Krecht v. United States

• Decision Date: 14 February 2012
• Docket Number: Case No. 09–81028–CIV.
• Citation: 846 F.Supp.2d 1268
• Parties: Mahmoud KRECHT, Movant, v. UNITED STATES of America, Respondent.
• Court: U.S. District Court — Southern District of Florida

846 F.Supp.2d 1268

Mahmoud KRECHT, Movant,

v.UNITED STATES of America, Respondent.

Case No. 09–81028–CIV.

United States District Court,

S.D. Florida.

Feb. 14, 2012.

Richard Francis Della Fera, Entin & Della Fera, Fort Lauderdale, FL, for Movant.

Lothrop Morris, United States Attorney's Office, West Palm Beach, FL, for Respondent.

ORDER ADOPTING REPORT AND RECOMMENDATION

KENNETH L. RYSKAMP, District Judge.

THIS CAUSE comes before the Court pursuant to the report and recommendation of United States Magistrate Judge Jonathan Goodman, dated January 23, 2012 [DE 49]. No objections to the report and recommendation have been filed. The Court has reviewed the report and recommendation and has conducted a de novo review of the underlying record. It is hereby

ORDERED AND ADJUDGED that the report and recommendation is ADOPTED, AFFIRMED and APPROVED. Movant Mahmoud Krecht's 28 U.S.C. § 2255 motion to vacate, set aside, or correct sentence is GRANTED as to his safety valve claim. Movant shall be resentenced at a total offense level of 35. The resentencing shall be scheduled by separate order.

REPORT AND RECOMMENDATIONS ON § 2255 MOTION

JONATHAN GOODMAN, United States Magistrate Judge.

This matter is before the Court on Mahmoud Krecht's motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. Krecht is currently serving a 210–month sentence at the Federal Detention Center in Miami, Florida. The motion was initially filed pro se but Krecht subsequently obtained counsel. The Court has reviewed the motion (D.E. 1), the government's response (D.E. 10), Krecht's pro se reply and the supplemental reply filed by counsel (D.E. 17, 24), the Presentence Investigation Report (PSI) and addendum and objections thereto, the exhibits filed in connection with the motions in this case, and all pertinent portions of the underlying criminal case.¹

With one exception, Krecht's motion does not generate grounds worthy of significant discussion. The one issue requiring comprehensive analysis—Krecht's claim that counsel was ineffective for failing to diligently pursue the so-called “safety valve” provision of the federal sentencing guidelines—must still be rejected on the present record because Krecht cannot establish the requisite prejudice. As I will explain below, however, if the district court determines that there is a reasonable probability that it would have given Krecht a lower sentence at the offense level produced by application of the safety valve, then an evidentiary hearing is needed to determine whether Krecht would have been able to satisfy the safety valve's fifth element by providing the government with all truthful information and evidence concerning his offense. If, however, the district court determines that the sentence would not have been reduced even if the safety valve provision were applied, then I respectfully recommend that Krecht's § 2255 motion be denied.

I. INTRODUCTION

Before his conviction in this case, Mahmoud Krecht had no criminal record. He lived with his wife and three children in suburban Palm Beach County. Krecht held a doctorate in pharmacy and for two years prior to his arrest was self-employed as a licensed pharmacist. But when the pharmacy's cash reserves ran low, Krecht began filling fake prescriptions for oxycodone and other controlled drugs and continued filling the prescriptions even though he knew that they were fakes. During the summer of 2007, when the fake prescription scheme was in full gear, Krecht's business checking account ballooned to more than $1 million.

But Krecht's new-found wealth was short-lived. On August 30, 2007, DEA agents arrested Vincent Anthony Montesano, who had been filling fake prescriptions with Krecht. Montesano agreed to cooperate with the DEA and participated in a sting operation that led to Krecht's arrest on September 4, 2007. A grand jury charged Krecht with one count of conspiracy to distribute a controlled substance (in violation of 18 U.S.C. § 846) and one count of possessing with intent to distribute a controlled substance outside the course of professional practice (in violation of 18 U.S.C. § 841). Krecht faced a maximum sentence of 20 years for each count.

