Guay v . USA 07-CV-282-SM 10/23/07 UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE
Kelly Guay
v. Civil N o . 07-cv-282-SM Opinion N o . 2007 DNH 130 United States of America
O R D E R
Petitioner, Kelly Guay, seeks relief from her sentence under
the provisions of 28 U.S.C. § 2255, claiming that defense counsel
provided constitutionally deficient representation, that she was
entrapped by police into committing the crimes of conviction, and
that her sentence was improperly based on the “100 to 1”
sentencing disparity between powder cocaine and crack cocaine
under the Sentencing Guidelines. Guay pled guilty to three
counts of distributing the controlled substance cocaine base or
“crack” cocaine, in violation of 21 U.S.C. § 841(a)(1).
Background
At her plea hearing, Guay stated under oath that she was
satisfied with the advice given her and legal representation
provided by her counsel. She also stated that she was pleading
guilty because she was in fact guilty. She confirmed the
accuracy of the government’s factual proffer (with one minor exception not relevant to guilt or innocence), and she stated
that, based upon her own knowledge of the facts of the case, she
was satisfied that entering guilty pleas rather than going to
trial was in her own best interest. Finally, Guay denied that
she was pleading guilty due to any threats or inducements, other
than the consideration detailed in the written plea agreement
filed with the court.
The facts to which she agreed, simplified, were that as part
of a drug investigation in Manchester, New Hampshire, a
confidential informant (later revealed as William Cyr, a former
boyfriend of defendant’s) identified Guay as someone who was
selling drugs for one of the targets of the investigation (a
Daniel Riendeau). The informant contacted Guay, who had recently
been released from a previous drug-related sentence, about buying
crack. Guay told the informant to meet her in Nashua, New
Hampshire. The informant and an undercover officer went to
Nashua, on July 2 6 , 2005, met Guay, and Guay delivered a quantity
of crack in exchange for $500. Guay told the undercover officer
to call her directly if the undercover officer needed anything
else. On July 2 8 , 2005, the undercover officer called Guay,
using a phone number she had given him, and arranged a meeting to
buy crack. They met later that day at a parking lot in
2 Manchester where, after a short wait, a person on a motorcycle
arrived. Guay approached the person, came back to the officer
and got $500 from him, and returned to the cyclist. They went
into a condominium complex and, after a few minutes, Guay came
out and handed the officer a baggie containing about six grams of
crack cocaine. On August 2 , 2005, the officer again called Guay
and arranged a sale at a local golf course parking lot. Once
again, Guay arrived and delivered approximately seven grams of
crack cocaine in exchange for $500.
Discussion
Guay claims, in general terms, that defense counsel provided
constitutionally deficient representation in that he did not meet
with her often enough, did not prepare adequately for sentencing,
and “refused” to allow her to go to trial even though she
“desperately” wished to do s o . She also implies that she wished
to testify at her sentencing hearing, but counsel did not
“inform” her of her opportunity to address the court.
Guay’s unspecific claims are entirely inconsistent with her
sworn statements at the plea hearing, which statements are
entitled to a presumption of truthfulness. Nothing in Guay’s
§ 2255 motion, or in the record, suggests any “credible, valid
3 reasons why a departure from those earlier contradictory
statements is now justified.” United States v . Butt, 731 F.2d
7 5 , 80 (1st Cir. 1984). I find that she has failed to overcome
the presumption of truthfulness of her own Rule 11 statements
during the plea colloquy.
The record belies Guay’s claims even apart from her own
sworn testimony. Counsel’s CJA reimbursement application
discloses more than adequate time devoted to Guay’s case; his
thoughtful sentencing preparation was evident from the detailed
and comprehensive (and successful) arguments made in support of a
non-guideline sentence to the lowest possible period of
incarceration — the statutory mandatory minimum sentence of 60
months in prison. (Guay, like many defendants, seems blissfully
oblivious to the fact that she could easily have been facing a
much more severe punishment had counsel been less effective, and
had the prosecutor taken steps to increase the mandatory
minimum.) The reality is that counsel could not have been more
effective with regard to sentencing — she received the minimum
possible sentence.
With regard to Guay’s “testifying” at sentencing, while
there was no issue requiring testimonial evidence, still, she not
4 only was advised of her right of allocution, but she invoked that
right and did address the court. She did not mention any of the
issues she now seeks to raise.
