Ramzan v. USA
Filing
12
MEMORANDUM & ORDER: Ramzan's petition for a writ of habeas corpus is denied without the need for a hearing. As Ramzan has not made a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue. See 28 U.S.C. § 2253. Pursuant to 28 U.S.C. § 1915(a) (3) I it is hereby certified that any appeal from this order would not be taken in good faith. See Coppedge v. United States 369 U.S. 438, 444-45 (1962). (Signed by Judge Naomi Reice Buchwald on 8/6/2012) Copies Mailed By Chambers. (ft) Modified on 8/6/2012 (ft).
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
--------------------------------X
IRSHAD RAMZAN,
MEMORANDUM &
ORDER
Petitioner,
- against -
11 Civ. 1191 (NRB)
06 Cr. 456 (NRB)
UNITED STATES OF AMERICA,
Respondent.
--------------------------------X
NAOMI REICE BUCHWALD
UNITED STATES DISTRICT JUDGE
Introduction
Petitioner
Irshad
Ramzan,
currently
an
inmate
at
the
Moshannon Valley Correctional Center, has filed a petition for a
writ
of
habeas
corpus
pursuant
to
28
U.S.C.
§
2255.
Ramzan
challenges a sentence entered by this Court on June 1, 2010,
following his guilty pleas to charges of conspiracy to commit
mail and bank fraud in violation of 18 U.S.C. § 1349. In his
petition, Ramzan asserts myriad claims, most notably that he was
deprived of his constitutional right to effective assistance of
counsel in the negotiation and execution of his plea agreements.
For the reasons stated below, Ramzan’s petition is denied.
1
Background1
The history of this case is unusual. By Indictment of May
31,
2006,
Ramzan
and
two
co-defendants
were
charged
with
conspiracy to commit mail and bank fraud in violation of 18
U.S.C. § 1349. (Resp. Ex. A.) The Indictment charged the three
individuals
with
participation
in
a
conspiracy
termed
the
“Bailout Scheme,” in which the defendants conspired to defraud
mortgage lenders by arranging for “straw purchasers” to receive
loans from the lenders under false pretenses. (Id. ¶ 6.) Ramzan
pleaded guilty to the Indictment on October 30, 2007, pursuant
to a plea agreement (the “First Plea Agreement”). (Resp. Ex. B.)
The stipulated guidelines range under the First Plea Agreement
was 87 to 108 months. (Id. at 10:11-14.)
After
entering
into
the
First
Plea
Agreement,
Ramzan
attempted to provide substantial assistance to the Government,
but this effort ultimately proved unfruitful. (Resp. Ex. E at
2:15-3:2.) Contemporaneous to Ramzan’s efforts to cooperate, the
Government was investigating other criminal activity in which
Ramzan was involved. (Id. at 3:3-5.) As a result of information
learned
through
this
investigation,
the
Government
filed
a
Superseding Information against Ramzan on August 5, 2009. (Resp.
1
The facts set forth in this section are derived from Ramzan’s Memorandum of
Law in Support of Motion to Vacate, Set Aside, and, or Correct Sentence
Pursuant to 28 U.S.C. § 2255 by a Person in Federal Custody (“Pet. Mem.”),
filed February 14, 2011, and the Answer of the United States of America in
Response to Motion Pursuant to 28 U.S.C. § 2255, filed April 15, 2011, and
the exhibits annexed thereto (“Resp. Ex.”).
2
Ex. C.) The Superseding Information contained a new charge of
conspiracy
separate
This
to
from
new
Scheme,”
commit
that
fraud
underlying
conduct,
involved
bank
referred
the
to
stealing
in
original
as
funds
connection
the
in
with
conduct
Indictment.
“Stolen
(Id.)
Payoff
Money
real
estate
residential
transactions that should have been distributed to the lender
holding the seller’s mortgage. (Id. ¶¶ 4-5.)
