Massillion v . USA CV-98-084-JD 07/21/98 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Enrico Massillion
v. Civil N o . 98-84-JD
United States of America
O R D E R
The petitioner has filed a motion pursuant to 28 U.S.C. §
2255 seeking to vacate his plea and sentence.
Following pleas of guilty, the defendant was sentenced on
February 1 3 , 1997, as follows: on counts one and two (conspiracy
to possess with intent to distribute cocaine and cocaine base) to
120 months imprisonment; on count five (conspiracy to possess a
firearm), to 60 months imprisonment; on count VI (conspiracy to
make a false statement in acquisition of a firearm) to 60 months
imprisonment; and on count eight (conspiracy to make false
statement required by a licensed firearm dealer) to 60 months
imprisonment. All sentences were ordered to run concurrently.
No appeal was taken.
The petitioner claims that his counsel was ineffective for
three reasons. The court applies the standard set forth in
Strickland v . Washington, 466 U.S. 668 (1984), in evaluating
these claims.
First, the petitioner claims that his counsel failed to request a judicial recommendation against deportation under 8
U.S.C. § 1251(b). Prior to November 2 9 , 1990, district judges
were authorized under certain circumstances to make a
recommendation against deportation at the time of sentencing. 8
U.S.C. § 1251(b)(2). 1 However, this authority was repealed on
November 2 9 , 1990. See United States v . Bodre, 918 F.2d 2 8 , 30 (1st Cir. 1991). Since as of the date of the petitioner’s
sentencing the court no longer had authority to make a
recommendation against deportation, petitioner’s counsel cannot
be charged with being ineffective for failing to do s o .
The petitioner’s second claim is that his counsel
erroneously advised him that if he entered a guilty plea, he
would have counts three and four dismissed and receive a sentence
within the guideline range of 70-87 months. He also contends
1 8 U.S.C. § 1251(b)(2) provided, in relevant part: (b) the provision . . . of this section respecting the deportation of an alien convicted of a crime or crimes shall not apply . . . (2) if the court sentencing such alien for such crime shall make, at the time of first imposing judgment or passing sentence, or within thirty days thereafter, a recommendation to the Attorney General that such alien not be deported, due notice having been given prior to making such recommendation to representatives of the interested State, the Service, and prosecution authorities, who shall be granted an opportunity to make representations in the matter. The provisions of this subsection shall not apply in the case of any alien who is charged with being deportable from the United States under subsection (a)(11) of this section.
2 that his counsel failed to inform him about the collateral consequences of deportation. Counts three and four were dismissed upon motion of the government. During the plea colloquy on July 1 0 , 1996, the defendant, under oath, in response to questions from the court,
stated that 40 years was the maximum penalty he could receive on
counts one and two and that he was aware that each count also
carried a mandatory minimum sentence of five years. He also
answered the court’s questions correctly when asked what the
maximum penalty was on the other counts (five years). The court
specifically asked petitioner if he had discussed the “possible
application of the guidelines” with his counsel and he responded
that he had. The court specifically asked petitioner’s counsel
if he had “reviewed how the guidelines might possibly apply” to the petitioner’s case and he acknowledge he had. These responses
immediately preceded the following colloquy between the court and
the petitioner:
THE COURT: Now just as M r . Utter can’t -- I can’t tell you what the range is today, neither can M r . Utter. He can give you this estimate --
THE WITNESS: Um-hum.
THE COURT: -- or best opinion, but you understand that in the end the Court may determine that the
3 guidelines range is different from what he has told you. THE DEFENDANT: Yes.
THE COURT: If that happens, you realize you can’t withdraw your guilty plea.
THE DEFENDANT: Yes.
THE COURT: In some instances after the Court has established the guideline range, the Court can impose a sentence that’s greater than that range or less than that range.
THE DEFENDANT: Okay.
THE COURT: Do you understand that if the Court does that you cannot withdraw your guilty plea?
THE DEFENDANT: Yes, your Honor.
THE COURT: You understand that if you don’t get the sentence that you hope to receive, would like to receive, or expect to receive, you cannot withdraw your guilty plea?
United States v . Massillon, Criminal N o . 96-018-01-JD (Transcript
of Sentencing, Feb. 1 3 , 1998, p p . 17-18).
The court finds that the petitioner knew that any sentencing
range his counsel discussed with him was merely an estimate or
best opinion, that the court could establish a range different
from what his counsel told him, and that if there was a
difference, it would not be grounds for withdrawing his plea.
