United States v. Laws

88 F. App'x 448
CourtCourt of Appeals for the Second Circuit
DecidedFebruary 18, 2004
DocketNo. 00-1649
StatusPublished
Cited by2 cases

This text of 88 F. App'x 448 (United States v. Laws) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Laws, 88 F. App'x 448 (2d Cir. 2004).

Opinion

SUMMARY ORDER

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that this appeal is hereby AFFIRMED in part and VACATED and REMANDED in part.

In September 1999, Defendant-Appellant T’Challo Radford was indicted on numerous charges including bank fraud, mail fraud, and conspiracy. Represented by his attorney, Alan Goldstein, Radford was arraigned and released on bail. In the months following his release on bail, Rad-ford continued to engage in illegal activity similar to that for which he had already been indicted. In February 2000, the district court therefore granted the government’s motion to revoke Radford’s bail and pre-trial release. A second indictment, covering Radford’s criminal activities while out on bail, was issued in March 2000.

Trial on the first indictment began in late March, and ended with a jury verdict of guilty on all thirteen charged counts. [450]*450Following that conviction, Radford and the government negotiated a plea agreement with respect to the second indictment. In it, the parties agreed that, because of the “common nature of the conduct in both cases,” sentencing on the second indictment should be consolidated with sentencing in the first case. Plea Agreement in United States v. Radford, No. 00-CR-44-A, at 1 n. 1 (W.D.N.Y., June 13, 2000).

The plea agreement (with reference to the PSR’s calculation of the sentence for the crimes for which the defendant had been found guilty) stated that the combined total offense level was 27. With an anticipated criminal history category of II, Radford’s sentencing range was predicted by the agreement to be 78 to 97 months’ incarceration, with a fine of $12,500 to $125,000.

The plea agreement included a standard waiver of appeal in which Radford “knowingly waive[d] the right to appeal or collaterally attack any total sentence imposed by the Court in this case and 99-CR-127-A [the case for which he had been convicted at trial] which falls within or is less than the sentencing range set forth [in the agreement], notwithstanding the fact that the Court may reach that range by a Guidelines analysis different from that set forth in this agreement.” Id. at 7. The agreement contained no provision with respect to restitution.

At sentencing, the district court adopted the PSR’s calculation of Defendant’s offense level at 27, and its calculation of Defendant’s criminal history category at level I, for a sentencing range of 70-87 months’ imprisonment. The court imposed a sentence of 87 months-80 months for all of the applicable counts in the first indictment (to be served concurrently), and 7 months (to be served consecutively) for Count 1 of the second indictment-as well as a five-year period of supervised release and a mandatory $1,400 special assessment. The court did not impose a fine, stating that it did not believe the defendant had the ability to pay it. In addition to these, the court ordered mandatory restitution of $174,024.

Defendant now appeals his conviction and sentence. He asserts, inter alia, (1) that his trial attorney had conflicts of interest which require reversal of the conviction on the first indictment; (2) that he received ineffective assistance of counsel in the trial on the first indictment, in negotiating the plea agreement, and at sentencing; and (3) that the district court erred in its order of restitution.

I.

We begin by asking whether, if binding on Radford, Radford’s plea agreement would bar our consideration of his appeal. The district court determined at the plea allocution that the waiver provision was knowing and voluntary and therefore enforceable. We agree. Accordingly, Radford, by executing the plea agreement, waived his right to challenge his counsel’s alleged ineffectiveness at sentencing. As in United States v. Djelevic, 161 F.3d 104 (2d Cir.1998) (per curiam), “despite his effort to dress up his claim as a violation of the Sixth Amendment, [defendant] in reality is challenging the correctness of his sentence under the Sentencing Guidelines, and is therefore barred by the plain language of the waiver contained in this plea agreement with the government.” Id. at 107. By its own terms, Radford’s plea agreement did not, however, waive his right to challenge his counsel’s alleged ineffectiveness at trial due to a conflict of interest. Nor did it waive his right to challenge his restitution order as it was at best ambiguous as to whether the waiver provision meant to apply to an order of restitution. See United States v. Ready, [451]*45182 F.3d 551, 556 (2d Cir.1996) (the terms of a plea agreement must be construed narrowly).

II.

Defendant first claims that his legal representation was marred by two separate conflicts of interest. We have carefully considered Defendant’s arguments in the light of the Supreme Court’s decision in Mickens v. Taylor, 535 U.S. 162, 166, 122 S.Ct. 1237, 152 L.Ed.2d 291 (2002), and our decision in United States v. Blount, 291 F.3d 201, 210-11 (2d Cir.2002), cert. denied sub nom. Streater v. United States, 537 U.S. 1141, 123 S.Ct. 938, 154 L.Ed.2d 838 (2003), and find them to be without merit.

Defendant also contends that, even without taking into account his attorney’s alleged conflicts of interest, he was denied the effective assistance of counsel in the trial on his first indictment and in the negotiation of his plea agreement. He asserts that these claims meet the requirements of Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), because (1) his attorney’s performance fell below an objective standard of reasonableness, and (2) Defendant was prejudiced by that inadequate performance. After examining that record we conclude that the conduct of Radford’s attorney was objectively reasonable. Moreover, Radford also has failed to establish a reasonable probability that but for his counsel’s alleged errors, the result of the proceedings would have been different.

Having failed to establish either that his attorney labored under a reversible conflict of interest or that the attorney provided ineffective assistance, Radford is bound to the plea agreement he accepted. Knowing and voluntary waivers of a defendant’s right to appeal a sentence within an agreed Guidelines range are enforceable. United States v. Salcido-Contreras, 990 F.2d 51, 51 (2d Cir.1993) (per curiam); see also United States v. Fisher, 232 F.3d 301, 303 (2d Cir.2000). Like the agreements in Salcido-Contreras and Fisher, the agreement in the instant case stipulated an anticipated sentencing range, and explicitly waived any right Defendant might otherwise have had to appeal his sentence so long as that sentence fell within, or below, the stipulated range. And it did so regardless of the method by which the district court reached that sentence.

III.

As noted above, the district court ordered restitution of $174,024.

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Related

Radford v. United States
543 U.S. 1106 (Supreme Court, 2005)
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543 U.S. 1098 (Supreme Court, 2005)

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Bluebook (online)
88 F. App'x 448, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-laws-ca2-2004.