Ramzan pleaded guilty to the Superseding Information on the
same day it was filed, pursuant to a second plea agreement that
expressly
superseded
the
first
agreement
(the
“Second
Plea
Agreement”). (Resp. Ex. E at 3:13-15.) Despite the inclusion of
an additional charge in relation to the Stolen Payoff Money
Scheme,
the
Second
Plea
Agreement
contained
a
stipulated
guidelines range identical to that in the First Plea Agreement –
87 to 108 months. (Resp. Ex. D. at 5.) To reflect Ramzan’s
efforts
to
cooperate,
the
Second
Plea
Agreement,
unlike
the
First Plea Agreement, granted Ramzan the opportunity to argue
for
a
(Resp.
sentence
Ex.
E
outside
at
of
2:20-3:8.)
the
The
stipulated
Second
guidelines
Plea
range.
Agreement
also
contained a provision under which Ramzan expressly waived his
right to file a direct appeal or litigate under 28 U.S.C. §§
3
2255 or 2241 if his sentence was within or below the stipulated
range.2 (Resp. Ex. D at 6.)
Several aspects of the calculation of Ramzan’s guidelines
range
under
the
Second
Plea
Agreement
are
relevant
to
the
instant appeal. In entering the plea, the parties agreed that
the
criminal
Superseding
activity
charged
in
the
Information
would
form
one
Indictment
group
and
for
in
the
sentencing
purposes, pursuant to U.S.S.G. § 3D1.2. (Id. at 3.) Ramzan also
agreed to accept: (1) an eighteen-level sentencing enhancement
pursuant to U.S.S.G. § 2B1.1(b)(1)(J) for having caused between
$2,500,000 and $7,000,000 of loss; (2) a two-level sentencing
enhancement pursuant to U.S.S.G. § 2B1.1(b)(14)(A) (currently
codified at U.S.S.G. § 2B1.1(b)(15)(A)) for having derived more
than $1,000,000 in gross receipts from one or more financial
institutions as a result of the offense; and (3) a four-level
sentencing
enhancement
pursuant
to
U.S.S.G.
§
3B1.1(a)
for
having been an organizer or leader of a criminal activity that
involved five or more participants or was otherwise extensive.
(Id. at 4.)
Following
Ramzan’s
second
plea,
but
prior
to
his
sentencing, Ramzan replaced the counsel who had negotiated both
plea agreements, Leonard Ressler, Esq., with two new attorneys.
Also in the time prior to his sentencing, Ramzan was asked by
2
The First Plea Agreement contained an identical waiver. (Resp. Ex. B at
11:15-18.)
4
the Probation Office to complete a questionnaire regarding his
financial
status.
Ramzan,
however,
failed
to
provide
this
information despite repeated requests. (Resp. Ex. F at 26:930:2.)
Finally,
as
discussed
at
length
during
Ramzan’s
sentencing, there is evidence that following his initial plea,
Ramzan engaged in further criminal behavior similar to that to
which
he
had
apparently
pleaded
offered
to
guilty.
help
(Id.
two
at
30:3-34:23.)
individuals
Ramzan
restructure
their
mortgages, charged them for this assistance, and then failed to
provide any services in exchange for his fees. (Id.)
Ramzan
was
sentenced
on
June
1,
2010.
Because
of
his
failure to provide the financial information requested by the
Probation
Office,
as
well
as
his
apparent
ongoing
criminal
activity, the Court determined that Ramzan was not eligible for
a three-point reduction in his offense level for acceptance of
responsibility.
(Resp.
Ex.
F
at
38:21-39:7,
39:25-40:4.)
The
Court also determined that Ramzan’s criminal history level had
been miscalculated under the Second Plea Agreement, concluding
that the appropriate Criminal History Category was III rather
than II.3 Based on these adjustments, the Court concluded that
3
As found in the Presentence Report, the stipulated guidelines range had not
properly accounted for Ramzan’s 2003 state court conviction and sentence for
grand larceny.
(Resp. Ex. F at 13:16-15:11, 20:7-22:7, 24:7-17, 47:14-21.)
At sentencing, the Court rejected Ramzan’s argument that his prior conviction
was part of the same course of conduct as the schemes for which he was then
being sentenced, and the Court noted that it is particularly significant that
Ramzan committed the crimes in question while subject to a conditional
discharge pursuant to his grand larceny sentence. (Resp. Ex. F at 25:17-24.)