Guay’s sworn statements belie her general claim that she
wanted to go to trial but was forced by counsel in some
undisclosed manner to plead guilty. Moreover, that claim does
not appear to be rational — the charges to which she pled guilty
were based upon hand-to-hand sales of drugs by her to an
undercover officer; the plea agreement was a favorable one; and
she faced additional charges related to other drug sales. Her
choice to plead guilty was eminently reasonable (and beneficial)
under the circumstances; her current claim that she actually
wanted to go to trial is difficult to credit on any rational
basis. Again, claims that a guilty plea was induced by attorney
coercion or misrepresentation, in the § 2255 context, must be
“highly specific and usually accompanied by some independent
corroboration” before even a hearing is warranted, much less
relief granted. See Butt, 731 F.2d at 80 n.5; see also
Hernandez-Hernandez v . United States, 904 F.2d 7 5 8 , 762 (1st Cir.
1990). Guay’s claims are decidedly unspecific, vague,
uncorroborated, and contradicted by her own sworn statements and
the record.
5 Finally, to succeed on an ineffective assistance of counsel
claim involving a facially provident guilty plea, a defendant is
required to make two showings: (1) “that [her] counsel’s
challenged acts or omissions made counsel’s overall performance
fall ‘below an objective standard of reasonableness,’” United
States v . Giardino, 797 F.2d 3 0 , 31 (1st Cir. 1986) (citations
omitted); and (2) “‘a reasonable probability that, but for
counsel’s errors, [she] would not have pleaded guilty and would
have insisted on going to trial.’” Id. Petitioner fails on each
requirement.
Nothing suggests that counsel’s acts or omissions made his
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Guay v . USA 07-CV-282-SM 10/23/07 UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE
Kelly Guay
v. Civil N o . 07-cv-282-SM Opinion N o . 2007 DNH 130 United States of America
O R D E R
Petitioner, Kelly Guay, seeks relief from her sentence under
the provisions of 28 U.S.C. § 2255, claiming that defense counsel
provided constitutionally deficient representation, that she was
entrapped by police into committing the crimes of conviction, and
that her sentence was improperly based on the “100 to 1”
sentencing disparity between powder cocaine and crack cocaine
under the Sentencing Guidelines. Guay pled guilty to three
counts of distributing the controlled substance cocaine base or
“crack” cocaine, in violation of 21 U.S.C. § 841(a)(1).
Background
At her plea hearing, Guay stated under oath that she was
satisfied with the advice given her and legal representation
provided by her counsel. She also stated that she was pleading
guilty because she was in fact guilty. She confirmed the
accuracy of the government’s factual proffer (with one minor exception not relevant to guilt or innocence), and she stated
that, based upon her own knowledge of the facts of the case, she
was satisfied that entering guilty pleas rather than going to
trial was in her own best interest. Finally, Guay denied that
she was pleading guilty due to any threats or inducements, other
than the consideration detailed in the written plea agreement
filed with the court.
The facts to which she agreed, simplified, were that as part
of a drug investigation in Manchester, New Hampshire, a
confidential informant (later revealed as William Cyr, a former
boyfriend of defendant’s) identified Guay as someone who was
selling drugs for one of the targets of the investigation (a
Daniel Riendeau). The informant contacted Guay, who had recently
been released from a previous drug-related sentence, about buying
crack. Guay told the informant to meet her in Nashua, New
Hampshire. The informant and an undercover officer went to
Nashua, on July 2 6 , 2005, met Guay, and Guay delivered a quantity
of crack in exchange for $500. Guay told the undercover officer
to call her directly if the undercover officer needed anything
else. On July 2 8 , 2005, the undercover officer called Guay,
using a phone number she had given him, and arranged a meeting to
buy crack. They met later that day at a parking lot in
2 Manchester where, after a short wait, a person on a motorcycle
arrived. Guay approached the person, came back to the officer
and got $500 from him, and returned to the cyclist. They went
into a condominium complex and, after a few minutes, Guay came
out and handed the officer a baggie containing about six grams of
crack cocaine. On August 2 , 2005, the officer again called Guay
and arranged a sale at a local golf course parking lot. Once
again, Guay arrived and delivered approximately seven grams of
crack cocaine in exchange for $500.
Discussion
Guay claims, in general terms, that defense counsel provided
constitutionally deficient representation in that he did not meet
with her often enough, did not prepare adequately for sentencing,
and “refused” to allow her to go to trial even though she
“desperately” wished to do s o . She also implies that she wished
to testify at her sentencing hearing, but counsel did not
“inform” her of her opportunity to address the court.
Guay’s unspecific claims are entirely inconsistent with her
sworn statements at the plea hearing, which statements are
entitled to a presumption of truthfulness. Nothing in Guay’s
§ 2255 motion, or in the record, suggests any “credible, valid
3 reasons why a departure from those earlier contradictory
statements is now justified.” United States v . Butt, 731 F.2d
7 5 , 80 (1st Cir. 1984). I find that she has failed to overcome
the presumption of truthfulness of her own Rule 11 statements
during the plea colloquy.
