Syed v. United States of America
Filing
19
MEMORANDUM OPINION OF THE COURT. Signed by District Judge Aleta A. Trauger on 5/22/18. (xc:Pro se party by regular mail.) (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(gb)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
ZEESHAN SYED,
Movant,
v.
UNITED STATES OF AMERICA,
Respondent.
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No. 3:17-cv-1019
Judge Aleta A. Trauger
MEMORANDUM
The movant, Zeeshan Syed, a federal prisoner presently housed at FCI Oakdale II in
Oakdale, Louisiana, brings this action pursuant to 28 U.S.C. § 2255 to set aside, vacate and
correct an allegedly illegal sentence imposed by another judge of this court on December 4,
2015. (Crim. Case. No. 3:11-cr-0083(1), ECF Nos. 1062, 1137). 1 Judgment was entered on
December 7, 2015. (ECF No. 1064.) On July 10, 2017, the movant filed a pro se Motion under
28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (“Motion”) raising claims for
ineffective assistance of counsel. (ECF No. 1.) The respondent filed an opposition to the
movant’s Motion (ECF No. 9), and the movant filed a reply (ECF No. 17.). For the reasons set
forth herein, the court finds that an evidentiary hearing is not required and that the record
establishes that the movant is not entitled to relief.
I.
BACKGROUND
On April 20, 2011, the movant was indicted and charged with one count of violation of
21 U.S.C. § 846, conspiracy to distribute 5 kilograms or more of cocaine and 100 kilograms or
more of marijuana. (ECF No. 45-1.) On October 31, 2012, a superseding indictment was filed,
1
All citations are to the record in Case No. 3:11-cr-0083(1), unless otherwise noted.
charging the movant with the conspiracy count (Count One) and one count of violation of
18 U.S.C. § 1956(h), conspiracy to launder money (Count Two). (ECF No. 457-1.)
Prior to the plea hearing, the movant sent two letters to his counsel, Lawrence Arnkoff.
On August 4, 2012, the movant wrote to Mr. Arnkoff telling him that “people used to tell me all
the time that I am lucky. I just feel like trying my luck and I want you as my attorney to go
along with me.” (Case No. 3:17-cv-1019, ECF No. 17 at Page ID# 97.) Several months later, on
October 28, 2012, the movant wrote to Mr. Arnkoff stating, “I want to plead guilty in a manner
that you can argue about quantity, leader role, everything on final sentencing.” (Id. at Page ID#
93.)
On November 5, 2012, the movant entered into a plea agreement with the United States
under the provisions of Fed. R. Crim. P. 11, and, in conjunction therewith, submitted to the court
a petition to enter a guilty plea to Counts One and Two of the superseding indictment, which the
court accepted. (ECF No. 472.) In the plea agreement, the movant admitted to the facts
underlying the charges in the superseding indictment and agreed that the facts established his
guilt beyond a reasonable doubt. (Id. at Page ID## 2133-37.) He also acknowledged that he had
read the plea agreement, he had reviewed it with his attorney, he understood his rights with
respect to the superseding indictment, he understood the penalties associated with the crimes to
which he was pleading guilty and the applicable sentencing guidelines. (ECF No. 472 at Page
ID# 2147.) He also acknowledged that he voluntarily agreed to enter the plea agreement. (Id.)
At the plea hearing, the movant testified that he read the recitation of facts set forth in the
plea agreement and that the facts stated therein were true. (ECF No. 1125 at Page ID# 7193.)
He also testified that the facts were accurate and that he had nothing to add. (Id.) Additionally,
the movant acknowledged that he understood the penalties associated with the charges to which
2
he had agreed to plead guilty. (Id. at Page ID# 7182-85, 7187-89.) The movant testified that he
understood the terms of the plea agreement, that he had gone over the plea petition and plea
agreement with his attorney and that there was not any part of either the plea petition or plea
agreement that he did not understand. (Id. at Page ID# 7190-91.) The movant testified that he
had no questions about any part of the plea petition or plea agreement and that he understood the
rights he was giving up in entering the plea agreement. (Id. at Page ID## 7183-86, 7191.) The
movant also testified that his lawyer was not making him waive his rights and plead guilty, that
the decision to do so was his own decision, and that he made the decision freely with the benefit
of his lawyer’s advice. (Id. at Page ID# 7193.)
