Abad v. USA

Filing 5

OPINION & ORDER: For the foregoing reasons, Petitioner's motion to vacate, set aside or correct his sentence pursuant to Section 2255 is denied. The court certifies, pursuant to 28 U.S.C. § 1915 (a) (3), that any appeal from this Order woul d not be taken in good faith, and therefore in forma pauperis status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S.438, 444-45 (1962). Furthermore, as the Petitioner makes no substantial showing of a denial of a const itutional right, a certificate of appealability will not issue. See 28 U.S.C. § 2253. SO ORDERED. (Signed by Judge John F. Keenan on 8/17/2015) (ama); [*** NOTE: Also docketed in related Criminal Case 09-CR-525(JFK), Doc.#222. ***] Modified on 8/18/2015 (bw).

USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
DATE FILED: Aug. 18, 2015

UNITED STATES DISTRICT COURT
UNITED STATES DISTRICT YORK
SOUTHERN DISTRICT OF NEWCOURT
SOUTHERN DISTRICT OF NEW YORK
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WILSON ABAD,
:
In re FANNIE MAE 2008 SECURITIES
08 Civ. 7831 (PAC)
::
LITIGATION
09 MD 2013 (PAC)
Petitioner,
::
:
:
Nos. 12 Civ. 6567 (JFK)
:
OPINION & ORDER (JFK
-against:
09 Cr. 525
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OPINION & ORDER
:
UNITED STATES OF AMERICA,
:
:
HONORABLE PAUL A. Respondent. States District Judge:
CROTTY, United
:
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APPEARANCES
BACKGROUND1
Petitioner Wilson Abad, Pro se
The early years of this decade saw a boom in home financing which was fueled, among
For Respondent United States of America
other things,Bharara
Preet by low interest rates and lax credit conditions. New lending instruments, such as
United States Attorney, Southern District of New York
subprime mortgages (high credit risk loans) and Alt-A mortgages (low-documentation loans)
By: Brian A. Jacobs
kept the boom going. Borrowers played a role too; they took on
JOHN F. KEENAN, United States District Judge: unmanageable risks on the
assumption that the Court would continue to riseWilson refinancing pro se motion be
Before the market is Petitioner and that Abad’s options would always
to available in set aside, or discipline was lacking in the system. Mortgage originators did
vacate, the future. Lending correct his sentence pursuant to 28
not hold 2255. For the following reasons, Petitioner’s motion
U.S.C. § these high-risk mortgage loans. Rather than carry the rising risk on their books, the
is originators sold their loans into the secondary mortgage market, often as securitized packages
denied.
I. Background
known as mortgage-backed securities (“MBSs”). MBS markets grew almost exponentially.
On But then the housing bubble Abad In 2006, the demand for housing dropped abruptly
February 16, 2010, burst. waived indictment and pleaded
guilty, pursuant to a plea agreement with the market, banks modified their
and home prices began to fall. In light of the changing housing Government, before
Judge Paul A. Crotty tounwilling to refinance home distribute and possess
lending practices and became (1) conspiracy to mortgages without refinancing.
with intent to distribute 100 grams and more of heroin, in
1
Unless otherwise indicated, all references cited “(¶ _)” or to the 841(b)(1)(B), and 846;
violation of 21 U.S.C. §§ 812, as841(a)(1),“Complaint” are to the Amended Complaint,

dated June 22, 2009. For purposes of this Motion, all allegations in the Amended Complaint are taken as true.

(2) conspiracy to distribute and possess with intent to
1

distribute 500 grams and more of cocaine, in violation of 21
U.S.C. §§ 812, 841(a)(1), 841(b)(1)(B), and 846; and
(3) conspiracy to launder narcotics proceeds, in violation of 18
U.S.C. § 1956(h).

In their plea agreement, the Government and

Abad stipulated that the appropriate sentencing range under the
U.S. Sentencing Guidelines was 121 to 151 months. (Gov’t Mem.
Ex. A at 5.)

Abad also stipulated that a sentence within or

below the guidelines would be reasonable. (Id.)

His agreement

contained a provision whereby he waived the right to appeal or
collaterally attack “any sentence within or below the Stipulated
Guidelines Range.” (Id. at 7.)

On December 16, 2010, Abad was

sentenced by this Court to a term of 108 months of incarceration
— thirteen months below the low end of his stipulated range — to
be followed by a four-year term of supervised release.1
Abad appealed his sentence on the basis that he received
ineffective assistance of counsel in his plea bargaining and
sentencing proceedings, and that his 108 month sentence was
substantively unreasonable. See United States v. Yutronic, 486
F. App’x 146, 147 (2d Cir. 2012).

