Free Response to Motion - District Court of Arizona - Arizona

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DIANE J. HUMETEWA United States Attorney District of Arizona JOHN BOYLE Assistant U.S. Attorney Arizona State Bar No. 015640 Two Renaissance Square 40 North Central Avenue, Suite 1200 Phoenix, Arizona 85004 Telephone: (602) 514-7500 [email protected]

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America, Plaintiff-Respondent, v. Michael Craig Anderson Defendant-Movant. The United States of America, by and through undersigned counsel, hereby opposes defendant Michael Craig Anderson's Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 for the reasons set forth in the attached Memorandum of Points and Authorities. Respectfully submitted this 6th day of March, 2008. DIANE J. HUMETEWA United States Attorney District of Arizona s/ John Boyle JOHN BOYLE Assistant U.S. Attorney CR-04-1281-PHX-DGC CV-04-1947-PHX-DGC (LOA) RESPONSE IN OPPOSITION TO MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE PURSUANT TO 28 U.S.C. § 2255

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MEMORANDUM OF POINTS AND AUTHORITIES I. Issues Presented

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Defendant claims that defense counsel was ineffective in that (1) defense counsel failed
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to object to the inclusion of 792 pounds of marijuana in the calculation of the base offense level;
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and, (2) defendant did not receive the 60-month sentence of imprisonment his attorney allegedly
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promised would be defendant's final sentence. (Defendant's Motion at 5.)
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II.
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Procedural History On March 3, 2006, pursuant to a written plea agreement, defendant pled guilty to the

offenses of Receiving a Bribe by a Public Official (Count 2), Conspiracy to Import More than
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1000 Kilograms of Marijuana (Count 4), Money Laundering (Count Six), and Filing a False Tax
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Return (Count 8). (Exhibit A "Plea Agreement" at 1-2.) Pursuant to Rule 11(c)(1)(C) of the
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Federal Rules of Criminal Procedure, the government and the defendant agreed that the
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defendant would receive a sentence between 60 and 108 months imprisonment. (Exhibit A at
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4.) Pursuant to Rule 11(c)(1)(B) of the Federal Rules of Criminal Procedure, the government
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agreed to recommend a three-level reduction for "Acceptance of Responsibility" and a two-level
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decrease for "Safety Valve." (Exhibit A at 4.)
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At sentencing on October 11, 2006, defendant's counsel moved to amend Count 4 of the
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plea agreement, requesting the date be changed from April 2001 to November and December,
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2000. (RT 10/11/06 3-5.) The Court denied the request, and denied a subsequent request to
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withdraw from the plea agreement. (RT 10/11/06 8.) Neither party made substantive guideline
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objections to the presentence report (PSR). (RT 10/11/06 10-11.) The Court adopted the
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calculations of the PSR and determined the defendant had a Total Offense Level 31 and Criminal
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History Category I, resulting in an advisory guideline range of 108-135 months. ( RT 10/11/06
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11-12.) The Court sentenced the defendant to 108 months imprisonment on Counts 2,4, and 6;
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36 months on Count 8; and, terms of supervised release to follow. (RT 10/11/06 29.) Defendant did not file an appeal, however, on October 12, 2007 defendant's § 2255 motion was filed. The United States was served with a copy of this motion on January 7, 2008. III. Analysis A. Defendant's motion is timely. The Anti-Terrorism and Effective Death Penalty Act ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214, became effective on April 24, 1996. It established both procedural and substantive limits on the filing of motions for collateral relief by prisoners under 28 U.S.C. § 2255. Particularly, in section 105 of AEDPA, Congress established a one-year period of limitations for such motions. The defendant did not file a Notice of Appeal. The defendant filed his motion within one year of the date upon which his conviction became final, defendant's motion is therefore timely.
B. Defendant has waived his right to collaterally attack his sentence.