After the plea agreement was accepted by the court, a presentence report was prepared.
The movant’s presentence report calculated his final adjusted offence level at 43 and his
Criminal History Category at Category 1, which placed the movant’s guideline range at life
imprisonment. (ECF 1137 at Page ID## 7305-06.)
Although the movant accepted the government’s plea agreement, he did not accept the
government’s offer regarding sentencing. The movant alleges that “a month before sentencing
[he] received a message to call his counsel and was informed about the offer of 180 months
which was given by the government on [the] condition [that the movant’s] counsel will not argue
or ask [for] anything less than that on sentencing.” (ECF No. 1 at Page ID# 4.) The movant
alleges that he asked Mr. Arnkoff, to “see if you can get 168 months,” but learned that the
government was unwilling to agree to a sentence less than 180 months. (Id.) The movant
alleges that, when he asked Mr. Arnkoff what he should do, Mr. Arnkoff suggested that the
movant “gamble.” (Id.) The movant alleges that Mr. Arnkoff told the movant that he would
argue that the movant should be sentenced to 144 months, that the government would seek 216
3
months, and that “most likely [the] judge will meet us in the middle and sentence you to 180
months.” (Id.)
On December 4, 2015, the court held a sentencing hearing. Prior to the hearing, the
government filed a Motion for Downward Departure, as it had agreed to do, and requested that
the court impose a 216-month sentence. (Id. at Page ID## 7308-09.) At sentencing, the court
agreed that a downward departure was appropriate. (Id. at 7310.) As such, the argument at the
hearing focused on determining the appropriate sentence for the movant. At the conclusion of
the hearing, the movant was sentenced to a 216-month term of imprisonment. (ECF No. 1137 at
Page ID# 7329.) Judgment was entered on November 20, 2015. (ECF No. 43.)
II.
THE CURRENT MOTION
The movant asserts three ineffective assistance of counsel claims: (1) that trial counsel
was ineffective for failing to encourage him to accept the government’s offer to request a
sentence of 180 months if the movant’s counsel requested the same sentence; (2) that trial
counsel was ineffective for failing to advise the movant that pleading to the money laundering
count would increase his offense level by 2 levels under U.S.S.G § 2S1.1(b)(2)(B) and (3) that
trial counsel was ineffective for failing to object to the 2-level enhancement for possession of a
firearm under U.S.S.B. § 2D1.1(b)(1). In its response, the government argues that the movant’s
counsel’s performance was not deficient, and, even if it was, the movant has not established
prejudice. In his reply, the movant reargues his claims.
III.
STANDARD OF REVIEW
Federal prisoners must file any motion to vacate within one year of the date on which: (1)
the judgment of conviction becomes final; (2) a governmental impediment to making the motion
is removed; (3) a right was initially recognized by the Supreme Court, if that right was newly
4
recognized by the Supreme Court and made retroactively applicable to cases on collateral
review; or (4) the facts supporting the claim could have been discovered with due diligence. 28
U.S.C. § 2255(f)(1)–(4). To prevail upon a motion for habeas relief under 28 U.S.C. § 2255,
prisoners must allege that: (1) their conviction resulted from an error of constitutional
magnitude; (2) their sentence was imposed outside the statutory limits; or (3) an error of fact or
law occurred that was so fundamental as to render the entire proceedings invalid. Mallett v.
United States, 334 F.3d 491, 496–97 (6th Cir. 2003); see also Moss v. United States, 323 F.3d
445, 454 (6th Cir. 2003). Prisoners must sustain their allegations by a preponderance of the
evidence. See Pough v. United States, 442 F.3d 959, 964 (6th Cir. 2006); United States v.
Campbell, 224 F.Sup. 549, 553 (E.D. Ky. 2016).
The court should hold an evidentiary hearing in a Section 2255 proceeding where a
factual dispute arises, unless the petitioner’s allegations “‘cannot be accepted as true because
they are contradicted by the record, inherently incredible, or [are] conclusions rather than
statements of fact.’ ” Ray v. United States, 721 F.3d 758, 761 (6th Cir. 2013)(quoting Arredondo
v. United States, 178 F.3d 778, 782 (6th Cir. 1999)). In addition, no hearing is required where
“the record conclusively shows that the petitioner is entitled to no relief.” Arredondo, 178 F.3d at
782 (quoting Blanton v. United States, 94 F.3d 227, 235 (6th Cir. 1996)). See also Fifer v. United
States, 660 F.App’x. 358, 359 (6th Cir. Aug. 22, 2016).
