Bossous v. USA
Filing
11
OPINION AND ORDER: Bossous motion to vacate, set aside or correct her sentence pursuant to 28 U.S.C. § 2255 is denied. I further decline to issue a certificate of appealability. The petitioner has not made a substantial showing of a denial of a federal right and appellate review is, therefore, not warranted. Tankleff v. Senkowski, 135 F.3d 235, 241 (2d Cir. 1998); Rodriquez v. Scully, 905 F.2d 24, 24 (2d Cir. 1990). The Court also finds pursuant to 28 U.S.C. § 1915(a) (3) that any appe al from this Order would not be taken in good faith. Coppedge v. United States, 369 U.S. 438, 444 (1962). The Clerk of Court shall dismiss this petition and close the case. SO ORDERED. (Signed by Judge Denise L. Cote on 9/26/2012) Copies Sent By Chambers. (ama)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
----------------------------------------X
MARLENE BOSSOUS,
:
Petitioner,
:
:
-v:
:
UNITED STATES OF AMERICA,
:
:
Respondent.
:
----------------------------------------X
11 Civ. 5303 (DLC)
09 Cr. 978-01
OPINION AND ORDER
Appearances:
For Petitioner:
Marlene Bossous
Reg # 62777-054
FPC Alderson-Federal Prison Camp
Glen Ray Road Box- A
Alderson, VA 24910
PRO SE
For Respondent:
Andrea Lee Surratt
U.S. Attorney’s Office, SDNY
One St. Andrew’s Plaza
New York, NY 10007
DENISE COTE, District Judge:
Marlene Bossous (“Bossous”) has filed a timely petition
pursuant to 28 U.S.C. § 2255, challenging her sentence.
She was
sentenced principally to 70 months’ imprisonment, the bottom of
a stipulated guidelines range, following her entry of a plea of
guilty to one of the four felony charges for which she had been
indicted.
For the following reasons, the petition is denied.
BACKGROUND
On October 14, 2009, Bossous was indicted for one count of
conspiracy to commit wire and bank fraud under 18 U.S.C. § 1349,
and three substantive counts of wire fraud under 18 U.S.C. §
1343.
On April 8, 2010, she executed a written plea agreement
in which she agreed to plead guilty to the charged conspiracy
(“Agreement”).
The Agreement contained a stipulation that the offense
level for the Count One conspiracy was 27.
The base level was
enhanced through three adjustments for the amount of loss,
number of victims and the defendant’s role in the offense.
Because the loss attributable to Bossous’ conduct “exceeds
$2,500,000 but is less than $7,000,000,” the offense level was
increased by 18 levels.
Because the offense “involved 10 or
more victims,” it was increased by 2 levels.
Anticipating a
three-level adjustment for acceptance of responsibility, the
parties agreed that the sentencing guidelines range would be 70
to 87 months’ imprisonment.
While either party could “seek a
sentence outside the Stipulated Guidelines Range,” the parties
stipulated that neither would seek an upward or downward
departure.
In addition, the Agreement contained the following waiver:
It is agreed (i) that the defendant will not
file a direct appeal, nor litigate under Title
28, United States Code, Section 2255 and/or
2
Section 2241, any sentence within or below the
Stipulated Guidelines Range set forth above (70
to 87 months’ imprisonment). . . . It is further
agreed that any sentence within the Stipulated
Guidelines Range is reasonable. This provision
is binding on the parties even if the Court
employs a Guidelines analysis different from
that stipulated to herein. . . .
The defendant pleaded guilty on April 8, 2010.
During her
plea allocution the following exchange occurred after the
defendant identified her signature on the Agreement:
THE COURT: Before signing this agreement, did
you read it?
THE DEFENDANT: Yes, your Honor.
.
.
.
THE COURT: When you signed it, did you think you
understood the agreement?
THE DEFENDANT: Yes, your Honor.
THE COURT: In this agreement there is a
guidelines calculation. It’s not binding on me
but there is a calculation between the part[ies]
that your guidelines range is 70 to 87 months in
prison. Do you understand that?