5
the applicable guidelines range was 135 to 168 months. (Id. at
39:16-40:4.)
Notwithstanding this elevated guidelines range, the Court
sentenced Ramzan to eighty-four months of imprisonment and four
years
of
supervised
release.4
(Resp.
Ex.
F
at
55:12-56:18.)
Ramzan was thus sentenced to three months below the low end of
the stipulated guidelines range.
On February 14, 2011, Ramzan filed the instant petition for
a writ of habeas corpus pursuant to 28 U.S.C. § 2255. In light
of Ramzan’s claims concerning the effectiveness of Mr. Ressler his counsel at the time of the two plea agreements - the Court
entered an Order on July 17, 2012, requiring that Ressler submit
an affidavit addressing the relevant aspects of Ramzan’s claims.5
(Docket No. 9.)
Ressler filed the requested affidavit on July
26, 2012. (Aff. of Leonard I. Ressler (“Ressler Aff.”), filed
July 26, 2012, Docket No. 11.)
Discussion
A prisoner in federal custody may file a motion for a writ
of habeas corpus on the ground that his sentence was imposed in
violation of the Constitution or federal laws, was issued by a
4
The Court also ordered Ramzan to forfeit several properties as agreed to in
the Second Plea Agreement and to pay restitution as set out in the
Government’s third supplemental sentencing memorandum. (Resp. Ex. F at 55:1856:7.)
5
Specifically, the Court required that Ressler submit an affidavit addressing
whether he “explained the terms and nature of the plea agreements to
petitioner.” (Docket No. 9.)
6
court
that
did
not
have
jurisdiction,
was
in
excess
of
the
lawful maximum, “or is otherwise subject to collateral attack.”
28 U.S.C. § 2255(a). This form of collateral attack is therefore
generally available “only for a 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 a complete miscarriage of justice.’” Cuoco v. United States,
208 F.3d 27, 30 (2d Cir. 2000) (quoting United States v. Bokun,
73 F.3d 8, 12 (2d Cir. 1995)).
I.
Waiver of Right to File Habeas Petition
The
Government
notes
that
Ramzan
explicitly
waived
his
right to file a petition under 28 U.S.C. § 2255 in the Second
Plea Agreement. The Government thus contends that the majority
of the claims advanced by Ramzan in his petition are barred as a
threshold matter.
A.
Preclusive Effect
It
is
“[k]nowing
well
and
established
voluntary
appellate
agreements must be enforced.”
404,
412
“[I]f
(2d
they
Cir.
are
2004)
not,
that,
a
waivers
general
included
matter,
in
plea
United States v. Granik, 386 F.3d
(internal
the
as
covenant
quotation
not
to
marks
appeal
omitted).
becomes
meaningless and would cease to have value as a bargaining chip
in
the
hands
of
defendants.”
Id.
(internal
quotation
marks
omitted); see also United States v. Morgan, 406 F.3d 135, 137
7
(2d Cir. 2005) (noting that “[i]f either party were able to
secure its benefits while making its obligations contingent, the
utility of plea agreements would disappear”); United States v.
Djelevic,
161
F.3d
104,
106-07
(2d
Cir.
1998)
(collecting
cases).6
Notwithstanding this broad principle, a waiver of appellate
or collateral attack rights does not foreclose an attack on the
validity
of
the
process
by
which
the
waiver
was
procured.
Frederick v. Warden, Lewisburg Corr. Facility, 308 F.3d 192,
195-96 (2d Cir. 2002). The Sixth Amendment right to effective
assistance
of
counsel
applies
at
all
“critical”
stages
of
criminal proceedings, including plea negotiations. See, e.g.,
Lafler v. Cooper, 132 S. Ct. 1376, 1385 (2012); Missouri v.
Frye, 132 S. Ct. 1399, 1407 (2012) (“The reality is that . . .
defense
counsel
have
responsibilities
in
the
plea
bargain
process . . . that must be met to render the adequate assistance
of counsel . . . .”). Thus, “a waiver of collateral attack
rights in a plea agreement is unenforceable where the petitioner
claims ineffective assistance of counsel in connection with the
plea agreement itself.” Muniz v. United States, 360 F. Supp. 2d
574, 577 (S.D.N.Y. 2005).
