United States v. Shah (263 F. Supp. 2d 10, 2003)

MEMORANDUM OPINION

LAMBERTH, District Judge.

This case comes before the Court on Defendant Shah’s memorandum in aid of sentencing [638], defendant’s objections to the presentence report [655], and the government’s response [665]; deféndant’s omnibus motion for sentencing under 18 U.S.C. § 3355(f) [654]; and defendant’s motion for leave to withdraw guilty plea [639], the government’s omnibus response [662], and defendant’s reply [667].

I. Background

Shah is one defendant of many in the multinational drug importation and distribution conspiracy charged in this case. The Court presided over two trials of various co-defendants, the first from October 1999 to January 2000 and the second from October to November of 2000, which resulted in convictions and lengthy sentences. Shah pled guilty before the first trial and entered into a cooperation agreement with the government. Two of the relevant terms of the agreement were that Shah was to cooperate “truthfully, completely, and forthrightly” with the government, Plea Agr. ¶ 6(a), and that Shah agreed “not to commit any criminal violation of local, state or federal law” while cooperating, id. ¶ 6(e). While incarcerated in the D.C. Jail during the period of his cooperation, Shah approached a fellow inmate to arrange for drug importation and distribution through a Nepalese heroin. supplier, to be effected by non-incarcerated associates of Shah and the fellow inmate. Shah had denied knowing this supplier during his FBI debriefings. Unbeknownst to Shah, the fellow inmate was cooperating with the government, and taped several conversations between.Shah and his associates. Because of this conduct and its effect on Shah’s- credibility, the government determined not to call him as a witness in the second trial in this case. The government also determined that Shah had breached his plea agreement both in attempting to violate the law by seeking to arrange a drug deal, and in not responding fully and truthfully to FBI inquiries regarding the Nepalese supplier. Thus, the Departure Committee at the United States Attorney’s office decided not to issue a departure letter for Shah.

Upon realizing that he is subject to a lengthy sentence that will reflect the criminal activity to which he had admitted in the course of his cooperation, rather than the fraction of that sentence defendant hoped would be imposed based on a government departure motion, defendant cries “Foul.” Defendant takes a bifurcated approach in seeking to reduce his sentencing exposure. Shah seeks first and foremost to withdraw his plea of guilty. The Court takes note of the Plea Agreement’s numerous exhortations that defendant may not withdraw his plea. Plea Agr. ¶ 6(e) (no withdrawal for defendant’s breach); ¶ 7 (no withdrawal for government decision not to file 5K1.1 departure letter); ¶ 12 (no withdrawal for harshness of sentence imposed). Failing withdrawal, defendant advances myriad arguments opposing the Guidelines calculation presented in the Presentence Investigation Report (PSR) and seeks departure on various grounds.

Defendant pled guilty and agreed to cooperate with the government, and for this cooperation expected to receive a sentence less than 63-78 months. Shah Affidavit attached to Motion to Withdraw Guilty Plea [639] ¶ 11. Defendant believes he is entitled to a lenient sentence, period. Upon a determination that Shah did not keep the commitments he made in the plea agreement, the government declined to file a motion for departure for substantial assistance under § 5K1.1 of the Guidelines. Shah is now facing a sentence of 292 to 340 months based on his Guidelines offense level. Defendant seeks the benefit of his bargain, creatively urging various methods through which the Court can reward him where the government did not. This the Court declines to do.

II. Plea Withdrawal

The most serious and viable claim presented by Shah that he should be permitted to withdraw his guilty plea is an allegation of ineffective assistance of counsel during plea negotiations and at the plea colloquy. All Shah’s arguments hinge on the validity of the plea agreement and the conduct of the plea colloquy. The PSR is based on the government’s proffer of evidence at the plea hearing, which in turn was based on Shah’s own admissions. If the plea agreement, and thereby the government’s proffer, and the hearing at which the plea was accepted were valid, defendant cannot be heard to complain about the inclusion of facts to which he admitted in the Guidelines calculation. See, e.g., United States v. Leachman, 309 F.3d 377, 383-84 (6th Cir.2002) (by pleading guilty defendant waived the right to have sentencing factors, including the amount of drugs, proven to a jury beyond a reasonable doubt). Likewise, if the plea agreement, proffer, and colloquy were valid, Defendant has no legitimate basis for withdrawing his plea.

