Cassese v. United States of America

Filing 10

MEMORANDUM AND ORDER: For the reasons set forth above, Petitioner's motion to vacate, set aside, or correct his sentence, pursuant to 28 U.S.C. § 2255 is DENIED. The Court declines to issue a certificate of appealability pursuant to 28 U.S .C. § 2253 because the petitioner has failed to make a substantial showing of the denial of a constitutional right. The Clerk of the Court is directed to enter judgment denying the petition and closing this case. Ordered by Judge Sandra L. Townes on 6/6/2014. (fwd for judgment) (Fernandez, Erica)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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MICHAEL CASSESE,
MEMORANDUM AND ORDER
Petitioner,
-against-

l l-cv-810

<ltfLED

IN CLE~ OFFICE
U.S. DISTRICT COURT E.D.fll.Y.

UNITED STATES OF AMERICA,
Respondent.

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TOWNES, United States District Judge:

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JUN 6- 2014

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BROOKLYN OFFICE

Petitioner Michael Cassese, prose, an inmate at FCI Fairton, moves for a writ of habeas
corpus pursuant to 28 U.S.C. § 2255 on the grounds that he was denied effective assistance
because his attorney (I) failed to bring the government's alleged plea-breach to the Court's
attention at sentencing, (2) failed to file a motion to correct an alleged arithmetical error at
sentencing, and (3) failed to reduce some of the terms of the plea agreemeI)t to writing. For the
following reasons, the petition is DENIED.
BACKGROUND
. On November 5, 1991, Michael Cassese was sentenced by then-Eastern District Judge
Reena Raggi to 87 months imprisonment followed by a lifetime of supervised release. (USA v.
Martini, et al, 90-cr-494.) In 2006, he was arrested again, and charged with, inter alia, violating

the conditions of his supervised release and participating in a racketeering conspiracy.
In connection with the 2006 arrest, Cassese's attorney, Steve Zissou, negotiated a plea
agreement, the terms of which provided that Cassese would plead guilty to the racketeering
charge and the government would agree to dismiss the other counts. In the plea agreement, the
parties estimated that the total Sentencing Guidelines ("Guidelines") offense level was 27 and
Cassese fell into Criminal History Category III - corresponding to an advisory sentencing

guideline of87 to 108 months incarceration. (Plea Agreement ii 2.) It provided that if Cassese
pleaded guilty by September 28, 2007, the Government would move for a one level reduction
resulting in an adjusted offense level of 26 - corresponding to a 78 to 97 months advisory term
of imprisonment. It also provided for a possible one offense-level reduction in the event of
global disposition - that is, in the event that certain co-defendants also pleaded guilty. The
agreement provided that the calculations were only estimates and these estimates did not bind the
Court. (Id. at ii 3.) Although not included in the plea agreement, Cassese asserts that the
Government also agreed to recommend that his sentence on the racketeering conspiracy charge
should run concurrently with whatever sentence he received on the violation of supervised
release charge. He also contends that the Government agreed that, after his release, he would no
longer be on lifetime supervised release.
On September 7, 2007, Cassese pleaded guilty before then-Magistrate Judge Kiyo A.
Matsumoto to Count One of the Superseding Indictment- racketeering conspiracy in violation of
18 U.S.C. §§ 1961(1) and (5). (06-cr-800, Dkt. 288 ("Plea Tr.").) Magistrate Judge Matsumoto
confirmed on the record that Cassese understood each aspect of the plea agreement. Cassese
confirmed on the record that he understood that "despite whatever the Government and [his]
attorney may have estimated with respect to [his] offense level and the range of sentence that
[he] could face, that their estimate could be incorrect." (Id. at 17:21-25.) He also confirmed that
he understood that "after Judge Townes considers the sentencing guidelines she does have the
authority to impose a sentence that is more or less severe than that called for by the [Sentencing
G]uidelines." (Id. at 17:9-15.)
On May 15, 2009, at the sentencing hearing, the Court went through the Guidelines
calculations on the record and concluded that the total offense level was 28. (l l-cv-810, Dkt. 5-