THE DEFENDANT: Yes, your Honor.
THE COURT: Do you understand that by signing
this agreement you have agreed that you will not
appeal or challenge or litigate your sentence so
long as I don’t sentence you to more than 87
months in prison?
THE DEFENDANT: Yes, your Honor.
The Presentence Report (“PSR”) presented a different
calculation of the sentencing guidelines range than the
3
Agreement.
While the parties had stipulated to a three-level
enhancement for Bossous’ role as “a manager or supervisor of the
criminal activity,” the probation officer recommended a fourlevel enhancement for the defendant’s role as “an organizer or
leader of the criminal activity.”
The PSR calculated the amount
owed by the defendant in restitution as $4,952,831.73.
In its Sentencing Memorandum, the Government recommended
that the Court adopt the Agreement’s three-level role
enhancement rather than the PSR’s four-level enhancement.
Bossous’ retained counsel, Mr. William Aronwald, also challenged
the PSR’s recommendation of a four-level enhancement for the
defendant’s role, and requested a non-guidelines sentence based
on the defendant’s attempted cooperation with the Government and
her family circumstances.
At sentencing on August 27, 2010, the Court accepted the
Agreement’s three-level role adjustment, finding that it
reflected a more “nuanced view” of the defendant’s role in the
offense than the four-level adjustment found in the PSR.
The
Court confirmed that the defendant and her attorney had reviewed
and discussed the PSR and, inter alia, did not contest its
calculation of restitution.
After identifying the parties’
sentencing submissions and hearing from counsel and the
defendant, the Court imposed principally a term of imprisonment
of 70 months and an obligation to pay restitution in the amount
4
of $4,952,831.73.
Bossous was advised of her right to appeal,
but did not appeal her conviction or sentence. 1
DISCUSSION
In her petition, Bossous does not request an opportunity to
withdraw her plea of guilty or suggest that she would not have
pleaded guilty but for her attorney’s ineffective assistance.
Nor does she challenge the knowing and voluntary nature of her
decision to plead guilty.
Instead, Bossous seeks to be
resentenced.
Bossous makes three arguments in her petition in support of
her claim that her attorney provided ineffective assistance to
her in connection with her sentence.
She contends that her
attorney should have contested the sentencing guidelines’
adjustments for the amount of loss and number of victims and
should have objected to the amount of restitution imposed at
sentence.
The first two arguments are foreclosed by the waiver
contained in the Agreement.
The final argument is rejected on
the merits.
1
Bossous asserts in passing in her petition that her attorney
did not advise her of her grounds for an appeal or of her right
to appeal. As the record from the sentencing proceeding
reflects that she was advised of her right to appeal, this issue
will not be addressed further. Bossous does not assert that she
asked her attorney to file an appeal.
5
A. Waiver of Collateral Attack Rights
A defendant’s waiver of the right to appeal or collaterally
attack a sentence within or below a stipulated guidelines range
is presumptively enforceable.
United States v. Arevalo, 628
F.3d 93, 98 (2d Cir. 2010); Garcia-Santos v. United States, 273
F.3d 506, 509 (2d Cir. 2001) (per curiam).
The Second Circuit
has explained the importance of enforcing such waivers:
In no circumstances . . . may a defendant,
who has secured the benefits of a plea agreement
and knowingly and voluntarily waived the right
to appeal a certain sentence, then appeal the
merits of a sentence conforming to the
agreement. Such a remedy would render the plea
bargaining process and the resulting agreement
meaningless.
United States v. Salcido-Contreras, 990 F.2d 51, 53 (2d Cir.
2003) (per curiam).
In contrast, a claim of ineffective
assistance of counsel will survive a waiver if the claim relates
to advice counsel gave with regard to entering the plea or the
process by which the defendant agreed to plead guilty.
See
Parisi v. United States, 529 F.3d 134, 138-39 (2d Cir. 2008).
The presumption of enforceability of a plea agreement’s
waiver of rights is overcome only in a narrow category of cases.
United States v. Riggi, 649 F.3d 143, 147 (2d Cir. 2011).