A. Standards for Plea Withdrawal

A Court may permit a defendant to withdraw a plea of guilty if it is “fair and just” to do so. United States v. Barker, 514 F.2d 208, 219 (D.C.Cir.1975). Withdrawal is to be liberally granted, but it is not a matter of right. United States v. Ford, 993 F.2d 249, 251 (D.C.Cir.1993). The D.C. Circuit revisited the issue of plea withdrawal in United States v. Cray, 47 F.3d 1203 (D.C.Cir.1995). It promulgated a three-part inquiry for examining the propriety of permitting a defendant to withdraw a guilty plea:

First, a defendant generally must make out a legally cognizable defense to the charge against him. Second, and most important, the defendant must show either an error in the taking of his plea or some “more substantial” reason he failed to press his case rather than plead guilty. Finally, if those two factors warrant, the court may then inquire whether the Government would have been substantially prejudiced by the delay in going to trial.

Id. at 1207. A defendant cannot satisfy the first factor-a claim of legal innocence-by a mere general denial, “he must affirmatively advance an objectively reasonable argument that he is innocent.” Id. at 1209. Furthermore, “[i]f the movant’s factual contentions, when accepted as true, make out no legally cognizable defense to the charges, he has not effectively denied his culpability, and his withdrawal motion need not be granted.” Barker, 514 F.2d at 220.

To highlight its emphasis on the second factor, the Court noted that “a defendant who fails to show some error under Rule 11 has to shoulder an extremely heavy burden if he is ultimately to prevail.” Cray, 47 F.3d at 1208. It observed, “we have never held that a district court abused its discretion in denying a motion to withdraw a guilty plea where the defendant failed to show some defect in the taking of his plea under Rule 11.” Id. at 1207. If the plea colloquy was not conducted in “substantial compliance” with Rule 11, the defendant should “almost always” be permitted to withdraw the plea. United States v. Ford, 993 F.2d 249, 251 (D.C.Cir.1993). For instance, the record of the plea colloquy must lead a reasonable person to believe that the defendant understood the nature of the charge, such as through a judicial recitation of the material details of the charge. United States v. Ahn, 231 F.3d 26, 33, 35 (D.C.Cir.2000). An understanding of the crime to which a defendant is admitting guilt is a “core consideration” of Rule 11. Ford, 993 F.2d at 253. Where the defect in the plea is not one that would appear on the record, an evidentiary hearing may be appropriate. Cray, 47 F.3d at 1208-09.

B. Shah’s Plea

The most important issue with regard to Shah’s plea withdrawal motion, then, is whether the Rule 11 plea colloquy was properly conducted. If it was, Shah must “shoulder an extremely heavy burden if he is ultimately to prevail.” United States v. Cray, 47 F.3d 1203, 1208 (D.C.Cir.1995). Federal Rule of Criminal Procedure 11 sets out various safeguards to ensure that a guilty plea is entered intelligently and voluntarily. The Court in this case complied with all those requirements, including: informing defendant of the nature of the charge (R. 11(c)(1)), Tr. at 5-7; the minimum and maximum penalties (R. 11(c)(1)), Tr. at 7; the possibility of Guidelines departure (R. 11(c)(1)), Tr. at 8-9; the right to plead not guilty, go to trial by jury with assistance of counsel with confrontation and cross-examination of witnesses and Fifth Amendment right not to testify (R. 11(c)(3)), Tr. at 3^1; that a guilty plea means no trial will be had (R. 11(c)(4)), Tr. at 4; that a defendant’s statements at the plea colloquy may be used in a perjury or false statement prosecution (R. 11(c)(5)), Tr. at 2-3; ascertaining that the plea was voluntary and not the result of force or threats (R. 11(d)), Tr. at 9; accepting the plea agreement in open court (R. 11(e)(2)), Tr. at 2, 9-11; and inquiring into the factual basis for the plea (R. 11(f)), Tr. at 11-12. The Court was fully solicitous of defendant, inquiring “Has anyone made any prediction or promise as to what sentence I’ll give you in this ease,” to which Shah answered no, Tr. at 11, asking if he was satisfied with former counsel’s representation of him, to which Shah answered yes, Tr. at 3, and giving the defendant an opportunity to raise any other concerns he might have, Tr. at 12.