6
While some of these sources refer only to appellate rights, we adopt the
position taken in Rosa v. United States, 170 F. Supp. 2d 388, 397 (S.D.N.Y.
2001), that “there is no ‘principled means of distinguishing [a Section 2255]
waiver from the waiver of a right to appeal.’” (quoting United States v.
Wilkes, 20 F.3d 651, 652 (5th Cir. 1994)).
8
B.
Application
The record reveals that Ramzan’s waiver of appellate and
collateral attack rights was knowing and voluntary. The Second
Plea Agreement specifically stated that “the defendant will not
file
a
and/or
direct
2241,
appeal,
any
nor
sentence
litigate
within
under
or
28
below
U.S.C.
the
§§
2255
Stipulated
Guidelines Range of 87 to 108 months set forth above.” (Resp.
Ex. D at 6.) Ramzan’s allocution makes clear that he understood
that he had waived his right to challenge his sentence as a
result of this provision:
The Court: Do you also understand that you have agreed
that a sentence between 87 and 108 months is, as a
matter of law, a reasonable sentence, and that if that
is the sentence that you get, or if you get a sentence
lower than that, that you cannot appeal your sentence
or otherwise challenge your sentence?
The Defendant: Yes.
(Resp. Ex. E at 14:16-22.)
Ramzan further allocuted that he had sufficient time to
discuss his plea with defense counsel and was satisfied with the
advice and counsel given by his attorney. (Id. at 6:15-20.) This
Court advised Ramzan of the charges and penalties he faced, and
Ramzan repeatedly stated that he understood the consequences of
his plea agreement and wished to plead guilty in accordance with
its
terms.7
(Id.
at
7:17-21:8.)
7
The
Court
found
that
Ramzan
Ramzan had made similar statements in the context of the First
Agreement. (Resp. Ex. B at 3:3-9, 9:5-10:3, 10:11-12:13, 19:12-20:3.)
9
Plea
understood
the
consequences
nature
of
his
of
the
plea,
charges
and
against
that
the
him
plea
and
was
the
made
voluntarily, knowingly, and with an adequate basis in fact. (Id.
at 21:12-16.)
Consequently, when the Court sentenced Ramzan to a prison
term of eighty-four months - below the stipulated guidelines
range
-
thereby
Ramzan
bound
obtained
by
the
the
benefit
waiver
of
contained
his
in
bargain
the
and
Second
is
Plea
Agreement. Despite the general prohibition thereby imposed on
Ramzan
against
challenging
his
sentence,
as
discussed
above,
Ramzan may still attack the effectiveness of his counsel during
the plea negotiation process. The Court will therefore focus its
analysis
on
Ramzan’s
claims
of
ineffective
assistance
of
counsel. In so doing, however, we remain mindful that “[a] claim
of ineffective assistance of counsel is not a vehicle for a
criminal defendant to attempt an end-run around a knowing and
voluntary waiver of his right to appeal his sentence.” SantiagoDiaz v. United States, 299 F. Supp. 2d 293, 299 (S.D.N.Y. 2004)
(citing Djelevic, 161 F.3d at 107).
II.
Effectiveness of Counsel in Entering Plea Agreements
Claims of ineffective assistance of counsel in relation to
a
plea
agreement
Strickland
v.
Lockhart,
474
are
governed
Washington,
U.S.
52,
466
58
by
the
U.S.
(1985).
10
668
standard
(1984).
Under
this
set
See
forth
in
Hill
v.
framework,
a
claimant must establish: (1) that the counsel’s representation
fell below “an objective standard of reasonableness,” and (2)
that the allegedly ineffective assistance resulted in prejudice.
Strickland, 466 U.S. at 687-88, 691-92.
To
satisfy
overcome
“a
the
strong
“performance”
presumption
that
prong,
a
counsel’s
claimant
must
conduct
falls
within the wide range of reasonable professional assistance.”
Raysor
v.
United
States,
647
F.3d
491,
495
(2d
Cir.
