FONVILLE v. UNITED STATES OF AMERICA
Filing
16
OPINION. Signed by Judge Noel L. Hillman on 8/24/2011. (drw, )
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
RICARDO FONVILLE,
Petitioner,
v.
UNITED STATES OF AMERICA
Respondent.
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Civil Action No.
09-4043 (NLH)
Related Crim. No.
08-853 (NLH)
OPINION
Appearances:
RICARDO FONVILLE
#41578-050
McKean Federal Prison Camp
P.O. Box 8000
Bradford, PA 16701
Jason Richardson
Assistant U.S. Attorney
401 Market Street, 4th Floor
P.O. Box 2098
Camden, NJ 08101
HILLMAN, District Judge
Petitioner Ricardo Fonville files this motion under 28
U.S.C. § 2255 challenging his conviction and sentence on various
grounds.
However, the threshold issue is whether Petitioner may
file this motion at all.
This Court concludes that Petitioner
knowingly, intelligently, and voluntarily waived his right to
seek collateral review of his conviction and sentence under the
circumstances presented here.
Therefore, for the reasons set
forth below, the petition will be dismissed.
On November 20, 2008, Petitioner entered a plea of guilty to
a single-count information charging him with conspiring and
agreeing with Rory Henderson to possess with intent to distribute
five (5) kilograms or more of cocaine.
Fonville pled guilty
pursuant to a written plea agreement which stipulated to the
amount of drugs involved in the offense and contained a
comprehensive waiver of appeal and collateral attack.
Based
upon a stipulated quantity of 5 kilograms, the parties agreed if the so-called safety valve provision applied to Petitioner to an advisory guidelines offense level of 27 and further agreed
that if the defendant were sentenced to a term of incarceration
within that range he would not seek appellate or collateral
review.
This Court held a sentencing hearing on March 17, 2009.
At
the hearing, the Court first calculated the advisory sentencing
range and after consideration of the Pre-Sentence Report adopted
the Report’s conclusion, and the parties’ eventual stipulation,1
that a Level 27 was the appropriate final Total Offense Level.
March 17, 2009 Sentencing Hearing, p. 9 (Transcript).
Coupled
with a Criminal History Category of I, the Court found, at Step I
1
U.S.S.G. §§ 5C1.2 and 2D1.1(b)(11). Appropriately so, the
written plea agreement left the applicability of the Safety Valve
unresolved pending the completion of the pre-sentence
investigation. October 2, 2008 Plea Agreement, Schedule A, para.
4. The PSR found the provision applied, the government agreed,
and the Court applied the two-point reduction to the benefit of
the Petitioner. PSR, para. 37.
of the three-step sentencing process, an advisory sentencing
range of 70 to 87 months.
Id. at 10.
After considering the
factors set forth in 18 U.S.C. § 3553 at Step III of the
sentencing process,2 Fonville was sentenced by this Court to a
term of incarceration of seventy-two (72) months.
The Court
determined that such a sentence, which fell at the low end of the
advisory guideline range, furthered the statutory sentencing
goals.3
Despite the waiver of collateral review found in the plea
agreement, Fonville filed a 28 U.S.C. § 2255 petition before this
court on August 11, 2009.
The government filed a motion to
dismiss the petition on November 12, 2009.
As noted above, the written plea agreement in this matter
contained a comprehensive waiver of appeal and collateral attack.
More specifically, the agreement provided:
Ricardo Fonville knows that he has and, except as
noted below in this paragraph, voluntarily waives,
the right to file any appeal, any collateral
2
No departure motions were made by the parties and the
court found no independent reason to depart at Step II of the
sentencing process. March 17, 2009 Sentencing Hearing, p. 10
(Transcript).
3
The Court found that a sentence at the bottom of the
advisory range properly balanced the seriousness of the offense
and the need for deterrence against Petitioner’s positive
attributes of standing and support in the community, work history
and education, among other things. March 17, 2009 Sentencing
Hearing, pp. 23-24 (Transcript).
attack, or any other written or motion, including
but not limited to an appeal under 18 U.S.C. § 3742
or a motion under 28 U.S.C. § 2255, which
challenges the sentence imposed by the sentencing
court if that sentence falls within or below the
Guidelines range that results from the agreed total
Guidelines offense level of 27. This office [The
United States Atty.’s Office] will not file any
appeal, motion or writ which challenges the
sentence imposed by the sentencing court if that
sentence falls within or above the Guidelines range
that results from the agreed total Guidelines
offense level of 29. The parties reserve any right
that they may have under 18 U.S.C. § 3742 to appeal
to sentencing court’s determination of a criminal
history category. The provisions of this paragraph
are binding on the parties even if the court
employs a Guidelines analysis different from that
stipulated to herein. Furthermore, if the
sentencing court accepts a stipulation, both
parties waive the right to file an appeal,
collateral attack, writ, or motion claiming that
the sentencing court here in doing so.