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3 ("Sent. Tr.") at 12:1-25.) In light of the global disposition of the case, the Court granted the
parties' motion to downwardly depart from the advisory Guidelines range and sentenced Cassese
within a range two offense-levels lower than 28 - at a level of 26, which corresponds to a
sentence of78 to 97 months. (Id. at 5:13-16.) The Court sentenced Cassese in the middle of that
lower range -to 90 months followed by three years supervised release. (Id. at 12:1-25.)
After sentencing on the underlying indictment, the Defendant pleaded guilty on the
record to violating the terms of his pre-existing supervised release. (Id. at 16:25-17: I.) The
Government recommended that the sentence for the violation of supervised release run
concurrently to the sentence imposed on the racketeering count. (Id. at 17:4-9.) The Court
declined to follow the Government's recommendation. Instead, the Court sentenced Cassese to
12 months imprisonment to run consecutively to the 90 month sentence imposed on the
racketeering count, followed by a lifetime term of supervised release. (Id. at 17: 13-19:4.)
Casesse's attorney objected to the sentence. The Court explained, "you said ... that the
government and the defense agreed the sentence should run concurrently with the sentence
imposed on the racketeering conspiracy .... The government did say they recommend a
concurrent term of imprisonment," (Id. at 20:8-11, 24-25), and while the Court "accepted the
recommendation as coming from the government and the defendant[, the Court] simply did not
agree with it," (Tr. 21:8-10).
Cassese appealed. On July 14, 2010, the Second Circuit Court of Appeals dismissed the
appeal based on the waiver of appellate rights contained in the plea agreement. By a petition
dated February 10, 2011, Cassese commenced the instant petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2255 seeking a reduction in his sentence to a term between 70 and 87

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months and an order that his sentence imposed for his participation in a racketeering conspiracy
be served concurrently with the sentence imposed for violating supervised release.

DISCUSSION
Section 2255(a) of Title 28 of the United States Code provides:
[aJ prisoner in custody under sentence of a court established by Act of Congress claiming
the right to be released upon ground 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 maximum authorized by
law, or is otherwise subject to collateral attack, may move the court which imposed the
sentence to vacate, set aside or correct the sentence.
Relief under this statute is available only "for constitutional error, a lack of jurisdiction in the
sentencing court, or an error of law or fact that constitutes 'a fundamental defect which
inherently results in complete miscarriage of justice."' United States v. Bokun, 73 F.3d 8, 12 (2d
Cir. 1995) (citations omitted).
Section 2255 requires a district court to hold a hearing "[u]nless the motion and the files
and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. §
2255; Pham v. United States, 317 F.3d 178, 185 (2d Cir. 2003) (§ 2255 does not permit summary
dismissals of motions that present facially valid claims). However, "[t]he language of the statute
does not strip the district court[] of all discretion to exercise [its] common sense." Machibroda

v. United States, 368 U.S. 487, 495 (1962). Where the petitioner's allegations are "vague,
conclusory, or palpably incredible" a district court may investigate "allegations of facts outside
the record ... without requiring the personal presence of the prisoner." Id. It is "within the
district court's discretion to choose a middle road" between a full-fledged hearing and summary
dismissal to "avoid[ ] the delay, the needless expenditure of judicial resources, the burden on
trial counsel and the government, and ... the encouragement of other prisoners to make similar

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baseless claims that would have resulted from a full testimonial hearing." Chang v. United
States, 250 F.3d 79, 86 (2d Cir. 2001).
A. Knowing and Voluntary Waiver

As a preliminary matter, it is "well-settled that a defendant's knowing and voluntary
waiver of his right to appeal a sentence within an agreed upon guideline range is enforceable,"
United States v. Djelevic, 161 F.3d 104, 106 (2d Cir. 1998), as is a knowing and voluntary

waiver of the right to litigate pursuant to§ 2255, Frederick v. Warden, Lewisburg Corr. Facility,
308 F.3d 192, 195 (2d Cir. 2002). Cassese's plea agreement contained just such a provision,
which provided that Cassese "agrees not to file an appeal or otherwise challenge by petition
pursuant to 28 U.S.C. § 2255 ... [the] sentence in the event that the Court imposes a term of
imprisonment of 108 months or below." (Petition at 4.) He confirmed on the record that he
understood all of the terms of the plea agreement, including the waiver provision, and signed the
agreement voluntarily. (Plea Tr. at 12:7-16, 13:16-14:3.) He was not sentenced to more than
108 months imprisonment. Thus, he has waived his right to challenge his sentence. See e.g.,
Boatswain v. United States, 10-CV-711, 2010 WL 3718854, at *2 (E.D.N.Y. Sept. 14, 2010).
B. Alleged Ineffective Assistance of Counsel