Defendant requests this Court reduce his sentence to 60 months imprisonment. (Defendant's Motion at 13.) Pursuant to his written plea agreement, defendant specifically waived any right to appeal or collaterally attack the court's imposition of sentence upon him. (Exhibit A at 5.) A defendant may specifically waive the statutory right to file a § 2255 motion. United States v. Abarca, 985 F.2d 1012, 1014 (9th Cir. 1993). A review of the written plea agreement establishes that, with the assistance of counsel, the defendant had read and understood the provisions of the plea agreement; had been advised of the nature of the charges against him, his constitutional rights, and sentencing possibilities; entered his guilty plea without force, threats, assurances or promises not contained within the agreement; and finally, that he was satisfied that his attorney had represented him in a competent manner. (Exhibit A at 9-11.) A review of the transcript of the plea proceedings of March 3, 2006 establishes that the plea proceedings were conducted in full compliance with Rule 11, Fed. R. Crim. P. (RT 3/3/06 1-38.) Prior to entering his plea, defendant specifically stated to the court that he was satisfied with the representation provided by his attorney, that all of his questions had been answered and
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that he had received sufficient time to fully and completely discuss his case with his attorney. (RT 3/3/06 16-17.) Defendant acknowledged that he had been advised by his attorney about the sentencing guidelines, that every provision of the plea agreement had been read and explained to him, that the written plea agreement contained all of the promises or assurances made to him, and that he agreed to the terms. (RT 3/3/06 16-19.) He does not contest the validity of his convictions. Defendant does not deny he voluntarily waived his right to collaterally attack his sentence. Accordingly, defendant has knowingly, intelligently and voluntarily entered into a plea agreement and waived his rights. It is appropriate for a court to examine the plain language of a waiver to determine its scope. United States v. Baramdyka, 95 F.3d 840, 843 (9th Cir. 1996); See e.g., United States v. Johnson, 67 F.3d 200 (9th Cir. 1995). In determining whether a plea agreement waives the right to appeal or collaterally attack a judgment and sentence, courts apply contract principles, including the parol evidence rule, to examine and enforce the plain language of the contract, or plea agreement, and do not look to extrinsic evidence to interpret the terms of an unambiguous written instrument. United States v. Nunez, 223 F.3d 956, 958 (9th Cir. 2000)(citing Wilson Arlington Co. v. Prudential Ins. Co. of Am., 912 F.2d 366, 370 (9th Cir. 1990)). Defendant's plea agreement contained a broad and unambiguous waiver of his appeal rights. Specifically, defendant agreed to the following: Waiver of Defenses and Appeal Rights.
The defendant waives any and all motions, defenses, probable cause determinations, and objections which the defendant could assert to the information or indictment or to the court's entry of judgment against the defendant and imposition of sentence upon the defendant, provided that the sentence is consistent with this agreement. The defendant further waives: (1) any right to appeal the court's entry of judgment against defendant; (2) any right to appeal the imposition of sentence upon defendant under 18 U.S.C.§3742 (sentence appeals); and (3) any right to collaterally attack defendant's conviction and sentence under 28 U.S.C.§2255, or any other collateral attack. (CR 22; Exhibit B at 5.)

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When a defendant waives his statutory right to appeal or collaterally attack his sentence,
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he also implicitly waives his right to argue ineffective assistance of counsel regarding
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sentencing issues, because a challenge that claims ineffective assistance of counsel at sentencing is still a challenge to the sentence. United States v. Nunez, 223 F.3d 956, 959 (9th Cir. 2000). Defendant does not allege, nor do the facts suggest, that the sentence imposed was not in accord with his plea agreement. Defendant's express waiver therefore should be enforced and this motion dismissed. United States v. Baramdyka, 95 F.3d 840, 843 (9th Cir. 1996); United States v. Bolinger, 940 F.2d 478, 480 (9th Cir. 1991). C. Defendant has failed to establish ineffective assistance of counsel. It is the government's position that defendant's motion should be dismissed without reaching the merits as set forth in section B above. However, in the event this court should consider the merits of defendant's motion, it must still fail. To prevail on a claim of ineffective assistance, a defendant must show both that his counsel's performance was deficient and that this prejudiced his case. Strickland v. Washington, 466 U.S. 668, 688 (1984). In reviewing defense counsel's performance, a court must "strongly presume that counsel's conduct was within the wide-range of reasonable assistance, and that he exercised acceptable professional judgment in all significant decisions made." Strickland, 466 U.S. at 689. Defendant claims that defense counsel was ineffective in that (1) defense counsel failed to object to the inclusion of 792 pounds of marijuana in the calculation of the base offense level; and, (2) defendant did not receive the 60-month sentence of imprisonment his attorney allegedly promised would be defendant's final sentence. 1. The inclusion of 792 pounds of marijuana did not affect the defendant's Base Offense Level. The defendant asserts his counsel was ineffective for failing to object to the Court's inclusion of 792 pounds of marijuana when the Base Offense Level was calculated. (Defendant's Motion at 4.)This marijuana is referenced in Paragraph Seven of the PSR. This marijuana was not included in the defendant's drug calculation. The Base Offense Level was based solely upon 5 kilograms of cocaine and the 1000+ kilograms of marijuana admitted in the factual basis. Moreover, the defendant's Base Offense Level was 32. The amount of marijuana (or marijuana
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equivalent) for this level is 1000 kilograms to 3000 kilograms. In the factual basis of the plea agreement, the defendant admitted the "amount of marijuana imported into the United States was in excess of 1000 kilograms." (Attachment A at 9.) Whether the Court included or excluded the 792 pounds of marijuana would have had no bearing on the defendant's sentencing range. Defendant's counsel was not ineffective in this regard. 2. The record does not support defendant's claim to a secret promise of 60 months imprisonment. The defendant's plea agreement states that in "determining sentence in this case, pursuant to Fed. R. Crim P. 11(c)(1)(CC), the parties stipulate that the defendant shall be sentenced to a term of imprisonment between 60 and 108 months." (Exhibit A at 4.) The defendant received a sentence within the range stipulated within the plea agreement. The plea also states that: I agree that this written plea agreement contains all the terms and conditions of my plea and that promises made by anyone (including my attorney), and specifically any predictions as to the guideline range applicable, that are not contained within this written plea agreement are without force and effect and are null and void. (Emphasis in Original.)(Exhibit A at 10.) The defendant entered into this plea agreement knowing there could be no unwritten promises from his attorney. At the defendant's change of plea before the Honorable David G. Campbell, the defendant agreed there were no unwritten promises in this case. THE COURT: Does the agreement contain everything that you and the government have agreed to in this case? THE DEFENDANT: Yes, sir, it does. THE COURT: Have any promises been made to you or commitments made that are not contained in the plea agreement? THE DEFENDANT: No, sir. THE COURT: Other than the plea agreement, has there been any promise made to you about what your final sentence will be? THE DEFENDANT: No, sir.
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(RT 3/3/06 17.) The defendant avowed to the Court under oath that there were no unwritten promises in this case. Specifically, the defendant avowed under oath there were no promises regarding his final sentence. The Court returned to this issue later in the change of plea. THE COURT: Do you understand, Mr. Anderson, that neither your attorney, the government's attorney, nor I can tell you today what your sentence will be? THE DEFENDANT: Yes, sir. THE COURT: Do you understand that if the sentence turns out to be different than you expect, you will still be bound by your guilty plea if the sentenced is consistent with the plea agreement? THE DEFENDANT: Yes, sir. (RT 3/3/06 26.) At sentencing, the defendant addressed the Court. He made several statements to the Court, including one that addressed the sentencing range. THE DEFENDANT: When I took my plea, I was under the assumption that it was from 60 to 108 months and that the government was going to recommend I get the low end. To me that's 60 months. (RT 10/11/06 18.)1 The defendant made the following statement at the conclusion of the sentencing hearing. THE DEFENDANT: What happened to the 60 months I was told? THE COURT: I'm sorry?