As in Cray, Shah admitted to each element of the crimes charged, Tr. at 6-7,11-12, fully agreed with the government’s proffer, Tr. at 11-12, confirmed that he had not been threatened or coerced, Tr. at 9, and affirmatively answered the Court’s questions after being told that they were posed to ascertain that the plea was entered voluntarily, Tr. at 2-5, 12-13. Cray, 47 F.3d at 1205. Unlike in Ford, here the Court explained the nature of the charges against Shah by reading the information, Tr. at 5-7, and established the factual basis by accepting the government’s proffer and ascertaining that Shah had read it and his signature on the bottom was genuine, Tr. at 11-12. United States v. Ford, 993 F.2d 249, 252 (D.C.Cir.1993). Furthermore, the government specifically stated on the record that the plea agreement provided that Shah accepted responsibility for the death of Raymond Cruz and for 10 to 30 kilograms of heroin. Tr. at 10. Shah did not contradict these representations. This examination of the transcript reveals that “[tjhere is simply no room in this record for doubt that [defendant’s] guilty plea was attended by all the required procedural safeguards.” Cray, 47 F.3d at 1208.

C. Ineffective Assistance of Counsel

Attached to his motion to withdraw his plea [639] was Shah’s affidavit, as well as that of his former attorney. Shah argues that his former attorney provided ineffective assistance of counsel, thus entitling him to withdraw his plea. To make out a claim of ineffective assistance of counsel sufficient to withdraw a guilty plea, a defendant must show that counsel’s performance was deficient, and that the deficiency prejudiced the defendant. Cf. Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (discussing standards for overturning results of trial). Shah alleges several areas in which former counsel was deficient: by failing to investigate, by telling Shah not to worry about the alleged drug quantity overreaching in the government’s proffer at the plea hearing, by permitting Shah to be debriefed without the presence of his counsel, and by permitting Shah to plead despite knowing of the existence of an unspecified “meritorious defense.”

Counsel is deficient if the representation falls below an objective standard of reasonably effective assistance. Strickland, 466 U.S. at 687-88, 104 S.Ct. 2052. The errors made by counsel must be “so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. at 687, 104 S.Ct. 2052. Even if this stringent standard is met, the defendant must prove prejudice. This means that “there is a ‘reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ ” United States v. Gaviria, 116 F.3d 1498, 1512 (D.C.Cir.1997). In the plea context, this means 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.” Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985).

1. Failure to Investigate

Shah urges that former counsel’s failure to investigate the offense constitutes ineffective assistance of counsel. Counsel generally has a duty to investigate a case if necessary; in the context of a guilty plea this is because to effectively advise a client requires familiarity with the facts. Herring v. Estelle, 491 F.2d 125, 128 n. 6 (5th Cir.1974) (“ ‘Effective counsel includes familiarity of counsel with the case and an opportunity to investigate it if necessary in order meaningfully to advise the accused of his options.’ ” (emphasis added) (citation omitted)). However, the need to investigate can be obviated where, for instance, the defendant can supply all the information needed. Strickland, 466 U.S. at 691, 104 S.Ct. 2052 (“For example, when the facts that support a certain potential line of defense are generally known to counsel because of what the defendant has said, the need for further investigation may be considerably diminished or eliminated altogether.”). In this case, the defendant pled guilty and supplied the government (and presumably counsel) with all the information relevant to his case. Unless counsel must presume that a client is lying, independent investigation is not generally necessary in such a situation. Thus, counsel’s failure to investigate the case beyond the facts supplied to him (and the government and ultimately to the Court) by his client was not so below the par for representation as to “undermine! ] the proper functioning of the adversarial process.” Strickland, 466 U.S. at 686, 104 S.Ct. 2052.

While it was not perhaps best practice for an attorney representing a client charged with possession of a controlled substance on the scale seen here not to investigate the charges independently, it did not fall below an objective standard of reasonableness. This is further supported by Strickland’s rule that counsel’s decisions must be evaluated as of the time they were made. Id. at 690, 104 S.Ct. 2052. When counsel was advising Shah to cooperate and plead, all parties anticipated that Shah would fully and truthfully cooperate with the government, refrain from breaking laws while cooperating, and otherwise comply with the terms of the plea agreement. For his cooperation, all parties anticipated that Shah would receive a downward departure under 5K1.1. Once a Court grants a 5K1.1 motion, the Court is free to impose any sentence that is fitting, and thus any disparity between the amount of drugs Shah now insists he distributed and the amount he previously informed the government he had distributed would not carry the same weight it carries in the Guidelines scheme. Thus, as a practical matter, counsel reasonably made the tactical decision not to enter into an extensive investigation to flesh out this disparity. Counsel had no way of knowing that Shah would breach his agreement, thus exposing himself to the Guidelines range he faces today.

Even if the failure to investigate was an objectively unreasonable trial strategy by former counsel, defendant has not proven prejudice.