The Second Circuit affirmed

Abad’s sentence but declined to address Abad’s ineffective

1 Probation’s Presentence Report had concluded that the appropriate
guideline range was actually 135 to 165 months’ imprisonment because
Abad was a Criminal History Category III. (PSR ¶ 128, 158.) The
Court, holding the Government to its bargain, sentenced Abad based on
a Category II Criminal History and the corresponding guideline range
because that was the stipulated Criminal History Category and
guideline range in the plea agreement. (Sentencing Tr. 4.)

2

assistance of counsel claim, noting that Abad was free to pursue
his claim by habeas petition. See id. at 148-49.
Petitioner timely filed for habeas releif, claiming four
instances of ineffective assistance of counsel.

First, he

claims that his attorney promised him that his total prison term
would be five years.

Second, he states that he was not provided

with case discovery prior to entering into his plea agreement.
Third, he argues that he was unable to prepare for trial because
there was no interpreter to help him communicate with his
attorney.

Fourth, he claims that he was not consulted during

the preparation of his sentencing memorandum, which led to the
report being incomplete.
II. Discussion
A. Legal Standard
Section 2255 allows a federal prisoner to collaterally
attack his conviction or sentence “upon the 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.” § 2255(a).

Thus, such a collateral attack is reserved

“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

3

miscarriage of justice.’” United States v. Bokun, 73 F.3d 8, 12
(2d Cir. 1995) (quoting Hill v. United States, 368 U.S. 424, 428
(1962)).

In cases where a petitioner is acting pro se, the

Court will interpret the claims set forth by petitioner
liberally, see Marmolejo v. United States, 196 F.3d 377, 378 (2d
Cir. 1999), and will “interpret them to raise the strongest
arguments that they suggest.” Burgos v. Hopkins, 14 F.3d 787,
790 (2d Cir. 1994).
B. Application
The Court will address each of Petitioner’s four arguments.
However, because Abad may have waived his ability to
collaterally challenge a sentence that is below the guidelines
range, the Court turns first to the voluntariness of Abad’s
waiver.
1. Plea Waiver
Abad’s plea agreement waived his right to collaterally
attack his sentence. (Gov’t Mem. Ex. A at 7.)

Such waivers are

“presumptively enforceable.” See United States v. Coston, 737
F.3d 235, 237 (2d Cir. 2013).

However, a court will not enforce

the waiver if the record suggests that the waiver or plea was
not knowing or voluntary. See United States v. Arevalo, 628 F.3d
93, 98 (2d Cir. 2010).

The waiver is made knowingly if the

record demonstrates that the defendant “fully understood the
potential consequences of his waiver.” United States v. Monzon,

4

359 F.3d 110, 116 (2d Cir. 2004); see also United States v.
Martinez, Nos. 13 Civ. 3454, 09 Cr. 1022, 2014 WL 7146846, at *6
(S.D.N.Y. Dec. 12, 2014).
Petitioner argues that the waiver was not made knowingly or
voluntarily, and is thus unenforceable, because he was not given
an opportunity to present “all § 3553(a) mitigation factors to
the Court” at sentencing despite being promised by his counsel
and by the Government that if he signed the agreement he would
be able to do so. (Abad Mem. 4–5.)
for at least three reasons.

Petitioner’s argument fails

First, Abad is not actually

challenging the voluntariness of his plea or his waiver, but
rather his attorney’s conduct at sentencing.

That is not

sufficient to render his waiver unenforceable. See United States
v. Williams, 448 F. App’x 156, 157 (2d Cir. 2012) (“A defendant
may not ‘dress up’ a challenge to the correctness of his
sentence as a Sixth Amendment claim for ineffective assistance
of counsel by arguing the deficiency of his counsel’s
performance ‘not at the time of the plea, but at
sentencing.’”(internal quotation marks omitted)); United States
v. Djelevic, 161 F.3d 104, 107 (2d Cir. 1998) (“If we were to
allow a claim of ineffective assistance of counsel at sentencing
as a means of circumventing plain language in a waiver
agreement, the waiver of appeal provision would be rendered
meaningless.

This we decline to do.”); Abramo v. United States,

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No. 12 Civ. 1803, 2014 WL 1171735, at *10 (S.D.N.Y. Mar. 21,
2014). (“The claim of ineffective assistance must relate to the
plea process and be meritorious to void an otherwise valid
waiver.”).

