Warren v . United States 10-CV-527-SM 2/16/11 UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE
Roy Warren, Petitioner
v. Case N o . 10-cv-527-SM Opinion N o . 2011 DNH 030 United States of America, Government
O R D E R
Petitioner was convicted, upon his guilty pleas, of robbery
and conspiracy to commit robbery, in violation of 18 U.S.C.
§ 1951. He was sentenced to 168 months in prison, which
represented a variant sentence above the range recommended by the
United States Sentencing Guidelines (“U.S.S.G.”). The conviction
and sentence were summarily affirmed on appeal. The court of
appeals held the variant sentence to be both procedurally sound
and substantively reasonable. United States v . Warren, N o . 09-
2063 (1st Cir. April 2 3 , 2010).
Petitioner now seeks relief under the provisions of 28
U.S.C. § 2255 on a number of grounds, including a claim of
ineffective assistance of counsel. First, petitioner raises
issues related to the advisory guideline calculation at
sentencing. They are without merit. The adjustment for theft of
controlled substances was correct — David Roy’s prescription medications (including narcotics) were stolen. David Roy was a
victim of the conspiracy. The adjustment based upon a vulnerable
victim (David Roy) was also correct. Again, David Roy was a
victim of the conspiracy and he was vulnerable.
Petitioner also says that the indictment only charged a
conspiracy to rob, and robbery o f , Justin (not David) Roy, so
David Roy should not have played any role in the sentencing
analysis. He is incorrect. Part of the conspiratorial activity
included robbing David Roy, and that act fell within the
guideline provisions governing relevant conduct. U.S.S.G. §
1B1.3 (sentencing adjustments are based upon all acts committed
by defendant and those acting in concert in committing the
offense of conviction). And, of course, alleged errors in
applying the guidelines to the facts of a case are generally not
cognizable under § 2255. See Knight v . United States, 37 F.3d
769 (1st Cir. 1994).
Next, petitioner claims that there was no interstate
commerce connection sufficient to support a Hobbs Act conspiracy
or robbery conviction. That is incorrect as well. At the plea
hearing the prosecutor proffered that Justin Roy was an unlawful
dealer in prescription drugs, that the drugs he sold were
manufactured outside the State of New Hampshire (so traveled in
2 interstate commerce), and that the money taken from Roy
represented proceeds from his illegal drug sales. By taking
those proceeds, petitioner and his co-conspirators effected a
depletion of Roy’s assets that could (and likely would) have been
used to support his illegal prescription drug dealing business.
All of which provides an adequate interstate commerce connection
— a connection petitioner acknowledged as part of his plea
colloquy. See United States v . DeCologero, 530 F.3d 36 (1st Cir.
2008).
Finally, petitioner says his counsel provided ineffective
assistance by failing to argue at sentencing that the government
breached the plea agreement when it declined to move the court to
award an additional one point reduction for acceptance of
responsibility. See United States v . Warren, N o . 08-cr-56-SM,
Plea Agreement (document n o . 3 7 ) , at para. 5 . Initially, the
probation officer recommended that petitioner be denied any
acceptance credit, based upon a state conviction that occurred
after his pleas in this case. At the sentencing hearing,
however, the court sustained petitioner’s objection to the
proposed denial of acceptance credit. The court determined that
the offense conduct underlying the state conviction took place
before the plea agreement in this case was executed, so
3 petitioner was entitled to a downward adjustment of two levels
for acceptance of responsibility.
Petitioner’s plea agreement also provided that if the
defendant assisted the United States in the investigation or
prosecution of his own misconduct by timely notifying the
government of his intention to plead guilty, the government would
move to decrease the base offense level by an additional one
level pursuant to U.S.S.G. § 3E1.1(b). At sentencing, however,
the government had misgivings (as did the probation officer)
about petitioner’s entitlement to any acceptance credit under the
guidelines, or under the plea agreement, given the issue related
to his contemporaneous criminal conduct. The plea agreement, by
its terms, relieves the government of any obligation to “not
oppose” acceptance credit if the defendant “after signing the
Plea Agreement, engages in additional criminal conduct.” Plea
Agreement, Para. 5 I . Whether petitioner’s post-plea state
conviction operated to deprive him of all acceptance credit was
an unresolved issue at sentencing.