Having reviewed the pleadings, briefs and records filed in the movant’s underlying
criminal case, as well as the pleadings, briefs and records filed in this case, the court finds that it
need not hold an evidentiary hearing in this case to resolve the movant’s claims. The record
conclusively establishes that the movant is not entitled to relief on his claims for the reasons set
forth herein.
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IV.
DISCUSSION
A.
Ineffective Assistance of Counsel: Legal Standard
In Strickland v. Washington, 466 U.S. 668, 687-88 (1984), the Supreme Court established
a two-prong test by which to evaluate claims of ineffective assistance of counsel. To establish a
claim of ineffective assistance of counsel, the petitioner must prove:
(1) that counsel’s
performance fell below an objective standard of reasonableness; and (2) that counsel’s deficient
performance prejudiced the defendant, resulting in an unreliable or fundamentally unfair
outcome. The two-part Strickland test applies to challenges to guilty pleas based on ineffective
assistance of counsel. Hill v. Lockhart, 474 U.S. 52, 58 (1985). Regarding the first prong, the
court applies the same standard articulated in Strickland for determining whether counsel’s
performance fell below an objective standard of reasonableness. Id. In analyzing the prejudice
prong, the focus is on whether counsel’s constitutionally deficient performance affected the
outcome of the plea process. “[I]n order to satisfy the ‘prejudice’ requirement, the defendant
must show 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.” Id. at 59.
1.
Rejection of Government Offer
The movant argues that his trial counsel, Lawrence Arnkoff, should have encouraged him
to accept the government’s offer to recommend a 180-month sentence and should not have
suggested that he “gamble” on obtaining a shorter sentence. In support of this argument, the
movant cites to a letter written by Mr. Arnkoff on February 20, 2016, that states, in pertinent
part:
I was upset for weeks that I was not able to convince the Judge to give you a
lesser sentence. After he sentenced [two of the movant’s co-defendants, one who
received a life sentence and one who received a 20-year sentence], it became
more apparent that my perspective was generated more by hope than by reality.
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(Case No. 3:17-cv-1019, ECF No. 1 at Page ID# 26.) The movant suggests that the statement
“my perspective was generated more by hope than by reality” amounts to an admission by Mr.
Arnkoff that he told the movant to gamble on getting a better sentence than the government was
offering. However, nothing in Mr. Arnkoff’s statement establishes that he encouraged the
movant to gamble at sentencing. Rather, it suggests only that Mr. Arnkoff’s perspective on the
movant’s chances of obtaining a sentence less than 180 months was based more on hope than
reality. Mr. Arnkoff’s statement sheds no light on the movant’s argument that it was Mr.
Arnkoff who suggested that the movant “gamble” and reject the government’s offer of a 180month sentence. What is more, in an affidavit attached to the government’s response, Mr.
Arnkoff, declares, in pertinent part, that:
I believe a week or two prior to the sentencing hearing AUSA Brent Hannafan
agreed to make a sentencing recommendation to the Court for a 15-year sentence.
If Mr. Syed rejected the offer Mr. Hannafan was going to ask the Court to impose
an 18-year sentence. I recall going to see Mr. Syed to discuss the offer because it
was a significant matter. I explained all the ramifications of the offer very
carefully to him. Mr. Syed was upset that other defendants in the case were
getting considerably less time. I always cautioned him that they had cooperated
from the outset, they did not have as much of a leadership role in the organization,
and most importantly they never obstructed justice by threatening to harm the
informant. I advised Mr. Syed if he wanted me to argue for a sentence less than
15 years we had a right under the plea agreement to do so. He seemed to be
fixated on receiving a sentence in the 10-12 year range. He very clearly told me
he wanted to gamble on getting a sentence lower than 15 years. I did not
encourage his decision and I reiterated the Court could impose a sentence of less
than 15 years, a sentence of 18 years as recommended by the Government or the
Judge could impose a sentence greater than 18 years. He alone chose to reject the
sentencing recommendation. In retrospect I am not sure the recommendation
would have mattered to Judge Haynes because the Government recommended a
15-year sentence for [a] co defendant . . . and Judge Haynes imposed a sentence
of 20 years.
