Ouvina v. U.S.A.

Filing 11

MEMORANDUM OPINION as to Jorge Ouvina, denying the defendant'smotions to prematurely terminate his term of probation, to vacate thepreviously entered order of restitution and to withdraw his plea of guilty. Theportion of defendant's petition pursuant to 28 USC 2255 alleging ineffectiveassistance of counsel is held in abeyance pending a response from JoelWalter, Esq. Ordered by Judge I. Leo Glasser on 1/23/2013. (Kessler,Stanley) (Marziliano, August)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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UNITED STATES OF AMERICA,
Plaintiff,

MEMORANDUM AND ORDER
10 CR 970 (ILG)

-againstJORGE OUVINA,
Defendant.

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GLASSER, United States District Judge:
The defendant moved pursuant to 28 U.S.C. § 2255 alleging ineffective assistance
of counsel as the ground upon which his petition is based. Dkt. No. 68 at page 4. At p.
13 ofthat petition, however, he asks the Court to grant him leave to withdraw his
previously entered plea of guilty or in the alternative to "amend the judgment to delete a
reference to an obligation to repay restitution." Prior to filing this petition pursuant to §
2255, the defendant filed a motion pursuant to 18 U.S.C. §§ 3564(c). 3663(g) and Fed.
R. Cr. P. 32.1(C)(1) requesting an Order that would terminate prematurely a four year
term of probation imposed on March 2, 2012, and amend the judgment of conviction by
deleting his obligation to make restitution that it imposes.
Background
The defendant was indicted on December 9, 2010, charged with embezzling and
converting to his own use monies owed to the welfare and pension benefit plans owed to
and operated on behalf of the Laborers' International Union of North America, Locals
66, 78 and 79 in violation of 18 U.S.C. § 664.
B. Shatsky, Esq., entered a notice of appearance as retained counsel and
represented him when he was arraigned on the complaint on December 3, 2010, Dkt.

No. 4, and entered his Notice of Appearance, Dkt. No. 6. Mr. Shatsky also represented
him when subsequently arraigned on the indictment on December 17, 2010. Dkt. No. 11.
Thereafter, although no application to be relieved is reflected on the docket sheet,
Robert F. Gold, Esq. was retained and entered a Notice of Appearance on January 18,
2011. A flurry of pretrial activity regarding discovery and bail matters led to a motion by
Mr. Gold to be relieved as counsel on March 21'', Dkt. No. 31, and granted on March 24,
2011. On that day, the Court appointed Richard Kwasnick to represent the defendant
pursuant to the Criminal Justice Act ("CJA"), 18 U.S.C. § 3006A, Dkt. No. 32. Discovery
proceeded, plea negotiations began and by letter dated August 30, 2011, Mr. Kwasnick
requested to be relieved for reasons stated. Dkt. No. 43· His request was granted on
September 1, 2011 and new counsel, Joel S. Walter, was appointed, again pursuant to the
CJA, Dkt. No. 44· Mr. Ouvina was advised that he has no constitutional right to have
counsel of his choice appointed and the Court would not look favorably upon a request
to have yet another attorney appointed to represent him. On October 4, 2011, Ouvina
pleaded guilty to the indictment.
On March 2, 2012, Ouvina was sentenced to a four year term of probation which
was a not insignificant departure from the 12-18 months the Guidelines advised, but
which was thought to be sufficient and reasonable given a careful consideration of the
factors of 18 U.S.C. § 3553(a).
Discussion
A.

His motion for early termination of probation pursuant to§ 3564(c) is

denied. His citation to § 3663(g) is moot , that section having been repealed in 1996. §
3564(C) authorized the early termination of probation in the case of a felony after one
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year of that term has expired if the Court is satisfied that termination is warranted by
the defendant's conduct and the interests of justice after considering the factors of§
3553(a). The reasons advanced by the defendant in support of his application is that he
has complied with the conditions of probation during the first

10

months of its term and

that he alleges it (probation) to being an obstacle to obtaining the positions he believes
to be qualified for. Early termination is not warranted because the defendant has
complied with the conditions of probation. That is precisely what he was required to do
-in lieu of imprisonment. Early termination may be favorably considered when, for
example, changed circumstances make the conditions of probation too harsh. Neither
the defendant's conduct nor the interests of justice justify early termination and this
motion is denied.
B.

His motion to vacate the order of restitution based on a settlement

agreement reached with the victim is denied. The precise issue was raised, considered
and determined to be without merit in United States v. Hamburger, 414 F. Supp.2d 219
(E.D.N.Y. 2006). In addition, the Court of Appeals in United States v. Kaminski, 339
F.3d 84 (2d Cir. 2003), decided that the district court did not have subject matter
jurisdiction to entertain a motion pursuant to § 2255 to vacate a non-custodial order of
restitution.
C.

The motion to withdraw, post-sentence, his plea of guilty is denied. Rule

n(e) Fed R. Cr. P. provides, in relevant part, that a defendant may not withdraw a plea
of guilty after the court has imposed sentence.
D.

His motion alleging ineffective assistance of counsel is properly brought

pursuant to§ 2255. Upon receipt ofthis motion, the Court extended an invitation to Mr.
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Walter to respond on or before February 18, 2013, in person, by affidavit or brief to the
allegations against him as required by Sparman v. Edwards, 154 F. 3d 51 (2d Cir. 1998).
A determination of that prong of the motion will, therefore, await Mr. Walter's response.
Conclusion
The motions to prematurely terminate the term of probation, to vacate the
previously entered order of restitution and to withdraw his plea of guilty are denied. His
motion for appropriate relief based upon his allegation of ineffective assistance of
counsel is held in abeyance pending a response from Mr. Walter.
SO ORDERED.
Dated:

Brooklyn, New York
January 23rd, 2013

;d

!~/

I. Leo Glasser

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