In any event, Cassese's petition challenging his sentence - framed as a challenge to his
counsel's performance - is without merit. Cassese claims that his counsel was constitutionally
ineffective for three reasons. Under the two-prong standard governing ineffective assistance
claims, Cassese must show, first, "that counsel's performance was deficient" and second, "that
the deficient performance prejudiced the defense." Strickland v. Washington, 466 U.S. 668, 687
(1984). For the following reasons, he has not met that standard.
a. Counsel's Alleged Failure To Bring The Government's Alleged Plea-Breach To
The Court's Attention At Sentencing

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Cassese claims that he is entitled to relief because his counsel was constitutionally
ineffective when he neglected to bring to the Court's attention the fact that the plea agreement
Cassese signed had mistakenly contemplated "an adjusted base offense level of25 with a
criminal history category of III which provided a sentencing range of 70 to 87 months."
(Petition at 5.) Cassese carmot meet the Strickland standard because his counsel's performance
was not deficient.
First, his counsel was not, as he contends, constitutionally deficient for failing to raise
this issue with the Court, because his counsel did raise this issue with the Court. At the
sentencing hearing, the following colloquy took place:
The Court: ... [The] total offense level is 28. Any objections from anyone?
Mr. Zissou: We do not, Judge.
The Court: I also have a motion . . . for a sentence outside of the advisory
guideline range pursuant to a plea agreement between the defendant and the
government.... I'm going to grant that motion ... [s]o that the total offense level
I'm considering to sentence this defendant is 26 with a criminal history category
of three and the imprisonment range, 78 to 97 month. Anything from either
party?
Mr. Zissou: Judge, I'm perfectly in agreement with that. I did want to note in my
letter I had referenced a 70 to 87-month range. That's the range that was in the
plea agreement but subsequent to that, we discovered there was an error in
computation, base offense level should have been one point higher. I put that in
my letter, certainly in the plea agreement Mr. Cassese signed but we agree the low
end of the guideline range is 78 months.
The Court: Wasn't it explained to your client if you're wrong, the Court was not
bound by that?
Mr. Zissou: Absolutely. I did put in my letter so your Honor would know there
was that at the beginning. We agree with your computation.
(Sentencing Tr. At 4:22-6:5.)

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Second, even if his counsel had failed to raise the issue of alleged miscalculations in the
plea agreement, Cassese would not be entitled to relief because his counsel was under no
obligation to raise inconsequential concerns about miscalculations in the plea agreement. See
Elder v. United States, 08CV282A, 2010 WL 3636186, at *4 (W.D.N.Y. Sept. 15, 2010) (no

ineffective assistance where attorney failed to make meritless argument regarding calculation of
advisory Guidelines range at sentencing). It is well settled that computation errors in plea
agreements are not binding on the Court, US v. Johnson, 567 F.3d 40, 51 (2d Cir. 2009), and do
not provide a basis to withdraw a plea, United States v. Rosen, 409 F.3d 535 (2d Cir. 2005).
In Rosen, the defendant, like Cassese, signed a plea agreement specifying a lower
Guidelines range than that ultimately calculated by the Court. The agreement that the defendant
signed, like the agreement Cassese signed, provided that neither the Probation Department nor
the Court would be bound by the Guidelines estimate and warned that the sentence to be imposed
upon the defendant would be determined solely by the Court. The Second Circuit explained that
"[a]n agreement that has made ... express provisions with respect to the possibility of a mistaken
prediction as to sentencing calculations is not a proper candidate for rescission on the ground of
mutual mistake when that possibility has come to fruition." Id. at 548-49. Here, too, the plea
agreement clearly warned Cassese that the Court would make its own independent Guidelines
calculations and that any discrepancies between the Court's and parties' calculations would not
jeopardize the voluntary nature of the plea and would not provide a basis to withdraw the plea.
Thus, even if his counsel had failed to raise the discrepancy with the Court, his conduct would
not have been deficient because any motion to withdraw his plea on this basis would have been
fruitless. The Court thus rejects the first argument from petitioner's motion for relief under§
2255.