(Id. ECF No. 10-1 at Page ID# 55.) The court credits Mr. Arnkoff’s version of events in light of
the letters the movant sent to Mr. Arnkoff on August 4, 2012 and October 28, 2012 in which the
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movant explained to Mr. Arnkoff that, he had always been told that he was lucky and that he felt
“like trying [his] luck and I want you as my attorney to go along with me,” (Case No. 3:17-cv1019, ECF No. 17 at Page ID# 97) and that he wanted to “plead guilty in a manner that you can
argue about quantity, leader role, everything on final sentencing” (Id. at Page ID# 93.) While the
letters were sent around the time of the plea hearing, they evidence the movant’s approach to his
case—that he wanted to try his luck. Additionally, the only way that Mr. Arnkoff could argue
about quantity, leader role and “everything” on final sentencing, was if the movant did not accept
the government’s offer of a 180-month sentence recommendation in exchange for the movant not
arguing for a lighter sentence-for example, by arguing that there was insufficient evidence to
substantiate the quantity of drugs or that the movant was not a leader. As such, the court finds
that counsel did not advise the movant to reject the government’s offer and “gamble” on
obtaining a lighter sentence.
However, even if Mr. Arnkoff had been deficient in encouraging the movant to reject the
180-month offer, the movant has not established that he was prejudiced by Mr. Arnkoff’s
allegedly deficient assistance. Where, as here, the movant alleges that trial counsel’s ineffective
assistance led him to reject the government’s offer of a lower sentence than was imposed by the
court, “the Strickland prejudice test requires a defendant to show a reasonable possibility that the
outcome of the plea process would have been different with competent advice. Miller v. United
States, 561 F.App’x. 485, 495-96 (2014).
In these circumstances a defendant must show that but for the ineffective advice
of counsel there is a reasonable probability that the plea offer would have been
presented to the court (i.e., that the defendant would have accepted the plea and
the prosecution would not have withdrawn it in light of intervening
circumstances), that the court would have accepted its terms, and that the
conviction or sentence, or both, under the offer’s terms would have been less
severe than under the judgment and sentence that in fact were imposed.
8
Lafler v. Cooper, 566 U.S. 156, 163–64 (2012).
The movant has not offered any evidence to suggest that he would have accepted the
government’s offer. Nor does he state that he would have accepted the government’s offer
anywhere in his briefing. 2 Moreover, even if the movant had accepted the government’s offer,
the movant has failed to offer any evidence that the court would have accepted the 180-month
sentence. As was made plain during the sentencing hearing, the court believed that the movant’s
culpability was significant and was not comparable to the culpability of other co-defendants.
The court noted that, unlike some of his co-defendants who obtained lighter sentences, the
movant did not “just engage[ ] in drugs.” (ECF No. 1137 at Page ID# 7321.) Additionally, the
court noted that those other defendants’ sentences reflected the fact that they were “not talking
about trying to kill somebody.” (Id. at 7318.) Further, the court stated:
[T]his is a very serious matter. This was a defendant who was, essentially, the
leader of the Middle Tennessee drug conspiracy. There were hundreds of kilos of
drugs that were being transported through the Middle District and elsewhere.
There was a significant money laundering scheme in connection with this. On top
of that there were threats to kill two witnesses, two critical witnesses in this case.
In addition, the Court is disturbed that, even the defendant acknowledges that the
government warned him about the discussion and threats about one witness, but
the discussion continued and, in fact, involved a second witness.
(ECF No. 1137 at Page ID# 7328.) Moreover, in rejecting counsel’s argument that the movant
should be sentenced to 10 to 12 years, a sentence closer to those of some of the movant’s codefendants, the court stated: “[I]t really wouldn’t reflect what he did.” (Id. at Page ID# 7321.)
As such, the evidence before the court contradicts the movant’s argument that, if his counsel had
advised him to accept the 180-month sentence, the court would also have accepted it.
Accordingly, even if counsel had recommended that the movant reject the government’s
offer to recommend a 180-month sentence, the movant has not established that he was
2
Indeed, even in his briefing, the movant argues that, if everything had gone his way, he would
have been sentenced to 162 months. (Case No. 3:17-cv-1019, ECF No. 1 at Page ID# 11.)
