Zimmerman v. USA

Filing 2

ORDER. IT IS ORDERED that D's Motion to vacate, set aside, or correct sentence (DKT #46 in Case No. 3:05-cr-00241-LRH-VPC-1) is DENIED. Signed by Judge Larry R. Hicks on 9/13/2011. (Copies have been distributed pursuant to the NEF - PM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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UNITED STATES OF AMERICA,

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Plaintiff,

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v.

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JAMES BRETT ZIMMERMAN,

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Defendant.

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3:05-CR-00241-LRH-VPC
ORDER

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Before the court is defendant James Zimmerman’s motion under 28 U.S.C. § 2255 to

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vacate, set aside, or correct his sentence (#461). The United States filed an opposition (#50), and

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thereafter Zimmerman filed a reply (#51), a supplemental reply and affidavit (#59), a motion for an

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evidentiary hearing (#61), and a motion for order of the court (#62).

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I.

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Procedural History
On December 21, 2005, Zimmerman was indicted on one count of bank robbery in violation

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of 18 U.S.C. § 2113(a). Doc. #1. Following his initial plea of not guilty, on January 22, 2007,

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Zimmerman changed his plea to guilty. Doc. #38. On May 7, 2007, he was sentenced to two

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hundred forty (240) months incarceration, thirty-six (36) months of supervised release, a $100

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assessment, and $30,633.00 restitution. Doc. #43. He filed no appeal.

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Refers to the court’s docket entry number.

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On April 14, 2008, Zimmerman filed the present § 2255 motion to vacate, set aside, or

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correct his sentence on five grounds. Doc. #46. In response to the government’s opposition,

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Zimmerman conceded Grounds Three and Four. Doc. #51, p.1. Following this court’s

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determination that Zimmerman was entitled to an evidentiary hearing on his claim of ineffective

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assistance of counsel, Doc. #64, the court appointed counsel for Zimmerman and held an

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evidentiary hearing on September 7, 2011.

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II.

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Discussion
Pursuant to § 2255, a prisoner may move the court to vacate, set aside, or correct a sentence

“upon the ground that the sentence was imposed in violation of the Constitution or laws of the

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United States, or that the court was without jurisdiction to impose such sentence, or that the

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sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral

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attack.” 28 U.S.C. § 2255(a).

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A. Ground One: Threat of Additional Charges

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Zimmerman first contends that his guilty plea was unlawfully coerced by the government’s

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threat of indicting him on two additional bank robberies. He argues that the two charges should

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have been included in the original indictment, and the government held back the charges to use

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them as leverage in plea negotiations.

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Although a criminal defendant may not be punished for exercising his right to assert his

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innocence at trial, it is not impermissible for the government during plea negotiations to threaten

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additional charges that legitimately could be brought as a means of persuading the defendant to

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accept a plea agreement. Bordenkircher v. Hayes, 434 U.S. 357, 364-65 (1978). “As a practical

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matter, in short, this case would be no different if the grand jury had indicted [the defendant] as a

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recidivist from the outset, and the prosecutor had offered to drop that charge as part of the plea

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bargain.” Id. at 360-61. Zimmerman’s motion shall therefore be denied on Ground One.

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B. Ground Two: Threat of a Life Sentence

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Zimmerman next contends that his guilty plea should be invalidated as induced by a false

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statement of fact in the plea agreement—namely, that “the Government will not pursue a life

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sentence under the ‘3 Strikes’ provision of the sentencing statutes if the defendant enters into this

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agreement.” Doc. #39, ¶ 10 (plea agreement); Doc. #46, p. 14 (motion). Zimmerman argues that

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this statement falsely implies that the Government could pursue such a life sentence and falsely

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threatens such a sentence, when in fact he would have been ineligible for such a sentence because

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“[18 U.S.C.] § 3559(c)(3)(A) expressly exempts from [the] definition of ‘Serious Violent Felony’

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robberies that do not involve use of a firearm or dangerous weapon.” Doc. #51, p. 2 (reply).

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Zimmerman further argues that the threat of a life sentence was one of the main determining factors

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in deciding to plead guilty, and that without the false threat he would not have entered the plea and

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agreed not to oppose the Government’s recommendation of a twenty-year sentence. Doc. #46, pp.

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14-15.

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The court disagrees that the identified statement in the plea agreement was a false statement

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of fact or implied a false threat. It is immaterial whether in hindsight the Government may not

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have ultimately prevailed on any attempt to obtain a life sentence under § 3559(c), and the court

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makes no determination in that regard. At the time the threat was made and the statement was

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included in the plea agreement, the complete facts regarding Zimmerman’s criminal history were

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not yet known and whether a life sentence could have been imposed was not determinable with any

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certainty. Given that uncertainty, there was nothing false about the Government’s implied threat to

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pursue a life sentence or the statement in the plea agreement waiving the option of doing so.