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b. Counsel's Alleged Failure to File a Motion to Correct Sentence Following an
Alleged Arithmetical Error by the Court.
Cassese alleges that his counsel was constitutionally deficient for failing to raise a
purported arithmetical error made by the Court in a timely post-sentencing motion. Specifically,
he points to the following:
The Court: ... I'll put in on the record again~ the total offense level under th[e]
advisory guidelines in 28, criminal history category is 3. The imprisonment
range, 97 to 121 months, supervised release range, no more than three years ...
(Sentencing Tr. at 9:21-25.) He contends that this calculation failed to include the two-level
reduction for global disposition. However, as the Court had explained earlier in the proceedings,
the total offense category was indeed 28. However, the Court agreed to downwardly depart by
two levels in light of the global disposition of the case. Accordingly, the Court sentenced
Cassese within the range advised for offense category 26.
The Court: ... [The] total offense level is 28 .... I also have a motion ... for a
sentence outside of the advisory guideline range.... I'm going to grant that
motion .. . [sJo that the total offense level I'm considering to sentence this
defendant is 26 with a criminal history category of three and the imprisonment
range, 78 to 97 months.
(Sentencing Tr. At 4:22-6:5.) The Court then sentenced Cassese to 90 months, squarely within
the range for offense category 26. 1 Thus, there was no arithmetical error for Cassese's attorney
to raise with the Court, and he was not constitutionally deficient for failing to make a postsentencing motion.

c. Counsel's Alleged Failure to Reduce to Writing the Off-the-Record Agreement
Concerning his Violation of Supervised Release
Cassese's final ground for§ 2255 relief is that his attorney failed to reduce to writing an
agreement concerning the charge of violating the conditions of supervised release. That charge
1

Indeed, the Court observed that this sentence was "in the middle ... ofthe reduced
guideline range." (Sentencing Tr. at 15:15-18.)

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arose because at the time Cassese participated in the racketeering conspiracy to which he had
pleaded guilty, he was serving a lifetime term of supervised release imposed by Judge Raggi in
1991. (USA v. Martini, et al., 90-cr-494.) He contends that:
During the September 7, 2007, guilty plea colloquy the subject of the supervised
release violation came up and the court went off the record. During the off the
record discussion it was agreed to by all parties that the supervised release
violation would be ordered to be served concurrently and the supervised release
would be terminated.
(Petition at 8.)2 At the sentencing hearing, before Cassese pleaded guilty to violating the terms
of his supervised release, his attorney stated: "We all agree the guideline range is 6 to 12 months.
I'm requesting a concurrent sentence." (Sentencing Tr. at 14:22-24.) The Court explained, "I'm
not going to give him a concurrent sentence. It will be consecutive." (Id. at 14:25-15:1.)
Cassese nevertheless pleaded guilty to violating the terms of his supervised release. (Id. at
16:25-17:1.) Before sentencing on the charge, Cassese's attorney reiterated that the Government
agreed to recommend a concurrent sentence, and the Government confirmed that "we consent to
a concurrent sentence of imprisonment on the violation." (Id. at 15:18-25, 17:4-9.) The Court
declined to follow the parties' recommendation and instead imposed a 12 month term of
imprisonment, to be served consecutively to the 90 month sentence imposed on the racketeering
count, followed by a lifetime term of supervised release.
It is of no consequence that Cassese's attorney did not reduce the parties' agreement
concerning supervised release to writing because there is no contention that the Government
breached the agreement. Consistent with the parties' agreement, the Government recommended
a concurrent sentence on the violation of supervised release. The Court declined to follow that
2

Based on the record before the Court, the Court does not credit Cassese's contention
that the Government agreed to recommend that - as part of the sentence for violating his preexisting lifetime supervised release - the Court should terminate the lifetime supervised release
term. In any event, he no longer requests to be relieved of the sentence of lifetime supervised
release.
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recommendation. The Court is required to make its own determination with respect to
sentencing and commits no error when it reasonably declines to follow the terms of parties' plea
agreement. United States v. Simmons, 382 F. App'x 63, 64 (2d Cir. 2010) (summary order).
Here, the Court did just that, and thus Cassese's counsel was in no way deficient.
CONCLUSION

For the reasons set forth above, Petitioner's motion to vacate, set aside, or correct his
sentence, pursuant to 28 U.S.C. § 2255 is DENIED. The Court declines to issue a certificate of
appealability pursuant to 28 U.S.C. § 2253 because the petitioner has failed to make a substantial
showing of the denial of a constitutional right. The Clerk of the Court is directed to enter
judgment denying the petition and closing this case.

SO ORDERED.

s/Sandra L. Townes
.i1ANDRA L. TOWNES
United States District Judge

Dated:~ 0 York2014
,
fOOklYll:New

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