Given the petitioner’s state of knowledge as reflected by his
4 responses to the Court’s questions, his present claim that his plea was not voluntary and intelligent finds no basis in fact and appears to be an ex post facto fabrication. Assuming that petitioner’s counsel did not inform him of the collateral consequence of deportation, this failure did not amount to ineffective assistance of counsel. The deportation process is civil in nature and is a collateral consequence of a criminal conviction, whether that conviction results following a trial or a guilty plea. The fact that deportation may result as a consequence of a criminal conviction does not make it part of the punishment for that conviction. In canvassing a defendant during a guilty plea, a judge is not required to inquire of or inform the defendant about deportation consequences. Nunez Cordero v . United States, 533 F.2d 723 (1st Cir. 1976). Since deportation is legally irrelevant when a defendant enters a guilty plea, the failure of the petitioner’s counsel to raise the matter with him does not render him ineffective. C f . United States v . Quin, 836 F.2d 654 (1st Cir. 1987). One can think of numerous collateral consequences that can flow from a criminal conviction (e.g., divorce, loss of j o b ) , and the mere fact that defense counsel does not review these collateral consequences with a criminal defendant does not make a guilty plea involuntary and unintelligent. The petitioner was fully aware of the direct
5 consequences of his guilty pleas, of the constitutional rights he
was giving up and the potential maximum sentences that he faced.
The fact that, as he now claims, he would have opted for a trial
instead of a plea had he known of the deportation consequence
does not render his plea involuntary and unintelligent. In
addition, assuming, arguendo, that counsel was obligated to inform him of the deportation consequences, petitioner has failed
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Massillion v . USA CV-98-084-JD 07/21/98 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Enrico Massillion
v. Civil N o . 98-84-JD
United States of America
O R D E R
The petitioner has filed a motion pursuant to 28 U.S.C. §
2255 seeking to vacate his plea and sentence.
Following pleas of guilty, the defendant was sentenced on
February 1 3 , 1997, as follows: on counts one and two (conspiracy
to possess with intent to distribute cocaine and cocaine base) to
120 months imprisonment; on count five (conspiracy to possess a
firearm), to 60 months imprisonment; on count VI (conspiracy to
make a false statement in acquisition of a firearm) to 60 months
imprisonment; and on count eight (conspiracy to make false
statement required by a licensed firearm dealer) to 60 months
imprisonment. All sentences were ordered to run concurrently.
No appeal was taken.
The petitioner claims that his counsel was ineffective for
three reasons. The court applies the standard set forth in
Strickland v . Washington, 466 U.S. 668 (1984), in evaluating
these claims.
First, the petitioner claims that his counsel failed to request a judicial recommendation against deportation under 8
U.S.C. § 1251(b). Prior to November 2 9 , 1990, district judges
were authorized under certain circumstances to make a
recommendation against deportation at the time of sentencing. 8
U.S.C. § 1251(b)(2). 1 However, this authority was repealed on
November 2 9 , 1990. See United States v . Bodre, 918 F.2d 2 8 , 30 (1st Cir. 1991). Since as of the date of the petitioner’s
sentencing the court no longer had authority to make a
recommendation against deportation, petitioner’s counsel cannot
be charged with being ineffective for failing to do s o .
The petitioner’s second claim is that his counsel
erroneously advised him that if he entered a guilty plea, he
would have counts three and four dismissed and receive a sentence
within the guideline range of 70-87 months. He also contends
1 8 U.S.C. § 1251(b)(2) provided, in relevant part: (b) the provision . . . of this section respecting the deportation of an alien convicted of a crime or crimes shall not apply . . . (2) if the court sentencing such alien for such crime shall make, at the time of first imposing judgment or passing sentence, or within thirty days thereafter, a recommendation to the Attorney General that such alien not be deported, due notice having been given prior to making such recommendation to representatives of the interested State, the Service, and prosecution authorities, who shall be granted an opportunity to make representations in the matter. The provisions of this subsection shall not apply in the case of any alien who is charged with being deportable from the United States under subsection (a)(11) of this section.
2 that his counsel failed to inform him about the collateral consequences of deportation. Counts three and four were dismissed upon motion of the government. During the plea colloquy on July 1 0 , 1996, the defendant, under oath, in response to questions from the court,
stated that 40 years was the maximum penalty he could receive on
counts one and two and that he was aware that each count also
carried a mandatory minimum sentence of five years. He also
answered the court’s questions correctly when asked what the
maximum penalty was on the other counts (five years). The court
specifically asked petitioner if he had discussed the “possible
application of the guidelines” with his counsel and he responded
that he had. The court specifically asked petitioner’s counsel
if he had “reviewed how the guidelines might possibly apply” to the petitioner’s case and he acknowledge he had. These responses
immediately preceded the following colloquy between the court and
the petitioner:
THE COURT: Now just as M r . Utter can’t -- I can’t tell you what the range is today, neither can M r . Utter. He can give you this estimate --
THE WITNESS: Um-hum.