2011)
(quoting Strickland, 466 U.S. at 689). “Where . . . a defendant
is represented by counsel during the plea process and enters his
plea upon the advice of counsel, the voluntariness of the plea
depends on whether counsel’s advice was within the range of
competence demanded of attorneys in criminal cases.” Hill, 474
U.S. at 56 (internal quotation marks omitted).
To satisfy the prejudice prong, the defendant must prove “a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.”
Raysor, 647 F.3d at 495 (quoting Strickland, 466 U.S. at 694).
In the context of a guilty plea, “the defendant must prove that
‘there
is
a
reasonable
probability
that,
but
for
counsel’s
errors, he would not have pleaded guilty and would have insisted
on going to trial.’” United States v. Gunn, 419 F. App’x 106,
109 (2d Cir. 2011) (quoting Hill, 474 U.S. at 59). A court may
reject a claim of ineffective assistance of counsel for failure
11
to
satisfy
either
prong
of
this
framework,
without
reaching
discussion of the other. Strickland, 466 U.S. at 697.
In considering an ineffective assistance of counsel claim
made by a petitioner in federal custody, the district court has
discretion
to
determine
whether
an
evidentiary
hearing
is
required. See 28 U.S.C. § 2255(b) (providing that a hearing must
be conducted “[u]nless the motion and the files and records of
the case conclusively show that the prisoner is entitled to no
relief”). Although summary dismissal of Section 2255 claims is
discouraged
when
those
claims
implicate
“off-the-record
interactions with . . . trial counsel,” in such circumstances,
district courts are often permitted to take a “middle road” and
resolve the motion by supplementing the record with letters,
documentary evidence, or affidavits. See Chang v. United States,
250
F.3d
“avoids
79,
the
85-86
delay,
(2d
Cir.
the
2001).
needless
This
intermediate
expenditure
of
step
judicial
resources, and the burden on trial counsel and the government”
that may be associated with a full-fledged evidentiary hearing.
Puglisi
v.
United
States,
586
F.3d
209,
215
(2d
Cir.
2009)
(internal alterations and quotation marks omitted). Thus, the
middle
road
is
particularly
encouraged
claims
that
can
be,
often,
and
are
“in
made
in
cases
any
involving
case.”
Id.
(internal alteration and quotation marks omitted). Ultimately,
the
district
court
must
exercise
12
its
discretion
to
conclude
whether, in light of the amassed record, a hearing would “offer
any reasonable chance of altering its view of the facts.” Chang,
250 F.3d at 86.
A.
Counsel’s Advice to Accept Plea Offers
Ramzan makes an overarching allegation that his counsel at
the time of the plea proceedings was ineffective because he
wrongly advised Ramzan to agree to the pleas.
The “highly deferential” standard developed in Strickland
for
evaluating
whether
counsel’s
performance
was
sufficient
extends to a lawyer’s selection of defense strategy from an
array of available options. Henry v. Poole, 409 F.3d 48, 63 (2d
Cir. 2005) (citing Strickland, 466 U.S. at 688-91); see also
United
(“While
States
v.
Simmons,
[defendant]
may
923
not
F.2d
be
934,
pleased
956
(2d
with
Cir.
the
1991)
strategy
employed by his trial attorney, that alone is insufficient to
establish his attorney’s ineffectiveness.”). The Supreme Court
has recently noted that it is particularly difficult to define
the duties of defense counsel in the plea-bargaining process, as
“[t]he art of negotiation is at least as nuanced as the art of
trial advocacy and . . . presents questions farther removed from
immediate judicial supervision.” Frye, 132 S. Ct. at 1408.
Ramzan acknowledges that his decision to accept the First
Plea
Agreement
–
which
contained
sentencing
terms
that
were
identical in substance to those contained in the Second Plea
13
Agreement
–
was
part
of
a
deliberate
strategy
endorsed
by
counsel to seek mitigation of his sentence through cooperation
with the Government. (Response to Answer of the United States of
America
in
Response
to
Motion
Pursuant
to
28
U.S.C.
§
2255
(“Pet. Reply”) at 3, 7.) Such a strategy is remarkably common
and cannot possibly be considered to fall outside of the range
of reasonable representation.8
Though
this
determination
obviates
the
need
for
a
discussion of prejudice, Ramzan’s claim would fail on the second
prong of Strickland as well. Ramzan’s acceptance of the First
Plea
Agreement
and
subsequent
Government
resulted
Agreement.
