United States v. Okafor

49 F. App'x 353
CourtCourt of Appeals for the Second Circuit
DecidedOctober 29, 2002
DocketDocket No. 01-1612
StatusPublished

This text of 49 F. App'x 353 (United States v. Okafor) 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. Okafor, 49 F. App'x 353 (2d Cir. 2002).

Opinion

SUMMARY ORDER

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the District Court be and it hereby is AFFIRMED.

Defendant-appellant Ike Okafor was arrested in December 1998 and subsequently indicted on charges of conspiracy to import heroin into the United States and export cocaine from the United States, in violation of 21 U.S.C. §§ 812, 952(a), 958(a), 960(a)(1), 960(b)(3), and of possession with intent to distribute heroin, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A). Following Defendant’s arrest, the government secured a search warrant for Defendant’s home, where they found a kilogram [354]*354of heroin and a variety of incriminating documents.

After Defendant and his then-counsel, Cecillia Wang, participated in four proffer sessions, the government declined to offer Defendant a cooperation agreement, asserting that it did not believe he was providing complete and truthful information. In August 1999, at Defendant’s request, Roy Kulesar replaced Ms. Wang as Defendant’s appointed counsel. Five months later, Mr. Kulesar filed a motion seeking to suppress the evidence discovered in Defendant’s home, on the ground that the government did not have probable cause for the search warrant. The district court denied the motion after a hearing in April 2000, finding that there was “overwhelming probable cause” for the warrant.

On the morning the trial was scheduled to begin, Defendant informed the court that he wished to plead guilty to both counts of the Superseding Indictment. After conducting a plea proceeding to ensure that Defendant understood the consequences of the plea, the court accepted Defendant’s guilty plea, set a date for sentencing, and ordered Defendant to cooperate with the Probation Department in the preparation of the Pre-Sentence Report.

In late November 2000, Defendant against asked for new counsel, and Mr. Kulesar was replaced by Henry Mazurek. Also in November, the Probation Office’s Presentence Report was prepared. The report calculated Defendant’s sentence as comprising (1) a base level of 36; (2) a four-level upward adjustment under U.S.S.G. § 3131.1(a) due to Defendant’s role as “an organizer and leader in the criminal activity”; (3) a two-level reduction under U.S.S.G. § 3El.l(a) based on acceptance of responsibility; and (4) a criminal history category of I. This calculation yielded a sentencing range of 235 to 293 months’ imprisonment.

Defendant objected to the report, complaining that (1) he was not a “leader” of the conspiracy and therefore that a four-level upward adjustment was unwarranted and he should receive a “safety-valve adjustment”; (2) he should have received a three-level downward adjustment for accepting responsibility rather than just a two-level adjustment; and (3) he should get an additional downward adjustment to put his sentence in line with those of his co-defendants, because the disparity of the sentences suggested “a malfunctioning of the Sentencing Guidelines.” As to this last claim, Defendant alleged specifically that “he was prejudiced by the government’s decision to manipulate the Guidelines by withholding or disclosing information to the sentencing court involving the different co-conspirators’ offense conduct with the intent to influence the Guidelines calculations.” The government disputed each of these claims, and in addition urged that Defendant be denied any downward adjustment for acceptance of responsibility.

The district court ordered an evidentiary hearing prior to sentencing to resolve these issues, but denied Defendant’s request for a 90-day adjournment to allow time for Defendant to subpoena two government witnesses. The court heard testimony from an agent who had been involved in the proffer sessions, and from Ms. Wang, whose recollection of Defendant’s candor and cooperation in the proffer sessions differed sharply from the agent’s. At the conclusion of this testimony, the court found (1) that Defendant was a leader of the conspiracy, and therefore was both disqualified from claiming relief under the “safety valve” and subject to an upward adjustment for that role, and (2) that Defendant was entitled to a two-point (but not a three-point) downward adjustment for acceptance of responsibility, because “[wjhile the defendant did admit his [355]*355own involvement to a substantial degree, [the court was] not at all persuaded that he provided complete information.”

Finally, the court denied Defendant’s request for a downward departure based on the government’s “sentencing manipulation” in the case. The court concluded that, even assuming arguendo that the government had manipulated the sentencing of the co-defendants, “[t]here is nothing to suggest that the charges here involve the manipulation of the guidelines with respect to this defendant.”

In the end, the court’s calculation of the Sentencing Guidelines resulted in a range of 188 to 235 months,1 and the court imposed a sentence of 188 months. This appeal followed.

Defendant first argues that his conviction should be reversed based on ineffective assistance of counsel. Specifically, Defendant alleges that Mr. Kulcsar did not tell him that it might have been possible to enter a conditional plea—one that would have preserved his right to challenge the district court’s denial of his suppression motion. Furthermore, Defendant maintains, Mr. Kulcsar erroneously told Defendant that if he wanted to plead guilty (in the absence of a plea agreement) he would have to plead to all overt acts and objects of the conspiracy included in the indictment, and not just to the heroin-related acts. Defendant argues that, but for the erroneous advice of his counsel, “he would have at the very least entered a guilty plea sufficiently in advance of trial to earn the third point reduction available to him for acceptance of responsibility under the federal Sentencing Guidelines.” Therefore, Defendant concludes, “there is a ‘reasonable probability’ that the outcome would have differed if Mr. Okafor had this information prior to the first day of trial.”

Ineffective assistance claims are frequently more appropriately raised in § 2255 petitions, rather than on direct appeals, because “resolution of such claims often requires consideration of matters outside the record on direct appeal.” Billy-Eko v. United States, 8 F.3d 111, 114 (2d. Cir.1993).2 Deciding the issue on direct appeal is warranted, however, when “its resolution is beyond any doubt or to do so would be in the interest of justice.” United States v. Stantini, 85 F.3d 9, 20 (2d. Cir.1996) (internal quotation marks and citation omitted). This is such a case.

Under the two-pronged test articulated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), a defendant alleging ineffective assistance of counsel must demonstrate, first, that the attorney’s representation “fell below an objective standard of reasonableness,” id. at 687-88, 104 S.Ct.

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Bluebook (online)
49 F. App'x 353, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-okafor-ca2-2002.