, he argues, he

should have started at a base level of 26, which covers drug
quantities of 100-400 kilograms of marijuana.

(See ECF No. 251-

1, at 3).
Taking Petitioner’s argument at face value, he seems to
have confused the quantity identified in the name of crime to
which he pled guilty with the drug quantities actually involved
in

his

conspiracy.

Although

the

offense

for

which

he

was

convicted was “conspiracy to distribute and possess with intent
to

distribute

government’s
kilograms.

100

case

kilograms

against

or

of

was

him

more

marijuana,”

not

based

on

exactly

the
100

Rather, “100 kilograms or more” meant significantly

more in this case.

Inclusion of the quantity 100 kilograms in

the name of the offense could cause confusion in some cases, but
it was quite clear in this case that drug quantities of 7001,000 kilograms were the basis of his sentence.
In fact, it is hard to square Petitioner’s actions during
the

criminal

proceedings

with

his

present

argument

that

he

“truly believed his base offense level was originating at 26.”
(ECF No. 301, at 7).

First, Petitioner’s signed plea agreement

explicitly stated, “The base level is 30, because the quantity
of marijuana attributable to the Defendant was more than 700
kilograms but less than 1,000 kilograms.”
6

(ECF No. 139, at 4).

Second, a statement of stipulated facts presented to the court
at the Rule 11 hearing similarly stated that, over the course of
the drug conspiracy in which he participated, he “conspired to
distribute and possess with intent to distribute 700 kilograms
or more but less than 1,000 kilograms or marijuana.”
139-1, at 2; 163, at 6).

(ECF Nos.

In addition to signing the plea

agreement, Petitioner separately signed this statement of facts,
(ECF No. 139-1, at 3).4

which was less than three pages long.

At his Rule 11 hearing, Petitioner and his lawyer affirmed that
they

had

reviewed

this

information

together.

Hearing

Audio

Recording at 2:47:15-2:48:08 PM, USA v Mancilla-Brevichet, No.
12-cr-00624-DKC-2 (hereinafter “Rule 11 Recording”).
More importantly, that statement of facts was read aloud at
the Rule 11 hearing, Rule 11 Recording at 2:29:31-2:35:47 PM,
and Petitioner admitted that these facts were true, Rule 11
Recording

at

2:37:08-39

PM.

“Absent

extraordinary

circumstances, the truth of sworn statements made during a Rule
11 colloquy is conclusively established, and a district court
should, without holding an evidentiary hearing, dismiss any §
2255

motion

that

necessarily

contradict the sworn statements.”

relies

on

allegations

that

United States v. Lemaster,

403 F.3d 216, 221–22 (4th Cir. 2005); Fields v. Attorney Gen. of

4

Petitioner’s counsel also signed both the plea and the
statement of facts.
7

Md.,

956 F.2d 1290, 1299 (4th

Cir. 1992) (“Absent clear and

convincing evidence to the contrary, a defendant is bound by the
representations he makes under oath during a plea colloquy”).
Petitioner

now

argues

that

he

had

not

been

aware

of

the

stipulated facts until just before the hearing and that the
government added the 700-1,000 kilogram range for the first time
in

that

statement

of

facts.

As

noted,

the

same

range

is

mentioned on page four of the plea agreement itself, but even if
Petitioner had not noticed that important range prior to the
hearing, the record demonstrates that he clearly understood what
he was admitting before the court.
were

true,

their

Petitioner,

reading,

When asked whether the facts

apparently

corrected

a

paying

mistake

that

attorney made while reading the statement.
2:35:47-2:37:08

PM.

Because

that

close
the

attention

to

government’s

Rule 11 Recording at

attorney

accidentally

said

that the crime was conspiracy to distribute and possession with
intent to distribute “1,000 kilograms or more” instead of “100
kilograms or more” when reading page one, Petitioner consulted
with his lawyer and had the error corrected before admitting to
the facts as read.
government

and

the

Rule 11 Recording at 2:35:47-2:37:08 PM. The
court

confirmed

for

charge was for 100 kilograms or more.
2:30:00-2:30:22 PM.
arisen

from

the

Petitioner

that

the

Rule 11 Recording at

To dispel any confusion that might have
admission

on
8

page

one,

the

court

then

specifically pointed out that the more important concession was
the drug quantity of 700-1,000 kilograms on page two.

Rule 11

Recording

at

2:37:08-39

he

admitting

to

what

PM.

was

Having

written

in

clarified

the

that

statement,

was

Petitioner

agreed that the facts were true and that he wanted to plead
guilty to the charges.

(Id.).

The same statement of facts was

included in the presentencing report (ECF No. 163, at 6), which
Petitioner’s
reviewed

counsel

with

government

confirmed

Petitioner

and

the

(ECF

court

at
No.

also

sentencing
255,

at

3),

referenced

sentencing (ECF No. 255, at 12, 17, 26).

that

he

had

and

both

the

facts

at

these

Petitioner, however,

did not challenge the drug quantities range until the present
motion.
In short, the record shows quite clearly that Petitioner
was aware of the charges and drug quantities for which he was
indicted,

of

the

evidence

the

government

purported

it

could

prove, of the terms of the plea agreement, and of the sentencing
range that attached to it.

His sentence, based on this record,

was reasonable and authorized by law.

Petitioner therefore has

not shown that his sentence warrants correction.
III. Certificate of Appealability
Pursuant to Rule 11(a) of the Rules Governing Proceedings
under 28 U.S.C. § 2255, the court is also required to issue or
deny a certificate of appealability when it enters a final order
9

adverse to the applicant.

A certificate of appealability is a

“jurisdictional

prerequisite”

earlier order.

United States v. Hadden, 475 F.3d 652, 659 (4th

Cir. 2007).

to

an

appeal

from

the

court’s

A certificate of appealability may issue “only if

the applicant has made a substantial showing of the denial of a
constitutional right.”

28 U.S.C. § 2253(c)(2).

Where the court

denies petitioner’s motion on its merits, a petitioner satisfies
this

standard

by

demonstrating

that

reasonable

jurists

would

find the court’s assessment of the claim debatable or wrong.
Slack v. McDaniel, 529 U.S. 473, 484 (2000); see also Miller-El
v. Cockrell, 537 U.S. 322, 336–38 (2003).

When the district

court denies relief on procedural grounds, the prisoner must
demonstrate

both

that

the

dispositive

procedural

ruling

is

debatable, and that the petition states a debatable claim of the
denial of a constitutional right.

Slack, 529 U.S. at 484-85.

Upon review of the record, the court finds that Petitioner
does not satisfy the above standards.

Accordingly, the court

will decline to issue a certificate of appealability on the
issues which have been resolved against Petitioner.

10

IV.

Conclusion
For the foregoing reasons, Petitioner Sean Clark Sekular’s

motion to vacate, set aside, or correct his sentence pursuant to
28 U.S.C. § 2255 will be denied.

A separate order will follow.

/s/
DEBORAH K. CHASANOW
United States District Judge

11