The government did recommend the low end, but it recommended the low end of the advisory guideline range, not the low of the plea agreement range. There are no agreements 26 regarding recommendations in the plea agreement, and the government was free to recommend any sentence within the stipulated range of 60-108 months. Regardless, the Court was not 27 obligated to follow a recommendation.
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THE DEFENDANT: I was told 60 months, sir. I just don't ­ MR. LOCKHART: I'll talk to him, Your Honor. THE DEFENDANT: I don't understand. THE COURT: Well, Mr. Anderson, I understand that you are disappointed with the sentence. The sentence is consistent with the plea agreement. It's in my opinion the appropriate sentence given the crimes.... (RT 10/11/06 33.) The plea agreement, change of plea hearing, and sentencing proceedings do not support the defendant's claim of a secret promise to 60 months imprisonment. The defendant's own statement at sentencing confirms his knowledge that his sentence would be between 60 and 108 months. The defendant's statements in open court under oath carry a strong presumption of verity. Chua Han Mow v. United States, 730 F.2d 1308, 1311 (9th Cir.1984). 3. The defendant agreed any unwritten promises would be unenforceable and void. The defendant signed an agreement specifically precluding his ability to enter into a secret sentence. The defendant does not deny he knowingly and voluntarily entered into this provision of his plea agreement. As noted above, the defendant signed a plea and agreed that any promises "that are not contained within this written plea agreement are without force and effect and are null and void." (Emphasis in original.)(Exhibit A at 10.) He should be held to the terms of this bargain. "Plea agreements are contractual in nature and are measured by contract law standards." United States v. Keller, 902 F.2d 1391, 1393 (9th Cir.1990).Therefore, even if he had a secret promise from his attorney, he agreed the promise would be unenforceable and void. The defendant is essentially requesting the court reward him for breaching the terms of his written plea agreement. This Court should decline that request. // // //
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IV. Conclusion For all of the foregoing reasons, the Motion of Michael Craig Anderson to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 should be denied and this action dismissed. Respectfully submitted this 6th day of March, 2008. DIANE J. HUMETEWA United States Attorney District of Arizona s/ John Boyle JOHN BOYLE Assistant U.S. Attorney

CERTIFICATE OF SERVICE BY MAIL 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 Michael Craig Anderson #64952-208 FPC - La Tuna P.O. Box 8000 Anthony, New Mexico 88021 I hereby certify that a copy of the foregoing was mailed in an envelope marked "Inmate's Legal Mail" this 6th day of March, 2008, to:

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