A
waiver of the right to challenge a sentence will not be valid
where “the waiver was not made knowingly, voluntarily, and
competently, when the sentence was imposed based on
6
constitutionally impermissible factors, such as ethnic, racial
or other prohibited biases, when the government breached the
plea agreement, or when the sentencing court failed to enunciate
any rationale for the defendant’s sentence.”
United States v.
Gomez-Perez, 215 F.3d 315, 319 (2d Cir. 2000).
In determining that a waiver of the right to file a Section
2255 petition was knowing and voluntary courts have considered
factors such as: (1) whether the petitioner signed the plea
agreement; (2) whether the petitioner stated during the plea
colloquy that she had read and understood the plea agreement;
(3) whether the petitioner, having been advised of the right to
appeal, failed to take a direct appeal from the sentence; and
(4) whether the petitioner failed to assert in her Section 2255
petition that she did not understand the plea agreement’s waiver
clause.
See Garcia-Santos, 273 F.3d at 508.
Where there has
been a knowing and valid waiver, an ineffective assistance of
counsel claim addressed to the correctness of the sentence
imposed is not viable.
See United States v. Djelevic, 161 F.3d
104, 107 (2d Cir. 1998); see also United States v. Wilkes, 20
F.3d 651, 653-54 (5th Cir. 1994) (petitioner’s argument that he
received ineffective assistance of counsel when his attorney
failed to object to alleged inaccuracies in the PSR was barred
by § 2255 waiver contained in plea agreement).
Thus, a claim
that an attorney was “ineffective at sentencing” is subject to a
7
plea agreement’s waiver of the right to attack a sentence.
Garcia-Santos, 273 F.3d at 509.
Two of Bossous’s claims, which essentially challenge the
term of imprisonment imposed at sentencing, are barred by the
Agreement’s waiver.
The Agreement contained an explicit waiver
of the right to challenge any sentence below 87 months’
imprisonment through a Section 2255 petition.
At her plea,
Bossous acknowledged that she had entered the Agreement
knowingly and voluntarily.
Bossous contends that she did not understand that the
Agreement’s waiver barred her from pursuing her claims regarding
the guidelines calculation in her Section 2255 petition.
She
asserts that she did not understand the term “collaterally
attack.”
But, neither the Agreement, nor the Court in its
colloquy with the defendant during her plea allocution, used the
term “collaterally attack.”
The Agreement’s waiver barred
litigation through “Section 2255” and the Court explained during
the proceeding at which the defendant pleaded guilty, that by
entering the Agreement Bossous had agreed “that you will not
appeal or challenge or litigate” any sentence below 87 months’
imprisonment.
This leaves no doubt that Bossous voluntarily and
knowingly waived her right to contest the sentence of 70 months’
imprisonment through this petition.
8
Bossous’ second argument is that the waiver should not be
enforced because she received ineffective assistance of counsel.
She asserts that her retained counsel was unfamiliar with
mortgage fraud; that he failed to object to either the
stipulation of losses in the Agreement or calculation of losses
in the PSR; that he failed to argue that extraneous factors
justified a reduction in the guidelines calculation of loss;
that he failed to challenge the number of victims of Bossous’
mortgage fraud scheme described in either the Agreement or PSR;
and he failed to review sentencing submissions with her and to
send them to the correct address.
This attack on the quality of representation she received
in connection with sentencing issues is inadequate to avoid the
Agreement’s waiver.
To avoid the waiver, the petitioner must
contend that she received ineffective assistance of counsel in
entering her plea and Bossous does not.
107.
Djelevic, 161 F.3d at
See also Parisi, 529 F.3d at 139; Garcia-Santos, 273 F.3d
at 508-09.
B. Ineffective Assistance of Counsel
Even if petitioner’s ineffective assistance of counsel
claims are liberally construed as an attack on the validity of
the process by which the waiver of her right to appeal was
procured, she has failed to demonstrate a violation of her Sixth
Amendment rights.
