Araromi v. United States, EP-13-CV-201

CourtUnited States District Courts. 5th Circuit. Western District of Texas
Decision Date23 April 2014
Docket NumberEP-09-CR-3143-KC-1,EP-13-CV-201
PartiesEYITAYO ARAROMI, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
ORDER

On this day, the Court considered Petitioner's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (the "Motion"),1 ECF No. 568.2 By the Motion, Petitioner challenges his sentence on the ground that he received ineffective assistance of counsel. For the following reasons, the Court DENIES the Motion.

I. BACKGROUND
A. Indictment and Plea Agreement

On November 24, 2009, a grand jury charged Petitioner, along with several co-defendants, in a two-count indictment (the "Indictment"), ECF No. 1, with conspiracy to possess cocaine and ecstasy with intent to distribute in violation of 21 U.S.C. §§ 846 and 841(a)(1), (b)(1)(B)(ii), and (b)(1)(C). See Indictment 1-3. Although the Court initially appointed an attorney to represent Petitioner, see ECF No. 83, Petitioner later retained a different attorney ("Trial Counsel") in the Case. See ECF Nos. 96, 97.

On January 8, 2010, the Government filed a notice of enhanced penalty (the "Notice of Enhanced Penalty"), ECF No. 172. The Government thereby sought an enhanced sentence on the basis of Petitioner's two prior drug possession convictions. See id. at 1-2.

Petitioner, Trial Counsel, and the Assistant United States Attorney assigned to the Case then signed a plea agreement (the "Plea Agreement"), ECF No. 203, at 5. Petitioner thereby agreed to plead guilty to Count One of the Indictment, which charged Petitioner with conspiracy to possess cocaine with intent to distribute. See id. at 1. In exchange, the Government did not pursue Count Two, which charged Petitioner with conspiracy to possess ecstasy with intent to distribute. See Sentencing Hr'g Tr., Dec. 20, 2010, ECF No. 508, at 56.

The Plea Agreement contains several provisions relevant to the disposition of the Motion. First, the Plea Agreement contains a provision entitled "RANGE OF PUNISHMENT" that provides:

[Petitioner] understands that as a result of the [Notice of Enhanced Penalty], the range of punishment for [Petitioner]'s offense is a term of imprisonment of not less than ten (10) years or more than life, a fine not to exceed $4,000,000, a term of supervised release of at least eight (8) years, and a $100 special assessment.

Plea Agreement 1.

The Plea Agreement also contains a waiver of Petitioner's right to appeal his sentence (the "Appeal Waiver"), which is reproduced in relevant part as follows:

By entering into th[e] [P]lea [A]greement, and as a term of th[e] [P]lea [A]greement, [Petitioner] voluntarily and knowingly waives any right to appeal the sentence on any ground, including any appeal right conferred by 18 U.S.C. § 3742, as amended by [United States v. Booker, 543 U.S. 220 (2005)] . . . . Realizing the uncertainty in estimating what sentence [Petitioner] will ultimately receive, [Petitioner] knowingly and voluntarily waives any rights to appeal the sentence or contest it in any post-conviction proceeding in exchange for the concessions made by the Government in th[e] [P]lea [A]greement.

Id. at 3.

B. Plea Hearing

The Court held a plea hearing on February 23, 2010 (the "Plea Hearing"),3 at which Petitioner pleaded guilty to Count One of the Indictment. See Plea Hr'g Tr., Feb. 23, 2010, ECF No. 507, at 34. Petitioner, prior to pleading guilty, affirmed in a colloquy with the Court that he was pleading guilty "freely and voluntarily," and that he was fully satisfied with Trial Counsel's representation. See id. at 6-8. Petitioner further affirmed that he had a chance to review and discuss the Plea Agreement with Trial Counsel before signing it. See id. at 10.

Petitioner also affirmed that he understood that, as a result of the Notice of Enhanced Penalty, he could be sentenced to incarceration of not less than ten years or more than life, among other punishments.4 See id. at 17. Petitioner nonetheless admitted to the two prior drug convictions listed in the Notice of Enhanced Penalty. See id. at 38-39.

The Court also admonished Petitioner as follows regarding the Appeal Waiver:

In your case, Mr. Araromi, you do have a plea agreement. By entering into that plea agreement, you have limited your right to appeal. That doesn't mean you can't appeal. But it means you have a limited right to appeal. You could still appeal for ineffective assistance of counsel. You could appeal if there were some sort of prosecutorial misconduct that rises to a Constitutional violation. But you have a limited right to appeal. Do you understand that?

Id. at 23-24.

However, the transcript reflects that Petitioner did not answer this question; instead, the transcript reflects that another defendant in an unrelated case who was pleading guilty at the same hearing, Ygnacio Luis Aldama-Blanchard ("Aldama"), answered "Yes, Your Honor." Seeid. at 24.