Moreover, as discussed later, counsel’s performance

at sentencing was not ineffective assistance.
Second, the record clearly demonstrates that Defendant had
a full opportunity to assert factors that would weigh in favor
of a sentence below the guidelines range. (Gov’t Mem. Ex. D.)
Petitioner’s counsel submitted a sentencing memorandum that
specifically addressed the § 3553(a) factors and argued at the
sentencing proceeding for a below guidelines sentence of five
years, the mandatory minimum. (Id. at 5–6; Sentencing Tr. 5–6.)
Indeed, as discussed in greater detail below, counsel even
directly addressed most of the factors that Petitioner now
argues should have been brought to the Court’s attention.
Third, the record offers no other indication that Abad’s
waiver of his right to collaterally attack his sentence was
unknowing or involuntary.

Just the opposite.

During the plea

allocution, Judgy Crotty established that Petitioner was of
clear mind, understood the nature of the plea agreement,
voluntarily agreed to its terms, and was satisfied with the
effectiveness of his attorney’s assistance. (Plea Tr. 4, 8, 12.)
Petitioner acknowledged that he was not made any promises in
exchange for signing the agreement. (Plea Tr. at 12).

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Significantly, and fatal to his claim, he also affirmed that he
agreed to waive his right to appeal or collaterally attack a
guidelines sentence of 121 to 151 months. (Plea Tr. at 13–14.)
The Court is “entitled to rely upon the defendant’s sworn
statements, made in open court . . . that he understood the
consequences of his plea.” See United States v. Hernandez, 242
F.3d 110, 112 (2d Cir. 2001).

Thus, Abad cannot simply walk

back from his sworn statements on the strength of unsupported
allegations that merely contradict his plea allocution. See
Blackledge v. Allison, 431 U.S. 63, 74 (1977) (“The subsequent
presentation of conclusory allegations unsupported by specifics
is subject to summary dismissal, as are contentions that in the
face of the record are wholly incredible.”); Hernandez, 242 F.3d
at 112–13.
2. Ineffective Assistance of Counsel
Even if Abad had not waived his right to collaterally
attack his sentence, his petition would be denied because he has
failed to show that he received ineffective assistance of
counsel.

Consequently, in so far as Petitioner’s ineffective

assistance claims can be construed as challenging the waiver of
his right to collaterally attack his sentence, that challenge

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would also be rejected for failing to establish ineffective
assistance of counsel.2
To succeed on an ineffective assistance of counsel claim, a
petitioner must demonstrate that counsel’s (1) “representation
fell below an objective level of reasonableness” and
(2) “deficient performance prejudiced the defense.” Strickland
v. Washington, 466 U.S. 668, 687–88 (1984).
The main problem for Abad on each of his claims is the same
one he ran into on the waiver issue.

As explained in more

detail below, most of his claims contradict his sworn statements
during the plea colloquy. See United States v. Gonzalez, 647
F.3d 41, 56–57 (2d Cir. 2011) (“Given that solemn declarations
in open court carry a strong presumption of verity, . . a
defendant’s bald statements that simply contradict what he said
at his plea allocution are not sufficient grounds to withdraw
his guilty plea.” (citations, alterations, and internal
quotation marks omitted)).
a. The Alleged Promise of a Five Year Sentence
Although Abad makes four claims of ineffective assistance
of counsel, the main thrust of his argument is that he only pled
guilty because his attorney promised him that he would face a

2 A collateral attack waiver is unenforceable where “defendant is
challenging the constitutionality of the process by which he waived
those rights.” Hernandez, 242 F.3d at 113–14.

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total prison term of five years, and he would not have pleaded
guilty to the money laundering count3 at all had he known he
would be sentenced to a longer term of imprisonment. (Abad Mem.
2).

Specifically, he claims that he always denied involvement

in money laundering but his attorney advised him to pled guilty
so that he would face a mandatory minimum of five years and that
his total sentence would therefore only be five years. (Id.)
As to the promise about the length of his sentence, the
plea agreement does set forth the applicable mandatory minimums:
5 years on Count 1 and 5 years on Count 2. (Gov’t Mem. Ex. A at
1–2.)

Abad was thus aware that he faced the five-year mandatory

minimum he sought.

Indeed, Petitioner’s attorney specifically

requested a five-year sentence. (Gov’t Mem. Ex. D. at 1;
Sentencing Tr. Ex. 5.)
But his claim that he was told that he would receive a five
year sentence is belied by the record.