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Zimmerman’s argument that § 3559(c)(3)(A) would have rendered him ineligible for a life

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sentence misses the mark. Even if the facts regarding his criminal history were known at the time,

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the potential applicability of that exception would not prevent the Government from seeking a life

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sentence under § 3559(c)(1). “[T]he exception found in § 3559(c)(3)(A) is an affirmative defense

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to a sentencing enhancement.” United States v. Kaluna, 192 F.3d 1188, 1196 (9th Cir. 1999) (en

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banc). It expressly places the burden on “the defendant” to prove “by clear and convincing

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evidence” that a prior offense did not involve the use or threatened use of a firearm or other

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dangerous weapon and did not result in death or serious bodily injury. 38 U.S.C. § 3559(c)(3)(A).

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As the exception places no burden on the Government, see Kaluna, 192 F.3d at 1196, nothing in

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subsection (c)(3)(A) would have prevented the Government from “pursing” a life sentence under

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subsection (c)(1).

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The court therefore finds that, given the early stage of Zimmerman’s plea, the limited
information at the time, and the inherent uncertainty regarding any future application of § 3559(c)

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at sentencing, the statement in the plea agreement that the Government “will not pursue a life

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sentence” was neither a false statement of fact nor a false threat. Zimmerman’s motion shall

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therefore be denied on Ground Two.

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C. Ground Five: Ineffective Assistance of Counsel

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Zimmerman contends that his counsel provided ineffective assistance by failing to

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investigate whether the Government could have successfully sought a life sentence under § 3559(c)

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before advising him regarding his plea. Zimmerman argues that he reluctantly pled guilty based on

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his counsel’s erroneous advice that the Government could pursue a life sentence, and that if counsel

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had investigated the matter, there is a reasonable6 probability that he would not have accepted the

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terms of the plea agreement because it would have been discovered that he was ineligible for a life

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sentence.

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To prevail on a Sixth Amendment claim of ineffective assistance of counsel, a defendant

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must show both deficient performance and prejudice. Strickland v. Washington, 466 U.S. 668, 687

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(1984). To establish deficient performance, the defendant must show that “counsel’s representation

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fell below an objective standard of reasonableness.” Id. at 688. “Even under de novo review, the

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standard for judging counsel’s representation is a most deferential one.” Harrington v. Richter, 131

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S. Ct. 770, 788 (2011). “A court considering a claim of ineffective assistance must apply a ‘strong

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presumption’ that counsel’s representation was within the ‘wide range’ of reasonable professional

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assistance. The challenger’s burden is to show ‘that counsel made errors so serious that counsel

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was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment.’” Richter,

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131 S. Ct. at 787 (quoting Strickland, 466 U.S. at 687, 689). “The question is whether an

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attorney’s representation amounted to incompetence under ‘prevailing professional norms,’ not

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whether it deviated from best practices or most common custom.” Id. at 788 (quoting Strickland,

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466 U.S. at 690).

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Regardless of the stage of the proceedings, the formulation of the standard is the same.

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Premo v. Moore, 131 S.Ct. 733, 742 (2011). But the substantial deference that must be accorded to

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counsel’s judgment may be measured in different ways in light of the circumstances at the

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particular stage of the case. Id. “Plea bargains are the result of complex negotiations suffused with

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uncertainty, and defense attorneys must make careful strategic choices in balancing opportunities

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and risks.” Id. at 741. Accordingly, in the case of an early plea, the court’s deference to counsel’s

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judgment must take into consideration such factors as the absence of a developed or an extensive

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record and the information then available to counsel, the array of possibilities and inherent

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uncertainties in what course the case may take, the risks of delaying the plea and giving the

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government the time to strengthen its case, and the fact that “each side, of necessity, risks

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consequences that may arise from contingencies or circumstances yet unperceived.” Id. at 741-42.

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“[S]trict adherence to the Strickland standard [is] all the more essential when reviewing the choice

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an attorney made at the plea bargain stage,” lest the court fall victim to “the distortions and

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imbalance that can inhere in a hindsight perspective” and bring instability to and potentially

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undermine the plea bargaining process itself, to the detriment of all involved. Id.

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Here, in exchange for Zimmerman’s guilty plea to one count of bank robbery and agreement
not to oppose the government’s request for a twenty-year sentence on that charge, the government
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agreed not to indict Zimmerman for two additional counts of bank robbery, each also subject to a

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potential twenty-year maximum, and not to pursue a life sentence under the federal “three strikes”

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statute. Doc. #39, ¶¶ 1, 10. At the time the government made the offer, whether an attempt to

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obtain a mandatory life sentence would have been successful was uncertain, but quite possible.