October 2, 2008 Plea Agreement, Schedule A, para. 9 (emphasis
added).4
As set forth above, the Petitioner and, for that matter, the
government, agreed that so long as the Court sentenced defendant
to a term of incarceration anywhere within or below the
sentencing range of 70 to 87 months he would not file any appeal
4
The agreement reserved to the United States the right to
argue that the so-called “safety valve” provision did not apply
to petitioner and reserved to the Petitioner the right to argue
it did. Accordingly, the appellate waiver was drafted in such a
way as to bar an appeal or collateral attack if the respective
party prevailed on that issue, and conversely, preserved a right
of review if they did not. Here, the Court applied the safety
value to the benefit of the Petitioner, without objection from
the government, and sentenced him within the range favored by the
Petitioner, triggering his appellate waiver.
of collateral attack of his sentence.
occurred here.
That is precisely what
At the Rule 11 hearing, the court engaged in a
detailed colloquy with the defendant to ensure the defendant
understood the waiver provisions in the plea agreement.
First,
the government recited the terms of the written agreement and
highlighted the waiver provision.
Hearing, p. 11 (Transcript).
November 20, 2008 Rule 11
He was asked under oath if he had
read the plea agreement before signing it, had discussed it with
counsel, and whether he understood it.
Id. at p. 12.
answered all of those questions in the affirmative.
if he had any questions about the plea agreement.
“No.”
Id. at p. 12-13.
He
He was asked
He answered
In addition, the Court recited the terms
of the waiver and specifically and directly asked the Petitioner
whether he understood it.
did.
Id.
Id. at p. 20-22.
He stated that he
He repeated those assertions under additional
questioning by the prosecutor in open court.
Id. at p. 29.
In sum, the Petitioner acknowledged and affirmed at least
three separate times - by signing the plea agreement, after
questioning by the Court, and after questioning by the government
- that he waived certain appellate and collateral review rights
as part of his plea agreement.
There can be no question that
this waiver was entered into knowingly, intelligently, and
voluntarily.
There is also no question that the waiver applied
to the sentence Petitioner received since the defendant was
sentenced to a term of incarceration within the stipulated range.
Under such circumstances, absent a miscarriage of justice,5 such
waivers are enforceable.
United States v. Khattak, 273 F.3d
557, 558 (3d Cir. 2001).
For the reasons set forth above, the Court concludes that
Petitioner knowingly, intelligently, and voluntarily waived his
right to seek collateral review of his conviction and sentence
under the terms and conditions of his plea agreement and no
circumstances present here absolve him of his obligation to abide
by its terms.
5
Therefore, the petition will be dismissed and an
Even if there were no appellate waiver in this matter, the
Court would still deny the requested relief. The Court has
examined the record and considered all of Petitioner’s
contentions and would find them without merit. Petitioner’s
claim that the government manipulated the amount of drugs
discussed in order to entrap him or increase his sentence is
belied by his own unsolicited offer to purchase 50 to 100
kilograms of cocaine, far above the amount he stipulated to. See
United States v. Jones, 18 F.3d 1145, 1153 (4th Cir.
1994)(discussing pre-disposition to negate a claim of sentencing
entrapment). Petitioner acknowledged under oath that he offered
to purchase such amounts. November 20, 2008 Rule 11 Hearing, pp.
25-26 (Transcript). Petitioner’s claim of ineffective counsel is
similarly without merit. First, Petitioner acknowledged under
oath that he was satisfied with his counsel’s representation and
he offers now only vague and conclusory claims of
ineffectiveness. Id. at 4. Objectively, his counsel negotiated
a drug amount limited to the amount of money Petitioner brought
to the table rather than the larger amounts discussed, preserved
the safety value argument for appeal if it became necessary, and
successfully argued for a sentence at the low end of the advisory
range through a comprehensive and ultimately effective
presentation on sentencing mitigation. In light of the
overwhelming evidence of Petitioner’s guilt, the representation
was far from ineffective. Petitioner’s claim is frivolous and
may be dismissed without further inquiry. See United States v.
Dawson, 857 F.2d 923 (3rd Cir. 1988).
appropriate order entered.
Dated: August 24, 2011
Camden, New Jersey
/s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
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