Namely,
in
the
efforts
improved
to
terms
stipulated
cooperate
in
the
guidelines
with
Second
range
the
Plea
remained
unchanged in the Second Plea Agreement, but, unlike in the First
Plea Agreement, Ramzan was granted the opportunity to argue for
a
sentence
outside
of
that
range.
Rather
than
result
in
prejudice, counsel’s advice proved to be to Ramzan’s benefit.
In
addition,
it
is
difficult
to
see
how
Ramzan
could
establish prejudice given that he makes no claim in the instant
petition that he would have pleaded not guilty and proceeded to
trial
but
for
counsel’s
advice.
8
See
Hill,
474
U.S.
at
59.
In fact, Ressler’s affidavit credibly suggests that the strategy to
cooperate, which led to the First Plea Agreement, was “at the behest of the
petitioner who was desperate to avoid incarceration.” (Ressler Aff. ¶ 11.)
14
Indeed, Ramzan concedes that he “admitted his guilt in open
court because he is guilty.” (Pet. Mem. at 11-12.)
B.
Counsel’s Explanation of Plea Terms
Ramzan
vaguely
alleges
that
his
attorney
did
not
sufficiently examine the facts contained in the plea agreements,
discuss certain aspects of the agreements with him, or ensure
that he understood their terms. (See, e.g., Pet. Mem. at 5-6
(“[C]ounsel failed to [e]nsure that [Ramzan] plea[d] guilty to a
plea agreement which includes correct aspect of basic factual
facts . . . .”).)
Ramzan’s claims in this regard are wholly conclusory and
without
any
supporting
details
or
facts.
Moreover,
the
allegations directly contradict Ramzan’s sworn statements at his
plea
allocutions
agreements
with
that
counsel
he
had
and
discussed
understood
the
them
terms
in
of
full.
the
Such
“[s]olemn statements in open court carry a strong presumption of
verity.” Blackledge v. Allison, 431 U.S. 63, 74 (1977). Equally
importantly, Ramzan’s claims are credibly disputed by Ressler in
his affidavit. Ressler asserts that Ramzan was provided his own
copy
of
counsel
the
and
First
was
Plea
fully
Agreement
apprised
to
that
read
by
and
discuss
entering
into
with
the
agreement, “he was waving his right to challenge the guidelines
and
to
appeal
his
sentence
so
long
as
it
was
within
the
parameters of the plea agreement.” (Ressler Aff. ¶ 13.) Ressler
15
further attests that Ramzan was fully apprised of the relevant
guidelines in entering into the Second Plea Agreement. (Id. ¶
19.)
Based on these considerations, as well as our “knowledge
gained in the underlying criminal proceeding,” we have little
difficulty concluding that Ramzan’s claims are not credible and
therefore
that
Ramzan
did
not
receive
ineffective
assistance
with respect to counsel’s understanding and communication of the
plea agreements. See Puglisi, 586 F.3d at 214 (noting that, in
considering whether a hearing is required on a Section 2255
claim, “a district court need not assume the credibility of
factual assertions . . . where the assertions are contradicted
by the record in the underlying proceeding”).
C.
Organizer or Leadership Enhancement
Ramzan contends that defense counsel improperly advised him
to accept a four-level enhancement in his guidelines calculation
for
having
maintained
a
leadership
role
in
his
criminal
activities.
Claims regarding alleged unfairness in the application of
the Sentencing Guidelines will not be considered on a Section
2255
motion
absent
a
showing
of
“a
complete
miscarriage
of
justice.” See Graziano v. United States, 83 F.3d 587, 590 (2d
Cir.
1996).
sentencing
However,
the
enhancement
question
was
of
whether
warranted
16
may
an
agreed-upon
bear
upon
a
determination
objective
of
whether
standard
performance
reasonableness.
of
counsel’s
See
fell
Hilario
below
v.
an
United
States, 141 F.3d 1151, 1998 WL 59114, at *1-2 (2d Cir. 1998)
(unpublished opinion); Muniz, 360 F. Supp. 2d at 579. As such,
we will analyze the challenged enhancement to determine whether
Ramzan’s
acquiescence
to
it
was
the
product
of
ineffective
assistance of counsel.