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prejudiced. Consequently, the movant has not established that he is entitled to relief. 3
2.
Failure to Investigate and Inform on Money Laundering Enhancement
The movant argues that Mr. Arnkoff was ineffective for failing to explain to him that
pleading to the money laundering charge would result in a 2-level sentencing enhancement under
U.S.S.G. Section 2S1.1(b)(2)(B).
The government argues that, even if Mr. Arnkoff were
deficient, the movant was not prejudiced.
As noted above, to establish ineffective assistance of counsel, the movant must
demonstrate that counsel was deficient and that counsel’s deficiency was prejudicial. Strickland,
466 U.S. at 687-88. To show prejudice, the movant must establish that the outcome of the plea
process would have been different with competent advice. See Miller, 561 F.App’x. at 495-96.
In his declaration, Mr. Arnkoff explains:
Regarding Mr. Syed’s claim he was not advised his guideline range would be
impacted by his guilty plea to the money laundering count I would say he has a
faulty recollection of events. Prior to the plea I went over the plea agreement with
him at length and explained the Government was requiring he plead to the money
laundering count as well as the conspiracy count in the Indictment. Based on my
experience, my research and my review of the significant amount of discovery
provided by the Government, I was convinced the government could meet its
burden at a trial of proving Mr. Syed guilty of the offense. When reviewing the
PSR with Mr. Syed in preparation for sentencing I went over each page of the
PSR with him line-by-line and word-by-word. Judge Haynes always demanded
defense counsel conduct themselves in that manner and when Mr. Syed was asked
that question at sentencing he responded to the Judge he has gone over the PSR
with me in that manner. The PSR clearly reflected a 2 level increase and I
explained that to Mr. Syed. Since Mr. Syed’s guideline range was still at life with
or without the money laundering conviction I did not feel it was an issue that
required an inordinate amount of discussion.
(Case No. 3:17-cv-1019, ECF No. 10-1 at Page ID# 56.) Given the movant’s statements at this
3
It bears noting that, even where the government recommended a specific sentence, the court
was not likely to accept the recommendation if it did not believe that the sentence reflected the
defendant’s behavior. For example, as Mr. Arnkoff notes in his declaration, the government
recommended that the movant’s co-defendant, Juana Villareal, receive a 15-year sentence, but
the court imposed a 20-year sentence. (Case No. 3:17-cv-1019, ECF No. 10-1 at Page ID# 56.)
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change of plea hearing, which support Mr. Arnkoff’s version of events, the court finds that
counsel did not fail to advise him that he would be subject to a 2-level enhancement for pleading
guilty to money laundering.
Nevertheless, even assuming that counsel’s performance was
ineffective, the movant must, but has failed to, establish prejudice.
The movant argues that his base offense level of 36 was increased 2 points for
obstruction of justice, 2 points for a firearm enhancement, 2 points for money laundering and 4
points for having a leadership role in the crime, resulting in an offense level of 46 points. The
movant argues that, if he had not pleaded guilty to the money laundering charge, his offense
level would have been 41, after taking off the 2-level enhancement for money laundering and
including the 3-point reduction for acceptance of responsibility. The movant notes that an
offense level of 41 results in a guidelines range of 324-405 months, rather than the life sentence
that the movant faced. From this fact, the movant than argues that the court would likely have
used the bottom of the sentencing range, 324 months, as a baseline and from that baseline would
have reduced his sentence to 162 months in connection with the government’s request for a
downward departure. The movant’s argument is based entirely on conjecture about what the
government might have done and what the court might have done, if he had not pleaded guilty to
the money laundering charge. Such conjecture does not establish prejudice.
First, and most importantly, nowhere does the movant suggest that, if he had known that
the money laundering charge would have resulted in a 2-level enhancement, he would have
rejected the plea offer and insisted on going to trial. See Hill, 474 U.S. at 59. (noting that, “in
order to satisfy the ‘prejudice’ requirement, the defendant must show 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.”) On this basis alone, the movant’s claim of ineffective assistance of
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counsel must be rejected.