The record belies Guay’s claims even apart from her own
sworn testimony. Counsel’s CJA reimbursement application
discloses more than adequate time devoted to Guay’s case; his
thoughtful sentencing preparation was evident from the detailed
and comprehensive (and successful) arguments made in support of a
non-guideline sentence to the lowest possible period of
incarceration — the statutory mandatory minimum sentence of 60
months in prison. (Guay, like many defendants, seems blissfully
oblivious to the fact that she could easily have been facing a
much more severe punishment had counsel been less effective, and
had the prosecutor taken steps to increase the mandatory
minimum.) The reality is that counsel could not have been more
effective with regard to sentencing — she received the minimum
possible sentence.
With regard to Guay’s “testifying” at sentencing, while
there was no issue requiring testimonial evidence, still, she not
4 only was advised of her right of allocution, but she invoked that
right and did address the court. She did not mention any of the
issues she now seeks to raise.
Guay’s sworn statements belie her general claim that she
wanted to go to trial but was forced by counsel in some
undisclosed manner to plead guilty. Moreover, that claim does
not appear to be rational — the charges to which she pled guilty
were based upon hand-to-hand sales of drugs by her to an
undercover officer; the plea agreement was a favorable one; and
she faced additional charges related to other drug sales. Her
choice to plead guilty was eminently reasonable (and beneficial)
under the circumstances; her current claim that she actually
wanted to go to trial is difficult to credit on any rational
basis. Again, claims that a guilty plea was induced by attorney
coercion or misrepresentation, in the § 2255 context, must be
“highly specific and usually accompanied by some independent
corroboration” before even a hearing is warranted, much less
relief granted. See Butt, 731 F.2d at 80 n.5; see also
Hernandez-Hernandez v . United States, 904 F.2d 7 5 8 , 762 (1st Cir.
1990). Guay’s claims are decidedly unspecific, vague,
uncorroborated, and contradicted by her own sworn statements and
the record.
5 Finally, to succeed on an ineffective assistance of counsel
claim involving a facially provident guilty plea, a defendant is
required to make two showings: (1) “that [her] counsel’s
challenged acts or omissions made counsel’s overall performance
fall ‘below an objective standard of reasonableness,’” United
States v . Giardino, 797 F.2d 3 0 , 31 (1st Cir. 1986) (citations
omitted); and (2) “‘a reasonable probability that, but for
counsel’s errors, [she] would not have pleaded guilty and would
have insisted on going to trial.’” Id. Petitioner fails on each
requirement.
Nothing suggests that counsel’s acts or omissions made his
overall performance fall below an objective standard of
reasonableness. As noted, Guay’s plea colloquy statements are
presumed truthful and she has offered no specific allegations of
coercion or lack of preparation, or any other deficiency
warranting a conclusion that counsel’s performance was deficient
in any way.
To the extent Guay suggests that counsel failed to consider
or present an entrapment defense, she also misses the mark.
Given the facts disclosed in the record, both those provided in
the government’s proffer (which she acknowledged as accurate),
6 and those proffered at sentencing, it is plain that counsel did
carefully consider Guay’s entrapment defense, correctly
determined that it was not viable, and properly advised her in
that respect. Among the many reasons why that defense was
unavailable are these: (1) the government agent (the undercover
officer) simply did not do or say anything that could amount to
an improper inducement for Guay to sell him drugs; (2) the
“middleman” (Cyr) was not requested, encouraged, or instructed by
a government agent to employ a specified inducement, which could
be found improper, against Guay; (3) the undercover officer did
not act through the middleman after other government attempts at
inducing her to engage in illegal conduct failed; and (4) Guay
was plainly predisposed, even anxious, to sell crack to the
undercover officer, soliciting his direct future contact after
the first sale was arranged by the informant. See, e.g., United
States v . Luisi, 482 F.3d 4 3 , 55 (1st Cir. 2007) (describing the
elements of an entrapment defense).
Guay’s guilty plea trumps any legal defense she might have
offered, and counsel’s advice to plead guilty rather than risk
trial on the strength of an entrapment defense was sterling
advice, not ineffective assistance. An entrapment defense was
not likely to succeed given the facts as acknowledged and the
7 current state of the law, but in any event, counsel’s
discouraging advice on that point was not ineffective assistance.
It was, instead, particularly good advice.
Finally, the powder cocaine - crack cocaine sentencing
disparity under the Sentencing Guidelines literally had no effect
on Guay’s sentence. She received a non-guideline sentence at the
lowest possible level - that of the statutorily mandated minimum
amount of five years in prison.
Conclusion
The motion for relief pursuant to 28 U.S.C. § 2255 is
without merit and is hereby denied.
SO ORDERED. ^_>^7
Steven J. McAuliffe Chief Judge
October 23, 2007
cc: Kelly Guay, pro se Aixa Maldonado-Quinones, AUSA