BACON v. USA

Filing 1

MEMORANDUM ORDER OF COURT DENYING 1 MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE PURSUANT TO 28 U.S.C SECTION 2255. The Clerk of Court shall mark this case CLOSED. Mailed to Pro Se Petitioner this same day. Signed by Judge Arthur J. Schwab on 12/23/2014. (lcb)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA,
Plaintiff,

Criminal No. 11-0042
ELECTRONICALLY FILED

v.
HAROLD BACON,
Defendant.
MEMORANDUM ORDER OF COURT RE: DEFENDANT’S PRO SE MOTION TO
VACATE, SET ASIDE, OR CORRECT SENTENCE PURSUANT TO TITLE 28 UNITED
STATES CODE SECTION 2255 (DOC. NO. 1332)
In November 2012, Defendant pled guilty before this Court to charges against him for his
role in a heroin conspiracy and related firearm possession (a lesser included offense at Count I
and Count IV), pursuant to a plea agreement.1 Doc. No. 1009. This plea agreement contained a
binding waiver of appellate rights, which Defendant entered into after a thorough colloquy by the
Court. On April 9, 2013, Defendant was sentenced to a term of imprisonment of 240 months at
Count I and a consecutive 60 months imprisonment as to Count IV. Doc. No. 1204. This
sentence was significantly below the advisory guideline range of 352 to 425 months
imprisonment. Doc. No. 1200. A mandatory minimum of not less than 15 years applied,
consisting of not less than 10 years at Count I and a mandatory consecutive 5 years as to Count
IV.
Defendant appealed his sentence to the United States Court of Appeals for the Third
Circuit. Doc. No. 1205. On September 18, 2013, the United States Court of Appeals for the
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Defendant was also charged at Counts II and III of the Superseding Indictment (Distribution and/or
Possession with Intent to Distribute a Quantity of Heroin, a Schedule I Controlled Substance). These
charges were dismissed following the sentencing hearing.

Third Circuit granted the Government’s Motion to Enforce Appellate Waiver, which terminated
Defendant’s appeal. Doc. No. 1278.
Presently before this Court is Defendant’s Pro Se Motion to Vacate, Set Aside, or Correct
Sentence Pursuant to 28 U.S.C. § 2255. Doc. No. 1332. Defendant moves this Court to set aside
his 300 month sentence because the Government filed an Information Stating Prior Conviction
Pursuant to 21 U.S.C. 851, which increased the mandatory minimum sentence. Doc. No. 1001.
The Government wholly opposes Defendant’s Motion. Doc. No. 1337.
Defendant’s present Motion will be denied based upon the appellate waiver contained in
his binding plea agreement. First, the waiver applies to Defendant’s Motion because the plea
agreement specifically denotes that Defendant “waives his right to file a motion to vacate
sentence, under 28 U.S.C. § 2255” and because none of the limited exceptions to the direct
appeal waiver apply.2 Defendant contends that his guilty plea was not entered into knowingly
and voluntarily because: (1) the term “miscarriage of justice” was not thoroughly explained; and
(2) the Court did not explain that “gravity” of the appellate waiver.
Despite Defendant’s arguments, he was informed by the Court, during his change of plea
hearing that he was giving up his rights to a trial and post-sentencing relief by pleading guilty.
Doc. No. 1224. This was also clearly stated in the plea agreement itself. (“Harold Bacon further
waives the right to file a motion to vacate sentence, under 28 U.S.C. § 2255, attacking his
conviction or sentence, and the right to file any other collateral proceeding attacking his
conviction or sentence.”). Defendant was provided with an opportunity to speak with his
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The plea agreement provided that Defendant’s appellate waiver did not apply in the following situations:
(1) if the United States appeals from the sentence; (2) if the sentence exceeds the statutory maximum; or
(3) if the sentence unreasonably exceeds the advisory guideline range determined by the Court. None of
these exceptions apply.
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Counsel if he did not understand any of the Court’s questions about the plea agreement or if he
disagreed with the Government’s recitation of the terms of the plea agreement. He chose not to.3
Defendant stated, while under oath, that he had reviewed the plea agreement with counsel and he
understood all of the consequences of pleading guilty, including his limited ability to challenge
his sentence. Defendant also agreed that he understood that the Court was not bound by any
recommendation of sentence by the Government or Defense and acknowledged that no one had
predicted or promised what sentence the Court would impose. Defendant continued to plead
guilty. The Court’s colloquy during the change of plea hearing and Defendant’s statements
during the same, evidence that Defendant’s change of plea pursuant to the plea agreement was
knowing and voluntary and should be enforced by this Court, as it has been by the United States
Court of Appeals for the Third Circuit. See United States v. Mabry, 536 F.3d 231, 237-38 (3d
Cir. 2008).
Defendant also argues that enforcement of the plea agreement and the appellate/collateral
proceedings waiver contained therein would work a miscarriage of justice because his Counsel
provided ineffective assistance by: (1) advising Defendant to enter into a plea agreement and (2)
failing to “secure” a stipulated sentence in the plea agreement pursuant to Federal Rule of
Criminal Procedure 11(c)(1)(C). The Court first notes that the Court would not have been
required to accept any stipulated sentence that Defendant and the Government would have
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The Court notes that Defendant asked to be able to ask his lawyer a question following the Court’s
question if Defendant understood that if he pled not guilty, he would be able to be assisted by an attorney
at the trial of these charges. Doc. No. 1222, pg. 6-7. After discussion between Defendant and his
Counsel, Defendant stated that he had sufficient time to discuss the matter with Counsel and answered the
Court’s question in the affirmative.
A similar exchange occurred after the Government’s recitation of the summary of the offense conduct.
Id. at pgs. 26-27.
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included in a plea agreement. The Court would have been free to reject the stipulated sentence
(by rejecting the plea agreement itself) if the Court felt that it was not an appropriate sentence for
this Defendant based upon the specific offenses. Therefore, Defense Counsel’s alleged failure to
negotiate a stipulated sentence does not demonstrate ineffective assistance and Defendant’s
sentence will not be disturbed on this ground.
Further, Defendant has not demonstrated that his Counsel improperly advised him to
enter into the plea agreement or that enforcement of the plea agreement would be a miscarriage
of justice. As noted by the Government, Defendant’s burden in this instance is very high
because the miscarriage of justice exception to appellate/collateral challenge waivers is designed
to only be for rare and unusual cases. See United States v. Stabile, 633 F.3d 219, 246-48 (3d Cir.
2011). Defendant’s Motion does not present one of those rare and unusual cases because there is
no evidence of ineffective assistance of counsel or the like, which would result in a miscarriage
of justice if Defendant’s plea agreement is enforced. Therefore, the following Order is entered:
AND NOW, this 23rd day of December 2014, IT IS HEREBY ORDERED THAT
Defendant’s Pro Se Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. §
2255 (Doc. No. 1332) is DENIED.
s/ Arthur J. Schwab
Arthur J. Schwab
United States District Judge

cc:

All Registered ECF Counsel and Parties
Harold Bacon
Reg. No. 32806-068
FCI Cumberland
P.O. Box 1000
Cumberland, MD 21501
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