U.S.S.G. § 3B1.1(a) provides for a four-level enhancement
if
the
defendant
activity
otherwise
criteria
that
was
involved
extensive.”
with
“an
respect
organizer
five
or
Ramzan
to
or
leader
more
a
criminal
participants
concedes
the
of
that
Bailout
he
Scheme
or
meets
to
was
these
which
he
initially pleaded guilty. However, he contends that he did not
maintain an organizer or leader role with respect to the Stolen
Payoff Money Scheme to which he pleaded guilty pursuant to the
Superseding Information. He thus argues that he is not eligible
for
the
sentencing
enhancement
because
his
leadership
status
applied to only some but not all of his criminal activities.
Even assuming, arguendo, that Ramzan was not a leader or
organizer
Ramzan
of
does
the
not
Stolen
Payoff
Money
Scheme,
contest
having
assumed
such
the
a
fact
role
in
that
the
initial Bailout Scheme renders his instant argument meritless.
Consider
that
the
First
Plea
Agreement
concerned
only
that
initial Bailout Scheme. Under Ramzan’s theory, the inclusion of
17
an additional charge for the Stolen Payoff Money Scheme in the
Second Plea Agreement would actually warrant a decrease in his
guidelines range. This result would plainly defy common sense.
Simply
put,
Ramzan
was
“an
organizer
or
leader
of
a
criminal activity that involved five or more participants or was
otherwise
extensive.”
therefore
“adequate
counsel’s
advice
to
U.S.S.G.
factual
accept
§
3B1.1(a).
support
plea
Because
for
the
agreements
there
was
enhancement,”
incorporating
the
enhancement was neither deficient nor prejudicial. See Muniz,
360 F. Supp. 2d at 579.
D.
Double Jeopardy Claim
Ramzan claims that the sentence imposed violates the Fifth
Amendment’s
protections
against
double
jeopardy,
and
that
counsel’s failure to object to the sentence on Fifth Amendment
grounds constitutes ineffective assistance. Specifically, Ramzan
claims that the two-level enhancement to which he stipulated
under U.S.S.G. § 2B1.1(b)(14)(A) (currently codified at U.S.S.G.
§ 2B1.1(b)(15)(A)), for having “derived more than $1,000,000 in
gross receipts from one or more financial institutions as a
result of the offense,” cannot be applied since the amount of
financial
sentencing
loss
range
caused
by
pursuant
the
to
offense
U.S.S.G.
also
§
increased
his
2B1.1(b)(1)(J).
The
latter provision provides that when the amount of loss caused by
an offense is between $2,500,000 and $7,000,000, the offense
18
level
should
be
increased
by
eighteen
levels.
U.S.S.G.
§
2B1.1(b)(1)(J).
The
Second
Circuit
has
expressly
rejected
Ramzan’s
argument. It has ruled that “the cumulation of the dollar amount
enhancement [currently codified at U.S.S.G. § 2B1.1(b)(1)] and
the
financial
U.S.S.G.
§
institution
enhancement
2B1.1(b)(15)(A)]
double-counting
because
[currently
not
two
the
do
enhancements
codified
constitute
at
impermissible
serve
different
purposes.” United States v. Kilkenny, 493 F.3d 122, 131 (2d Cir.
2007) (citing United States v. Lauersen, 348 F.3d 329, 343 (2d
Cir. 2003), vacated on other grounds by 543 U.S. 1097 (2005)).
As
Ramzan’s
stipulate
to
counsel
terms
that
therefore
were
in
did
not
contravention
advise
of
him
the
to
Fifth
Amendment, counsel’s performance in this regard was plainly not
deficient or prejudicial.
E.
Summary
Given the nature of Ramzan’s claims, the record of the
prior proceedings, and the supplemental affidavit submitted by
Ramzan’s
could
former
counsel,
demonstrate
that
counsel
in
the
he
we
find
no
received
negotiation
and
possibility
ineffective
execution
of
that
Ramzan
assistance
the
two
of
plea
agreements. Because a hearing “would not offer any reasonable
chance of altering [our] view of the facts,” Chang, 250 F.3d at
19
86, we deny Ramzan’s claims without the need for an evidentiary
hearing.