In addition to the

mandatory minimums, Abad’s plea agreement also provides the
maximum statutory sentence for each Count:

40 years on Count 1,

40 years on Count 2, and 20 years on Count 3. (Id.)

Judge

3 Although it is not necessary to resolve this claim, the Court notes
that Abad’s allegation that he “always denied to his attorney that he
was involved in money laundering activity” is also contradicted by the
record. (Abad Mem. 2.) In the plea agreement he acknowledge “that he
has accepted this Agreement and decided to plead guilty because he is
in fact guilty.” (Gov’t Mem. Ex. A at 7). While under oath at the
plea allocution, Abad actually described his money laundering
activity, which involved transporting the proceeds of a narcotics sale
to a man in Ecuador. (Sentencing Tr. at 18-19, 21.)

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Crotty also went through the maximum sentence for each count
when taking Abad’s plea. (Plea Tr. at 10–11.)

Abad affirmed

that he understood that those were “the maximums that could be
imposed on [him] as a result of [his] pleading guilty” to those
Counts. (Id. at 11.)
The agreement also clearly states that the sentence “is
determined solely by the Court.” (Gov’t Mem. Ex. A at 6.)

It

notes that “the Sentencing Guidelines are not binding on the
Court.” (Id.)

Crucially, Abad’s plea agreement acknowledges his

guilty plea “authorizes the sentencing court to impose any
sentence, up to and including the statutory maximum sentence.”
(Id.)

At the plea hearing, Judge Crotty clarified the

sentencing range under the guidelines with Abad, and explained
to Petitioner that the Court was not bound by the guidelines and
reserved the right to deviate up or down from those guidelines.
(Plea Tr. at 13.)

Moreover, as indicated above, Abad told the

Court that he was not made any promises (outside of the plea
agreement) in exchange for his guilty plea. (Plea Tr. at 12.)
Thus, as evident from the plea agreement and confirmed by
the plea colloquy, Abad pleaded guilty knowing and understanding
that he could be incarcerated for more than five years.
Therefore, counsel’s alleged promise of a five-sentence cannot
support a claim for ineffective assistance. See Hernandez, 242
F.3d at 112–13 (affirming denial of ineffective assistance of

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counsel claim where defendant’s claim that counsel “told him he
would only be sentenced to two years in prison” was belied by
the record); United States v. Concepcion, Nos. 09 Civ. 4537, 06
Cr. 743, 2009 WL 4884095, at *3 (S.D.N.Y. Dec. 16, 2009)
(rejecting claim for ineffective assistance where defendant’s
claim that counsel’s “promise of [a] below-Guidelines sentence
influenced [defendant’s] decision to forgo trial” was
contradicted by the plea colloquy).
b. Case Discovery and Spanish Interpreter
The Court will consider Petitioner’s next two claims
together since they implicate many of the same parts of the plea
colloquy and governing law.

First, Petitioner claims counsel

was ineffective because she did not provide him case discovery
before he pled guilty. (Abad Mem. 2.)

Abad asserts that he

therefore had to either accept the plea deal or go to trial
without trial preparation. (Id. at 2-3).

Second, he alleges

ineffective assistance because his attorney did not use a
Spanish/English interpreter when preparing for trial with him.
(Abad Br. 3).
The record once again contradicts Abad’s assertions.

At

the plea allocution Abad indicated that he was satisfied with
counsel’s representation (Plea Tr. 8.)

He indicated that he had

an opportunity to review the information with his attorney, to
discuss the charges against him with his attorney, and to

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discuss pleading guilty with his attorney and its consequences.
(Plea Tr. 4–5, 8.)

Abad’s conclusory claim that he pled guilty

because he was unprepared to go to trial is contradicted by the
record and is, therefore, not credible.

Additionally, a

petitioner’s general allegation of being unprepared for trial,
absent any explanation of specific actions counsel should have
taken or how any inactions actually prejudiced his case, is
insufficient to support an ineffective assistance of counsel
claim. See Slevin v. United States, No. 98 Civ. 0904, 1999 WL
549010, at *5 (S.D.N.Y. July 28, 1999) (“Petitioner’s conclusory
allegations that counsel evinced ‘a general lack of preparation’
do not demonstrate that absent the alleged errors, the outcome
of the trial would have been different.”).
c. Sentencing Memorandum
Finally, Petitioner avers that he was not consulted in the
preparation of the December 14, 2010 sentencing memorandum
submitted by his attorney to the Court.

