Sekular v. USA - 2255
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
Civil Action No. DKC 13-3458
Criminal No. DKC 12-0624-002
UNITED STATES OF AMERICA
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.
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).
(ECF No. 1).
On May 24, 2013, Petitioner
Pursuant to his signed plea agreement, Petitioner had a base
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
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
Petitioner did not appeal.
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).
government opposed (ECF No. 261), and Petitioner filed a reply
kilograms of marijuana.
Motion to Vacate, Set Aside, or Correct Sentence
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
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).
maximum authorized by law[.]”
28 U.S.C. § 2255(a).
§ 2255 motion, along with the files and records of the case,
relief, a hearing on the motion is unnecessary and the claims
As the government points out, Petitioner never brought the
claim he brings in this motion on a direct appeal.
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.
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).
A showing of cause for a
effective assistance of counsel.”
Id. at 493.
actual prejudice, the petitioner must show that the error worked
to his actual and substantial disadvantage, rather than merely
creating a possibility of prejudice.
Murray v. Carrier, 477
U.S. 478, 494 (1986).
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).
Strickland, 466 U.S. at 688.
To prevail on
There is a strong presumption that
professional conduct, and courts must be highly deferential in
688–89; Bunch v. Thompson, 949 F.2d 1354, 1363 (4th Cir. 1991).
appeal of his original sentence.
Refusal to file an appeal that
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
(“[C]ounsel’s failure to file a notice of appeal as directed
refuse outright, but, rather, “they convinced him it was an
(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
ineffective assistance of counsel, and his claim that could have
been raised on appeal is procedurally defaulted.
Petitioner’s Base Offense Level
claim here lacks merit.
Petitioner contends that the court made
(ECF No. 251, at 4).
says that the indictment and plea agreement indicated that he
kilograms of marijuana, whereas the Guidelines establish a base
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).
level of 30 for a drug quantity of 700-1,000 kilograms.
ECF No. 251-1, at 4).
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
convicted was “conspiracy to distribute and possess with intent
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
“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.”
(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).
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
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
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 §
contradict the sworn statements.”
United States v. Lemaster,
403 F.3d 216, 221–22 (4th Cir. 2005); Fields v. Attorney Gen. of
Petitioner’s counsel also signed both the plea and the
statement of facts.
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”).
stipulated facts until just before the hearing and that the
government added the 700-1,000 kilogram range for the first time
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.
When asked whether the facts
attorney made while reading the statement.
Rule 11 Recording at
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.
Rule 11 Recording at 2:35:47-2:37:08 PM. The
charge was for 100 kilograms or more.
Rule 11 Recording at
To dispel any confusion that might have
specifically pointed out that the more important concession was
the drug quantity of 700-1,000 kilograms on page two.
agreed that the facts were true and that he wanted to plead
guilty to the charges.
The same statement of facts was
included in the presentencing report (ECF No. 163, at 6), which
sentencing (ECF No. 255, at 12, 17, 26).
did not challenge the drug quantities range until the present
In short, the record shows quite clearly that Petitioner
was aware of the charges and drug quantities for which he was
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
adverse to the applicant.
A certificate of appealability is a
United States v. Hadden, 475 F.3d 652, 659 (4th
A certificate of appealability may issue “only if
the applicant has made a substantial showing of the denial of a
28 U.S.C. § 2253(c)(2).
Where the court
denies petitioner’s motion on its merits, a petitioner satisfies
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
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.
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.
DEBORAH K. CHASANOW
United States District Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?