Petitioner’s point here is that, as the court determined, he
did not engage in criminal conduct after the plea agreement was
signed and the government was, therefore, obligated to move for
an additional one point downward adjustment, since he did provide
4 timely notice of his intent to plead guilty. He adds that his
counsel’s failure to raise the issue at sentencing amounted to
constitutionally deficient representation.
While it appears that an additional one point reduction for
acceptance of responsibility probably should have been awarded,
the short answer to petitioner’s current ineffective assistance
claim is that it would have made no difference in the sentence
imposed. Before relief can be obtained on an ineffective
assistance of counsel claim, two things must be shown. First,
counsel’s performance must be shown to have fallen below an
objective standard of reasonableness. Strickland v . Washington,
466 U.S. 668 (1984). Second, defendant must show “a reasonable
probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Id. at 694.
Here, I doubt, under the circumstances, that counsel’s
performance fell below an objective standard of reasonableness
with respect to sentencing. But, even assuming for argument’s
sake that it did with respect to acceptance credit, still,
petitioner suffered no prejudice. As this court noted in
describing the reasons for imposing a variant sentence above the
recommended guideline range:
5 [Petitioner is] a committed antisocial violent person. His recidivism in the future is virtually assured. His use of violence in the future is virtually assured and the overarching consideration for me is this is clearly a case in which the public needs to be protected, and that factor far outweighs the mitigating factors that, Mr. Iacopino, you’ve articulated and referred to in your sentencing memorandum and in oral presentation. So I think a substantial sentence is warranted.
It’s coincidental because the probation officer’s recommendation [has] been rejected in many ways with respect to the assignment of enhancements, but his ultimate recommendation was 168 months, and I think that’s about right in this case.
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Warren v . United States 10-CV-527-SM 2/16/11 UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE
Roy Warren, Petitioner
v. Case N o . 10-cv-527-SM Opinion N o . 2011 DNH 030 United States of America, Government
O R D E R
Petitioner was convicted, upon his guilty pleas, of robbery
and conspiracy to commit robbery, in violation of 18 U.S.C.
§ 1951. He was sentenced to 168 months in prison, which
represented a variant sentence above the range recommended by the
United States Sentencing Guidelines (“U.S.S.G.”). The conviction
and sentence were summarily affirmed on appeal. The court of
appeals held the variant sentence to be both procedurally sound
and substantively reasonable. United States v . Warren, N o . 09-
2063 (1st Cir. April 2 3 , 2010).
Petitioner now seeks relief under the provisions of 28
U.S.C. § 2255 on a number of grounds, including a claim of
ineffective assistance of counsel. First, petitioner raises
issues related to the advisory guideline calculation at
sentencing. They are without merit. The adjustment for theft of
controlled substances was correct — David Roy’s prescription medications (including narcotics) were stolen. David Roy was a
victim of the conspiracy. The adjustment based upon a vulnerable
victim (David Roy) was also correct. Again, David Roy was a
victim of the conspiracy and he was vulnerable.
Petitioner also says that the indictment only charged a
conspiracy to rob, and robbery o f , Justin (not David) Roy, so
David Roy should not have played any role in the sentencing
analysis. He is incorrect. Part of the conspiratorial activity
included robbing David Roy, and that act fell within the
guideline provisions governing relevant conduct. U.S.S.G. §
1B1.3 (sentencing adjustments are based upon all acts committed
by defendant and those acting in concert in committing the
offense of conviction). And, of course, alleged errors in
applying the guidelines to the facts of a case are generally not
cognizable under § 2255. See Knight v . United States, 37 F.3d
769 (1st Cir. 1994).
Next, petitioner claims that there was no interstate
commerce connection sufficient to support a Hobbs Act conspiracy
or robbery conviction. That is incorrect as well. At the plea
hearing the prosecutor proffered that Justin Roy was an unlawful
dealer in prescription drugs, that the drugs he sold were
manufactured outside the State of New Hampshire (so traveled in
2 interstate commerce), and that the money taken from Roy
represented proceeds from his illegal drug sales. By taking
those proceeds, petitioner and his co-conspirators effected a
depletion of Roy’s assets that could (and likely would) have been
used to support his illegal prescription drug dealing business.
All of which provides an adequate interstate commerce connection
— a connection petitioner acknowledged as part of his plea
colloquy. See United States v . DeCologero, 530 F.3d 36 (1st Cir.
2008).