Specifically,

Petitioner claims that his attorney did not include issues that
that he expressly wanted included, namely: counsel failed to
advise the Court (1) about the full extent of Petitioner’s
efforts to assist the Government prior to sentencing; (2) about
Petitioner’s dire financial situation that led to his
involvement in criminal activity, specifically (a) medical costs
for his life-threatening illness for which he had no medical

12

insurance and (b) the fact that he was helping his father in
Ecuador pay for the treatment of his prostate cancer; and
(3) that Petitioner would agree to “fast track” deportation if
allowed to do so.

Petitioner argues that these factors would

have warranted a lower sentence, and that counsel’s failure to
raise them constituted ineffective assistance.
As explained above, this argument is squarely foreclosed by
the waiver agreement because it occurred at sentencing, after
Abad knowingly and voluntarily waived his right to collaterally
attack his sentence.

In any event, the record demonstrates that

Abad cannot show ineffective assistance of counsel on this
ground.
Petitioner’s allegations are again flatly contradicted by
the record.

In the sentencing memorandum, counsel informed the

Court that Abad’s efforts toward cooperation “most likely would
have led to the filing of a ‘5K letter’” if he had not been
“such an insignificant player in this crime.” (Gov’t Mem. Ex. D
at 2.)

Abad himself fails to specify the extent of his

cooperation.
Next, the sentencing memorandum informed the Court of
Abad’s diagnosis with a life-threatening illness, that Abad was
undergoing a regiment of medication, and that Abad had grave
concerns about his health. (Id. at 5.).

The memorandum also

advised the Court that the health of Abad’s aging father was

13

rapidly deteriorating. (Id. at 5-6.).

Although counsel did not

directly discuss Petitioner’s financial situation, instead
highlighting his “long and detailed work history,” (Id. at 56.), that did not prejudice Abad because his financial condition
was mentioned in the Presentence Report. (PSR ¶¶ 151–52.)
As to Abad’s claim that counsel failed to advise the Court
that Abad would agree to “fast track” deportation, the
Government correctly points out that “fast track” deportation
was not available in the Southern District of New York at the
time of Abad’s sentencing.4

Therefore, counsel’s failure to

include it in the sentencing memorandum cannot be considered
ineffective assistance.
Finally, to the extent Abad argues that counsel should have
done more to highlight any of the above factors, that claim is
not sufficient to vacate his conviction or alter his sentence.
The Court “must indulge a strong presumption that counsel’s
conduct falls within the wide range of reasonable professional

4 See Memorandum, U.S. Att’y’s Office for the S. Dist. of N.Y., FastTrack Policy for Felony Illegal Reentry Offenses (March 5, 2012),
http://www.fd.org/docs/select-topics---sentencing/Fast-TrackPolicies.pdf (memorandum implenting the Southern District’s policy
appears on pages 61 through 64) (“Illegal reentry defendants who were
sentenced prior to March 1, 2012, are not eligible to participate in
the new program.”); see also Memorandum, U.S. Dep’t of Justice, Office
of the Deputy Att’y Gen., Department Policy on Early Disposition or
“Fast-Track” Programs (Jan. 31, 2012),
http://www.justice.gov/dag/fast-track-program.pdf (explaining the
history of the “fast-track” program).

14

assistance." Strickland, 466 U.S. at 689.
the

3553 (a) factors,

§

Counsel did address

(Gov' t Mem. Ex. D at 6-8.), and

Petitioner has not overcome the presumption that counsel's
choice in stressing certain facts and not others might have been
effective advocacy. Strickland, 466 U.S. at 689 ("[T]he
defendant must overcome the presumption that, under the
circumstances, the challenged action might be considered sound
trial strategy." (internal quotation marks omitted)).
III. Conclusion

For the foregoing reasons, Petitioner's motion to vacate,
set aside or correct his sentence pursuant to Section 2255 is
denied.
The court certifies, pursuant to 28 U.S.C.

§

1915 (a) (3),

that any appeal from this Order would not be taken in good
faith, and therefore in forma pauperis status is denied for the
purpose of an appeal. See Coppedge v. United States, 369 U.S.
438, 444-45 (1962).
Furthermore, as the Petitioner makes no substantial showing
of a denial of a constitutional right, a certificate of
appealability will not issue. See 28 U.S.C.

§

2253.

SO ORDERED.

Dated:

New York, New York
August 17, 2015

~~0~

United States District Judge

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