To prove ineffective assistance of counsel,
9
petitioner must show that: (1) her counsel’s performance fell
below an objective standard of reasonableness under prevailing
professional norms; and (2) she was prejudiced by her counsel’s
deficient performance.
687-96 (1984).
Strickland v. Washington, 466 U.S. 668,
In assessing counsel’s performance a court
“‘must indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance,’
bearing in mind that ‘[t]here are countless ways to provide
effective assistance in any given case’ and that ‘[e]ven the
best criminal defense attorneys would not defend a particular
client in the same way.’”
United States v. Aguirre, 912 F.2d
555, 560 (2d Cir. 1990).
In particular, counsel’s “strategic
choices made after thorough investigation of law and facts
relevant to plausible options are virtually unchallengeable; and
strategic choices made after less than complete investigation
are reasonable precisely to the extent that reasonable
professional judgments support the limitations on
investigation.”
Strickland, 466 U.S. at 690-91.
The second
prong, prejudice, requires a showing that, but for counsel’s
deficient performance, there exists a reasonable probability
that the result would have been different.
United States v.
Torres, 129 F.3d 710, 716 (2d Cir. 1997).
There are only two of the issues raised by Bossous that
could be construed as criticism of her attorney in connection
10
with the plea negotiations.
Bossous takes issue with two
sentencing guidelines enhancements in the Agreement she executed
in advance of her plea of guilty.
These are the eighteen-level
enhancement for the amount of loss and the two-level enhancement
for the existence of ten or more victims.
1. Calculation of Loss
In the Agreement, petitioner stipulated that she had caused
more than $2,500,000 but less than $7,000,000 of loss to the
victims of the fraud.
Bossous contends that the Government
incorrectly calculated the amount of loss by failing to subtract
from the face values of the fraudulently obtained loans, the
value of the collateral that the financial institutions had
recovered or could expect to recover.
This contention fails to
state a claim for ineffective assistance of counsel.
First, factual stipulations in plea agreements “are
bargaining chips in the hands of defendants. . . . Such
bargaining chips can be exchanged for concessions from the other
party only if they are enforceable”
386 F.3d 404, 412 (2d Cir. 2004).
United States v. Granik,
In this case, it would have
been a reasonable strategic decision to stipulate to an amount
of loss of at least $2,500,000.
Bossous does not dispute that
the face value of the fraudulent loans was $13,517,486, that she
participated in $11,645,910 worth of those loans, and that two
of the six defrauded banks reported that they had suffered
11
losses of $4,942,831.
In these circumstances, it was reasonable
for defense counsel to negotiate an agreement with the
Government that acknowledged that Bossous was responsible for a
loss that exceeded $2,500,000.
After all, a sentencing court is
only required to make a reasonable estimate of loss in
calculating a sentencing guidelines range.
Note 3(C).
U.S.S.G. 2B1.1 App.
Bossous has failed to demonstrate that a decision to
negotiate a loss figure of $2,500,000 fell below the range of
reasonable professional assistance, or that she suffered any
prejudice from such a decision.
2. Number of Victims
In the Agreement, the parties stipulated that Bossous had
injured ten or more victims.
In essence, Bossous questions
whether there were as many as ten victims.
Arguably, she is
asserting that her attorney should have required the Government
to identify the ten victims when negotiating the Agreement.
This claim of ineffective assistance fails as well.
At various points in her prosecution the Government or the
Probation Department identified by name six financial
institutions that were defrauded by the defendant’s scheme.
They also referred to the fact that “many” individual straw
buyers had their credit ruined as a result of the scheme 2 and
2
The parties do not address whether a harm to a person’s credit
rating is a financial loss or only a reputational loss. It will
12
that owners of property suffered losses.
Bossous questions
whether sellers of property can be considered victims since they
were paid for their property.
Nonetheless, in these
circumstances, defense counsel could reasonably have concluded
that a stipulation to a two-level enhancement for injury to ten
or more victims was a reasonable course of action.
Bossous obtained several benefits from the Agreement.
First, and perhaps foremost, by executing the Agreement the
defendant narrowed the areas of dispute with the Government over
the effect of her criminal conduct and could ask the Court to
focus its attention on her equitable arguments for a reduced
sentence.