Finally, petitioner says his counsel provided ineffective
assistance by failing to argue at sentencing that the government
breached the plea agreement when it declined to move the court to
award an additional one point reduction for acceptance of
responsibility. See United States v . Warren, N o . 08-cr-56-SM,
Plea Agreement (document n o . 3 7 ) , at para. 5 . Initially, the
probation officer recommended that petitioner be denied any
acceptance credit, based upon a state conviction that occurred
after his pleas in this case. At the sentencing hearing,
however, the court sustained petitioner’s objection to the
proposed denial of acceptance credit. The court determined that
the offense conduct underlying the state conviction took place
before the plea agreement in this case was executed, so
3 petitioner was entitled to a downward adjustment of two levels
for acceptance of responsibility.
Petitioner’s plea agreement also provided that if the
defendant assisted the United States in the investigation or
prosecution of his own misconduct by timely notifying the
government of his intention to plead guilty, the government would
move to decrease the base offense level by an additional one
level pursuant to U.S.S.G. § 3E1.1(b). At sentencing, however,
the government had misgivings (as did the probation officer)
about petitioner’s entitlement to any acceptance credit under the
guidelines, or under the plea agreement, given the issue related
to his contemporaneous criminal conduct. The plea agreement, by
its terms, relieves the government of any obligation to “not
oppose” acceptance credit if the defendant “after signing the
Plea Agreement, engages in additional criminal conduct.” Plea
Agreement, Para. 5 I . Whether petitioner’s post-plea state
conviction operated to deprive him of all acceptance credit was
an unresolved issue at sentencing.
Petitioner’s point here is that, as the court determined, he
did not engage in criminal conduct after the plea agreement was
signed and the government was, therefore, obligated to move for
an additional one point downward adjustment, since he did provide
4 timely notice of his intent to plead guilty. He adds that his
counsel’s failure to raise the issue at sentencing amounted to
constitutionally deficient representation.
While it appears that an additional one point reduction for
acceptance of responsibility probably should have been awarded,
the short answer to petitioner’s current ineffective assistance
claim is that it would have made no difference in the sentence
imposed. Before relief can be obtained on an ineffective
assistance of counsel claim, two things must be shown. First,
counsel’s performance must be shown to have fallen below an
objective standard of reasonableness. Strickland v . Washington,
466 U.S. 668 (1984). Second, defendant must show “a reasonable
probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Id. at 694.
Here, I doubt, under the circumstances, that counsel’s
performance fell below an objective standard of reasonableness
with respect to sentencing. But, even assuming for argument’s
sake that it did with respect to acceptance credit, still,
petitioner suffered no prejudice. As this court noted in
describing the reasons for imposing a variant sentence above the
recommended guideline range:
5 [Petitioner is] a committed antisocial violent person. His recidivism in the future is virtually assured. His use of violence in the future is virtually assured and the overarching consideration for me is this is clearly a case in which the public needs to be protected, and that factor far outweighs the mitigating factors that, Mr. Iacopino, you’ve articulated and referred to in your sentencing memorandum and in oral presentation. So I think a substantial sentence is warranted.
It’s coincidental because the probation officer’s recommendation [has] been rejected in many ways with respect to the assignment of enhancements, but his ultimate recommendation was 168 months, and I think that’s about right in this case. Not because of the guideline calculation, but under [§]3553(a), that’s about where I come out. I think that balances sufficiently the need to protect the public in the hope that the defendant may get sufficient treatment that his criminal conduct in the future will be alleviated. Maybe not, but 14 years ought to pretty much do it as a start, and obviously there will be a substantial period of supervised release as well.
Transcript of Sentencing Hearing (document n o . 1 0 5 ) , at 92-93.
A one point reduction in the calculated advisory guideline
range would have made no difference whatsoever with respect to
the non-guideline sentence imposed in this case — the same
variant sentence would have been imposed even if the additional
one point had been credited for acceptance of responsibility.
Accordingly, petitioner was not prejudiced in any way by the
failure to award that point, and his ineffective assistance of
counsel claim is without merit.
6 Conclusion
The petition is denied. Because petitioner has failed to
make a substantial showing of the denial of a constitutional
right, the court declines to issue a certificate of
appealability. See Rule 11(a), Rules Governing Section 2255
Proceedings. The clerk shall close the case.
SO ORDERED.
February 1 5 , 2011
cc: Roy Warren, pro se Aixa Maldonado-Quinones, AUSA