Second, there is no evidence to suggest that the plea process would have moved forward
unchanged, if the movant had not pleaded guilty to the money laundering charge, a basic
assumption of the movant’s argument. In his Motion, the movant notes that he was aware that
the plea agreement was grounded, at least in part, on his guilty plea to the money laundering
charge. The movant explains that, if he pleaded guilty to the money laundering charge, the
government could then charge married co-defendants Villareal and Vela-Salinas with money
laundering, something the movant notes the government could not have done without the
movant’s plea. Under these circumstances, without the movant’s plea to money laundering, it is
likely that the plea process would have stopped in its tracks, or at minimum, any plea agreement
would have been rather different than the plea agreement that the parties eventually entered into.
Moreover, the evidence attached to the Motion also suggests that, without the movant’s plea to
money laundering, there would have been no plea agreement. See Case No. 3:17-cv-1019, ECF
No. 1 at Page ID# 19 (Assistant United States Attorney Hanafan stating, “I planned (and still
plan) to seek a superseding indictment which will charge [the movant] with money laundering.
As we discussed, I would expect he will plead to that count as well as part of our agreement.”);
see also id. at Page ID# 20 (AUSA Hanafan explaining that, “[b]ased on our discussions and my
expectation that he would plead to the pending conspiracy charge and impending money
laundering charge, I had not planned to seek any additional charges against Mr. Syed.”)
Third, while “[a] criminal defendant has a right to expect at least that his attorney will . . .
explain the sentencing exposure the defendant will face as a consequence of exercising each of
the options available” Smith v. United States, 348 F.3d 545, 553, an erroneous sentencing
guideline prediction does not, by itself, justify setting aside a guilty plea, United States v. Hicks,
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4 F.3d 1358, 1363 n.3 (6th Cir. 1993) (citing United States v. Stephens, 906 F.2d 251, 254 (6th
Cit. 1990).) For example, in Thompson v. United States, the Sixth Circuit held that the deistrict
court erred in not holding an evidentiary hearing regarding the movant’s ineffective-assistancein-plea-negotiations claim, where counsel failed to advise the movant that a dispute regarding
shots fired during a police chase could result in a significant enhancement of the movant’s
guideline estimate. 4 Thompson, No. 16-6531, 2018 WL 1517190, at *4 (6th Cir. Mar. 28, 2018).
By contrast, in Moore v. United States, 676 F.App’x 383, 385-87 (6th Cir. Jan. 13, 2017), the
court held that the movant had failed to establish prejudice where he alleged that counsel failed
to accurately inform him of his minimum and maximum sentence, which were 5 and 40 years,
instead of 10 years and life as counsel had advised the movant. Id. The court found that counsel
was not ineffective where there was no reason to believe that the movant would have rejected the
plea offer of 140 months, if the movant had known that his sentencing exposure was 40 years
instead of life. Id. at 386. Here, the movant complains that his counsel failed to give him fully
accurate sentencing information, but like in Moore, the information allegedly omitted had no
meaningful impact on the reasonableness of his decision to plead guilty.
Moreover, at both the plea and sentencing hearing, the court explained the guideline
4
The Sixth Circuit noted that:
McAfee [the movant’s counsel] failed to recognize the extent to which the
potential adjustment for shots fired at an officer could result in a substantial
offense-level increase. In addition, although McAfee advised Thompson that he
could face a longer sentence if he engaged in a credibility contest with the
pursuing officer over how he aimed the rifle when the shots were fired, he did not
anticipate the loss of credit for acceptance of responsibility. Further, McAfee
erroneously estimated that Thompson’s past misconduct placed him in criminal
history category I rather than III. These three errors substantially account for the
difference between the estimated guidelines range and the range arrived at by the
district court.
Thompson, 2018 WL 1517190, at *4, n.3.
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range to which the movant was subject. At sentencing, the following colloquy took place:
COURT: Did you receive the Pre-Sentence Report prepared on May 9, 2013, and
revised on September 21 of 2015, the document I'm holding up?
THE DEFENDANT: Yes, sir.
THE COURT: Did you go over this document with your lawyer?
THE DEFENDANT: Yes, sir.
THE COURT: Page for page?
THE DEFENDANT: Yes, sir.
THE COURT: Line for line?
THE DEFENDANT: Yes, sir.
THE COURT: After doing that, is there any part of this document you do not
understand?
THE DEFENDANT: I understand.