After this colloquy, the Assistant United States Attorney summarized the factual basis to which Petitioner would plead guilty. See id. at 28-31. Petitioner affirmed that, subject to certain clarifications by Trial Counsel that are not relevant to the disposition of the Motion, the information in the factual basis was "true and correct." See id. at 33. Petitioner then pleaded guilty, and the Court accepted his plea. See id. at 34, 37-38.

C. Presentence Investigation Report

Following the Plea Hearing, a United States Probation Officer prepared an initial presentence investigation report. See ECF No. 408. Trial Counsel raised several written objections to the initial report. See ECF No. 408-3. The probation officer thereafter filed a revised presentence investigation report (the "PSR"), ECF No. 474,5 that was "revised to reflect" certain "revisions and omissions" that the officer listed in an attached document. See ECF No. 474-1 (describing differences between the initial presentence investigation report and the PSR).

D. Sentencing Hearing

The Court held a sentencing hearing in the Case on December 20, 2010 (the "Sentencing Hearing"). See Sentencing Hr'g Tr. The Court sentenced Petitioner in accordance with the 18:1 crack-to-powder cocaine ratio embodied in the Fair Sentencing Act of 2010, Pub. L. No. 111220, 124 Stat. 2372 (codified in scattered sections of 21 U.S.C. and 28 U.S.C.) (the "FSA"). The Court also enhanced Petitioner's sentence on the basis of (1) a firearm Petitioner possessed during the course of the conspiracy and (2) the prior convictions listed in the Notice of Enhanced Penalty. See Sentencing Hr'g Tr. 54-55. The Court accordingly sentenced Petitioner to 292months of incarceration and eight years of supervised release. See id. at 55. The Court also imposed a $5,000 fine and a $100 special assessment. See id. at 55-56.

E. Appeal

On December 28, 2010, Trial Counsel filed a notice of appeal on Petitioner's behalf. See ECF No. 493. On the same day, Trial Counsel filed a motion to withdraw as Petitioner's attorney of record. See ECF No. 494. The Court granted Trial Counsel's motion to withdraw on January 1, 2011. Petitioner then retained another attorney ("Appellate Counsel") to represent him on appeal. See ECF No. 504.

Petitioner, with Appellate Counsel's assistance, appealed his conviction to the United States Court of Appeals for the Fifth Circuit, where he raised several challenges. See United States v. Araromi, 477 F. App'x 157 (5th Cir. 2012). Petitioner first argued that his guilty plea was neither knowing nor voluntary because this Court failed to comply fully with Federal Rule of Criminal Procedure 11(b)(1) at the Plea Hearing. See id. at 158. The Fifth Circuit rejected Petitioner's argument because he failed to demonstrate that he "would not have pleaded guilty but for [this Court's] errors." Id.

Petitioner then argued that the factual basis was insufficient to support his guilty plea. See id. The Fifth Circuit, citing "ample evidence that the conspiracy involved 500 grams or more of . . . cocaine," concluded that "the factual basis was . . . sufficient to support the district court's acceptance of [Petitioner]'s guilty plea." Id. at 158-59.

Petitioner also argued that "the [P]lea [A]greement was void for lack of consideration because the Government surrendered no rights in exchange for his wholesale capitulation." See id. at 159. The Fifth Circuit rejected this argument on several grounds. First, the Fifth Circuit ruled that, because the Fifth Circuit had "never expressly held that consideration is required tosupport a valid plea bargain," Petitioner could not establish "that the district court plainly erred in accepting his plea agreement," even if the Plea Agreement "lacked a bargained for quid pro quo." See id. (citing United States v. Smallwood, 920 F.2d 1231, 1239-40 (5th Cir. 1991); Smith v. Estelle, 562 F.2d 1006, 1008 (5th Cir. 1977)). Secondly, the Fifth Circuit concluded that the Plea Agreement was in fact supported by consideration, because the Government agreed to, and Petitioner received, a three-level reduction pursuant to U.S.S.G. § 3E1.1. See id.

Petitioner also challenged the length of his sentence on various grounds. See id. at 159-60. The Fifth Circuit refused to consider these arguments because Petitioner "knowingly and voluntarily waived his right to appeal his sentence on any ground" by agreeing to the Appeal Waiver. Id. at 160.

The Fifth Circuit accordingly affirmed this Court's judgment in all respects. See id. Appellate Counsel did not file a writ of certiorari with the United States Supreme Court.

F. Post-Appeal Filings

On December 29, 2011, Petitioner moved to retroactively modify his sentence to receive the benefit of the more lenient punishments for crack cocaine offenses enacted by the FSA and the analogous changes to the Sentencing Guidelines. See ECF No. 535. The Court denied this motion on January 24, 2012 on the ground that Petitioner had already "received the benefit of those amendments...

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