III. Remaining Claims
Ramzan
brings
effectiveness
Court
at
of
an
his
sentencing,
assortment
counsel
and
at
of
claims
relating
to
the
sentencing,
findings
of
the
various
aspects
of
the
ultimate
sentence imposed.
However, having found that the Second Plea Agreement was
entered by Ramzan knowingly, voluntarily, and with the effective
assistance of counsel, the waiver contained therein precludes
Ramzan from challenging those events that occurred subsequent to
his plea.9 See Hernandez, 242 F.3d at 114 (holding that if the
constitutionality of the process by which a plea agreement was
consummated “passes muster,” an appeal waiver bars consideration
of all issues that fall within its scope, including “any issues
9
Even if Ramzan were not precluded from bringing these claims, we would find
them all to be without merit. For instance, Ramzan claims that his counsel at
sentencing was ineffective in failing to request a downward departure, but
counsel at sentencing strenuously contested the various aspects of the
guidelines calculation that Ramzan now challenges. (Resp. Ex. F at 6:1-9:22,
13:16-20:6, 23:25-24:21, 27:5-31:1, 33:5-34:19, 35:25-39:13, 40:7-47:8.)
Thus, sentencing counsel’s representation was more than adequate and, given
that the Court did impose a sentence below the guidelines range, was
certainly not prejudicial. Ramzan also contends that the Court failed to make
adequate findings in calculating the applicable guidelines range, but such a
claim is, as a general matter, not cognizable upon habeas review. See
Graziano, 83 F.3d at 590. Finally, Ramzan contends that he received a
sentence disproportionate to that received by other members of the
conspiracies in which he participated. This claim ignores the varying degrees
of culpability that may exist among different members of a conspiracy, as
well as the numerous other factors that the Court considers in exercising its
discretion upon sentencing. See United States v. Cavera, 550 F.3d 180, 189
(2d Cir. 2008). The claim is also curious in light of the fact that the Court
sentenced Ramzan to a term of imprisonment well below his applicable
guidelines range.
20
[the
about
States l
sentence");
defendant/s]
273
F.3d
506
509
1
Garcia-Santos
r.
(2d
v.
(holding
2001)
United
that
a
defendant' s waiver in a plea agreement "applies to grounds that
se after
as well as before
I
he made the wai ver
I
United States l 170 F. Supp. 2d 388
that
406
1
defendant/s
sentencing related
of
ineffective
assistance
barred by a valid wa
4387
(DAB),
03 Cr.
Aug. 26 1 2009)
) i
1335
of
sentencing
2009 WL 2634766 1
i
Rosa v.
(holding
including
claims l
counsell
Robles v. United States
(DAB),
)
(S.D.N.Y. 2001)
the
claim
ll
a
were
Nos. 08 Civ.
I
at *3
(S.D.N.Y.
(same).
Conclusion
For the foregoing reasons,
habeas
corpus
is
denied
Ramzan has not
made
constitutional
right,
issue. See 28 U.S.C.
a
without
the
substantial
a
§
Ramzan/s petition for a writ of
need
for
showing of
certificate
of
a
hearing.
the denial
appealability will
2253. Pursuant to 28 U.S.C.
§
As
of
a
not
1915(a) (3)
I
it is hereby certified that any appeal from this order would not
taken in good faith.
438
1
See
v. United Stat
369 U.S.
444-45 (1962).
SO ORDERED.
Dated:
New York New York
August 6, 2012
l
NAOMI REIC BUCHWALD
UNITED STATES DISTRICT JUDGE
21
Copies of the foregoing Memorandum and Order have been mailed on
this date to the following:
Petitioner:
Irshad Ramzan
Reg. No. 58882-054
Moshannon Valley Correctional Center
MVCC Unit B 1
555 I Geo Drive
Philipsburg, PA 16866
Attorney for the Government:
Daniel W. Levy, Esq.
U.S. Attorney's Office
One St. Andrew's Plaza
New York, NY 10007
22
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?