THE COURT: Any part of this document you have any questions about?
THE DEFENDANT: No, sir.
THE COURT: Any part of this document that you feel you need the Court to
explain any further?
THE DEFENDANT: No, sir.
(ECF No. 1137 at Page ID## 7304-05.) The above colloquy establishes that the movant had
received and gone over the PSIR with his counsel (as counsel stated in his declaration) and knew
at that time that his guideline range included a 2-level enhancement for money laundering and
would result in a maximum sentence of life. Additionally, the movant was repeatedly advised by
his counsel that the court, and not the guidelines, would ultimately decide the movant’s sentence.
(See Case No. 17-cv-1019, ECF No. 1 at Page ID #21 (letter from counsel advising the movant,
“to stop worrying about your guidelines. They are what they are but they are not mandatory.
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We are going to show Judge Haynes they are significantly overstated in your case”); Id. at Page
ID# 25 (letter from counsel advising that “the Judge still has the ability to give you a sentence
below the statutory mandatory minimums”).
Finally, it is worth noting that, even if the movant had not been subject to the 2-level
enhancement for money laundering, and had fallen within the guideline range that he argues
would have applied to him—324-405 months—the movant was sentenced significantly below
that range.
Based on the foregoing the movant has failed to establish his entitlement to relief.
3.
Failure to Object to Firearm Enhancement
The movant argues that Mr. Arnkoff failed to argue at the sentencing hearing that there
were insufficient facts to support a 2-level firearm enhancement. Specifically, the movant argues
that his sentence would have been significantly lower without the firearm enhancement and that
the evidence did not support such an enhancement, so his counsel should have argued at
sentencing that the firearm enhancement was improper.
In his declaration, Mr. Arnkoff states:
Mr. Syed’s claim that I mistakenly failed to object to the 2 level firearm
enhancement in the PSR is not supported by the evidence in this case. As
previously mentioned I went over the PSR with him and addressed every issue
including the firearm issues. I explained to him that the wiretaps revealed
conversations between Mr. Syed and co-defendants about firearms; he was
carrying a firearm when he was arrested, and I believe there was video
surveillance that also confirmed firearm possession. Mr. Syed had difficulty
comprehending that having a permit to carry a firearm did not exculpate him from
this enhancement. The state of facts in the plea agreement, which the Probation
Department relies on in preparing the PSR, clearly mentions the wiretap
conversations with co-defendant about firearms. Mr. Syed heard the statement of
facts presented at his change of plea hearing and when asked by Judge Haynes if
they were true and accurate he responded that they were.
(Case No. 3:17-cv-1019, ECF No. 10-1 at Page ID# 56.) The movant fails to offer any evidence
15
to contradict Mr. Arnkoff’s declaration. Moreover, the movant does not suggest that he would
have rejected the plea agreement and would have insisted on going to trial if he had known that
there were insufficient facts to support the firearm enhancement. Hill, 474 U.S. at 59.
Even if Mr. Arnkoff failed to fully investigate the firearm enhancement before
recommending that the movant accept the enhancement as part of the plea agreement, the
movant did not object to, and affirmatively adopted, the Government’s recitation of facts
contained in the plea agreement that established the firearm enhancement. He agreed that the
facts set forth in the plea agreement were true and accurate and that he had nothing to add. (ECF
No. 1125 at Page ID## 7190-93) 5 Having admitted in open court that the facts underlying his
conviction were true and accurate, the movant cannot now repudiate these admissions. See
Brady v. United States, 397 U.S. 742, 757, 90 S. Ct. 1463, 1474, 25 L. Ed. 2d 747 (1970)
(holding that “[w]e find no requirement in the Constitution that a defendant must be permitted to
disown his solemn admissions in open court that he committed the act with which he is charged
simply because it later develops that the State would have had a weaker case than the defendant
had thought. . . .”) As such, Mr. Arnkoff cannot have been deficient for failing to argue at the
plea hearing that there was an insufficient factual basis for the firearm enhancement.
V.
CONCLUSION
For the reasons set forth herein, the § 2255 motion will be denied. An appropriate order
will enter.
ENTER this 22nd day of May 2018.
ALETA A. TRAUGER
UNITED STATES DISTRICT JUDGE
5
The court does not quote from the plea hearing because the transcript to that hearing remains
under seal.
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