THE COURT: -- or best opinion, but you understand that in the end the Court may determine that the
3 guidelines range is different from what he has told you. THE DEFENDANT: Yes.
THE COURT: If that happens, you realize you can’t withdraw your guilty plea.
THE DEFENDANT: Yes.
THE COURT: In some instances after the Court has established the guideline range, the Court can impose a sentence that’s greater than that range or less than that range.
THE DEFENDANT: Okay.
THE COURT: Do you understand that if the Court does that you cannot withdraw your guilty plea?
THE DEFENDANT: Yes, your Honor.
THE COURT: You understand that if you don’t get the sentence that you hope to receive, would like to receive, or expect to receive, you cannot withdraw your guilty plea?
United States v . Massillon, Criminal N o . 96-018-01-JD (Transcript
of Sentencing, Feb. 1 3 , 1998, p p . 17-18).
The court finds that the petitioner knew that any sentencing
range his counsel discussed with him was merely an estimate or
best opinion, that the court could establish a range different
from what his counsel told him, and that if there was a
difference, it would not be grounds for withdrawing his plea.
Given the petitioner’s state of knowledge as reflected by his
4 responses to the Court’s questions, his present claim that his plea was not voluntary and intelligent finds no basis in fact and appears to be an ex post facto fabrication. Assuming that petitioner’s counsel did not inform him of the collateral consequence of deportation, this failure did not amount to ineffective assistance of counsel. The deportation process is civil in nature and is a collateral consequence of a criminal conviction, whether that conviction results following a trial or a guilty plea. The fact that deportation may result as a consequence of a criminal conviction does not make it part of the punishment for that conviction. In canvassing a defendant during a guilty plea, a judge is not required to inquire of or inform the defendant about deportation consequences. Nunez Cordero v . United States, 533 F.2d 723 (1st Cir. 1976). Since deportation is legally irrelevant when a defendant enters a guilty plea, the failure of the petitioner’s counsel to raise the matter with him does not render him ineffective. C f . United States v . Quin, 836 F.2d 654 (1st Cir. 1987). One can think of numerous collateral consequences that can flow from a criminal conviction (e.g., divorce, loss of j o b ) , and the mere fact that defense counsel does not review these collateral consequences with a criminal defendant does not make a guilty plea involuntary and unintelligent. The petitioner was fully aware of the direct
5 consequences of his guilty pleas, of the constitutional rights he
was giving up and the potential maximum sentences that he faced.
The fact that, as he now claims, he would have opted for a trial
instead of a plea had he known of the deportation consequence
does not render his plea involuntary and unintelligent. In
addition, assuming, arguendo, that counsel was obligated to inform him of the deportation consequences, petitioner has failed
to demonstrate that there is a reasonable probability that but
for counsel’s error the result of the proceeding would have been
different. Going to trial in no way would have guaranteed that
the petitioner would be found not guilty. Indeed, based on the
proffer made by the government at the plea hearing and agreed to
by the defendant, with certain qualifications, a guilty verdict
following trial by jury would be reasonably probable.
The last claim raised by the petitioner is that a mis- demeanor conviction on March 3 0 , 1993, for assault and battery on
a police officer should not have been used to calculate his
criminal history category and his counsel was ineffective for
failing to raise this issue. Criminal history points are
calculated based not on the characterization of a conviction as a
misdemeanor or a felony but rather on the length of sentence that
was imposed. See United States Sentencing Guidelines
(“U.S.S.G.”) § 4A1.1. “To minimize problems with imperfect
6 measures of past crime seriousness, criminal history categories are based on the maximum time imposed in previous sentences rather than other means, such as whether the conviction was designated a felony or misdemeanor.” U.S.S.G. (1977 e d . ) , § 4A1.1, Background (page 2 8 7 ) . Since the petitioner is wrong in his interpretation of the guidelines, his counsel cannot be found to be ineffective for failing to raise this issue.
The petitioner has failed to show that his counsel’s performance was below an objective standard of reasonableness under prevailing professional norms.
Motion denied. The clerk shall close the case.
SO ORDERED.
Joseph A . DiClerico, J r . District Judge
July 2 1 , 1998
cc: Enrico Massillon, pro se U.S. Attorney