Moreover, in the Agreement the Government took the
position that Bossous’ role enhancement should be for three and
not four levels and that she was entitled to a three-level
adjustment for acceptance of responsibility.
It also agreed to
dismiss the open counts against the defendant at the time of
sentence.
And of course, the Agreement formally recognized
Bossous’ right to seek a non-guidelines sentence premised on the
factors set forth in 18 U.S.C. § 3553(a), a provision on which
her attorney relied in his sentencing submissions.
Bossous has
not shown that her attorney was ineffective in connection with
be assumed for purposes of this Opinion that it is only a
reputational injury and does not qualify the person as a victim.
13
the negotiation of the Agreement, and this claimed violation of
her Constitutional rights fails as well.
C. Restitution
Lastly, Bossous claims that the restitution she was ordered
to pay, in the amount of $4,952,831.73, was calculated
incorrectly and violates the Victim and Witness Protection Act.
The conspirators obtained over 40 home mortgage loans with a
face value of over $13,000,000.
Bossous participated in
procuring loans with a face value of over $11,000,000.
There
were at least six institutions that issued these mortgages, but
at the time of sentencing, the PSR calculated the amount owed in
restitution based on the losses sustained by only two banks.
The PSR found that “[r]estitution in the amount of at least
$4,952,831.73 is owed by the defendant and her co-conspirators.”
The PSR specified that $2,975,804.95 was owed to Bank of
America, and $1,977,026.78 was owed to Chase Bank.
A restitution award is a noncustodial sentence and cannot
be challenged under a petition pursuant to 28 U.S.C. § 2255.
consequence, this claim must be denied.
In
Kaminski v. United
States, 339 F.3d 84, 85 n.1, 87 (2d Cir. 2003).
Bossous cites United States v. Kristl, 437 F.3d 1050 (10th
Cir. 2006).
That case is inapposite.
It addresses the standard
of review applied by a Court of Appeals to a district court’s
erroneous calculation of the sentencing guidelines range, not an
14
allegedly erroneous calculation of a restitution award.
Id. at
1054–55.
In any event, Bossous has not shown that there was any
error in the calculation of restitution.
The PSR calculated a
conservative amount Bossous owed in restitution.
Bossous was
advised at her plea to read the PSR carefully and point out any
error in it to her attorney before sentencing.
Bossous read the
PSR prior to her sentencing, and made no objection at sentencing
to the calculation.
She does not suggest that she saw any error
at that time and does not identify any errors in the calculation
of restitution owed to the two identified victims in the PSR.
She has therefore shown no basis to find any error in the
imposition of the obligation to pay restitution.
Of course, in
the event either Chase Bank or Bank of America has been able to
reduce its losses due to recoveries in foreclosure proceedings
or otherwise, the amount that Bossous will owe in restitution to
these two institutions will be correspondingly reduced.
United
States v. Oladimeji, 463 F.3d 152, 160 (2d Cir. 2006).
CONCLUSION
Bossous’ motion to vacate, set aside or correct her
sentence pursuant to 28 U.S.C. § 2255 is denied.
I further
decline to issue a certificate of appealability.
The petitioner
has not made a substantial showing of a denial of a federal
right and appellate review is, therefore, not warranted.
15
Tankleff v. Senkowski, 135 F.3d 235, 241 (2d Cir. 1998);
Rodriquez v. Scully, 905 F.2d 24, 24
also finds pursuant to 28 U.S.C.
§
(2d Cir. 1990).
1915(a) (3) that any appeal
from this Order would not be taken in good faith.
United States, 369 U.S. 438, 444
The Court
(1962).
Coppedge v.
The Clerk of Court
shall dismiss this petition and close the case.
SO ORDERED:
Dated:
New York, New York
September 26, 2012
United S
16
Judge
COPIES SENT TO:
Marlene Bossous
Reg # 62777-054
FPC Alderson - Federal Prison Camp
Glen Ray Road Box-A
Alderson, VA 24910
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?