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The charged offense brought the statute into play. See 18 U.S.C. § 3559(c)(1). Bank robbery under

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§ 2113 facially qualifies as a “serious violent felony” under § 3559(c)(2)(F)(i), and the report that

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Zimmerman told the victim teller to “give me all $100's and $50's, hurry up, I am going to blow

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you off” made it unlikely that he could prove by clear and convincing evidence that the offense did

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not involve the threatened use of a firearm or other dangerous weapon for purposes of the exception

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in § 3559(c)(3)(A). It was also known at the time that Zimmerman had an extensive criminal

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history, making application of § 3559(c) a real possibility. However, neither side had developed

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the record sufficiently to determine whether Zimmerman actually had two qualifying prior

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convictions, and thus whether the government could have followed through on its threat. Indeed,

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because Zimmerman’s criminal history would have been relevant only at sentencing, in the absence

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of a concerted effort to obtain his criminal history before trial, neither side would have become

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aware until presentence investigation how the sentencing guidelines and statutes would apply.

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Zimmerman contends that because of the government’s threat and its importance in his

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decision to accept the plea, his counsel should have investigated his criminal history to determine

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his eligibility for a life sentence and the credibility of the government’s threat. Had that

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investigation been conducted, one possible scenario is that counsel might have uncovered favorable

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information, negated the government’s most potent bargaining chip, and obtained a more favorable

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plea bargain and sentence for Zimmerman. But the court cannot determine the reasonableness of

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counsel’s decision based on hindsight and information now available. See Moore, 131 S.Ct. at 741.

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Considering instead only the information available at the time, that scenario was far from certain,

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and the strategy of delaying the plea to further develop the facts would have exposed Zimmerman

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to substantial risks.

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First, it might have prompted the government to withdraw the offer, charge the additional

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two bank robberies, and take its chances in seeking three potential twenty-year terms and

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application of the “three strikes” statute. After all, the government was also bargaining with

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incomplete information, was facing the risks and expense of developing its case and going to trial,

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and in light of those risks and uncertainties was offering to not pursue both the two robberies it

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knew it could charge and the life sentence that it had reasonable grounds for suspecting might

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apply. Any delay on Zimmerman’s part to take another card, so to speak, might have prompted a

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decision by the government to withdraw the offer and play out the hand. Even if counsel’s

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investigation turned out favorably for Zimmerman on the three-strikes issue, he would still be

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facing two additional bank robbery counts and a potential sixty-year sentence.

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Second, the investigation might have confirmed Zimmerman’s eligibility for a mandatory

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life sentence, with no turning back. A delay to investigate Zimmerman’s criminal history would

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have given the government the opportunity to do the same. At that point, having gone to the

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trouble of obtaining the evidence, having probably indicted the three additional robberies, and

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needing a conviction on only one of the charges to obtain a mandatory life sentence under

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§ 3559(c)(1) (“shall”), the government would have had little incentive to plea bargain.

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In Moore, the Supreme Court determined that defense counsel’s failure to move to suppress

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a confession before advising the defendant to agree to a plea bargain did not constitute deficient

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performance, in light of “[w]hat counsel knew at the time” and the risk that “[d]elaying the plea for

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further proceedings would have given the State time to uncover additional incriminating evidence

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that could have formed the basis of a capital prosecution.” 131 S.Ct. at 740, 742-43. “In these

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circumstances, and with a potential capital charge lurking, Moore’s counsel made a reasonable

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choice to opt for a quick plea bargain.” Id. at 742-43.

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The same result is required here. Given what counsel knew (and did not know) at the

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time—including Zimmerman’s extensive criminal history, the potential that he could be subject to

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a mandatory life sentence, and the certainty that he was independently chargeable with two

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additional bank robberies with twenty-year maximums on each—the court cannot say that “no

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competent attorney” would have agreed to a plea bargain without conducting an investigation into

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his criminal history and potentially betting the farm in the process. Id. at 741. The court therefore

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concludes that Zimmerman has failed to establish deficient performance under Strickland and

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Moore. Zimmerman’s motion shall therefore be denied on Ground Five.

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IT IS THEREFORE ORDERED that Defendant’s motion under 28 U.S.C. § 2255 to vacate,
set aside, or correct his sentence (#46) is DENIED.

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IT IS SO ORDERED.

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DATED this 13th day of September, 2011.

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__________________________________
LARRY R. HICKS
UNITED STATES DISTRICT JUDGE

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