On February 20, 2008, Krecht pled guilty pursuant to a written plea agreement with the government. Krecht agreed to plead guilty to the conspiracy count and in return the government agreed to withdraw the possession with intent to distribute count and agreed not to prosecute Krecht for money laundering (under 18 U.S.C. §§ 1956, 1957). Krecht also agreed to forfeit more than $1 million. The plea agreement stated that the United States Attorney's Office may file a motion to reduce Krecht's sentence under § 5K1.1 of the Federal Sentencing Guidelines or Federal Rule of Criminal Procedure 35, based on Krecht's providing substantial assistance to the government. The United States Attorney's Office never filed either motion, however. As is standard in written plea agreements in this district, Krecht acknowledged in the plea agreement that the decision to file or not to file a Rule 35 or § 5K1.1 motion was a decision committed to the sole discretion of the United States Attorney's Office and that the United States Attorney's Office's assessment of the nature of Krecht's cooperation would be binding and unreviewable.

In the plea agreement, Krecht agreed to recommend that the district court impose a sentence within the advisory guideline range and not to depart upward or downward from that range. Krecht also waived his right to appeal under 18 U.S.C. § 3742 any sentence within the guideline range. Krecht acknowledged the waiver of his appellate rights in open court, as required by United States v. Bushert, 997 F.2d 1343, 1351 (11th Cir.1993). However, the appeal waiver provision in the plea agreement did not waive Krecht's right to collaterally attack his sentence under 28 U.S.C. § 2255.

The PSI computed Krecht's total offense level to establish his guideline sentence as follows: First, Krecht was responsible for 30,000 kilograms of marijuana (arrived at using the guideline's drug equivalency tables for oxycodone), giving him a base offense level of 38. Next, Krecht received a two level increase because he used his special skills as a pharmacist in the commission of the offense. SeeU.S.S.G. § 3B1.3. Krecht then received a three level reduction for acceptance of responsibility, giving him a total offense level of 37, which, given his lack of criminal history, corresponded to 210–262 months. Because the maximum statutory penalty was 240 months, Krecht's guidelines range was 210–240 months.

Krecht's counsel filed objections to the PSI. At the sentencing hearing, however, his counsel explained to the court that he was not technically challenging the guidelines range, as doing so would violate the plea agreement, but was merely seeking a sentence in the low guidelines range. For the most part, the objections highlighted mitigating factors which the district court might consider in imposing a sentence. Both Krecht and his wife testified at the sentencing hearing. Krecht accepted responsibility but asked the district court for leniency.

Krecht's objections to the PSI also noted that he satisfied the criteria for a safety valve reduction, which would have reduced his total offense level by two points. But the PSI stated, in a wholly conclusory way, that Krecht was ineligible for the safety valve based on information furnished by the AUSA. As will be explained in greater depth in the body of this Report, the safety valve dispute called for the district judge to make factual findings to determine Krecht's eligibility for this relief. Nevertheless, it appears from the record that both defense counsel and the AUSA (and the probation officer who prepared the PSI) misunderstood or were unaware of how to properly apply the safety valve generally and the provision's relationship to the plea agreement specifically.

On July 18, 2008, the district court sentenced Krecht to 210 months imprisonment, the bottom of the guideline's range. Krecht initially instructed his attorney to appeal, which he did, but after being informed that the United States Attorney's Office took the position that the appeal could affect whether a Rule 35 motion would be filed on Krecht's behalf, Krecht instructed his attorney to withdraw the appeal, which he also did.²

Krecht timely filed this § 2255 motion on July 14, 2009.³

II. CLAIMS

Krecht raises the following claims:

1. His counsel was ineffective because he advised movant that he would receive a sentence in the high single digits or low double digits. However, the plea agreement did not contain this sentence and at sentencing counsel stipulated to a base offense level of 38, which resulted in a sentence in the high teens. Counsel did not consult movant about this decision, which movant at the time was not in agreement with.

2. His counsel was ineffective for failing to bring to the court's attention movant's eligibility for a “safety valve” or § 5K1.1 reduction of sentence.

3. His counsel was ineffective because he misadvised movant of the consequences of proceeding to trial and coerced movant to plea guilty through fear and intimidation.

4. His counsel was ineffective for failing to file an appeal and challenge the unreasonableness of the sentence imposed. Movant contends that counsel did not file an appeal because it would have prejudiced movant's ability to obtain a Rule 35 motion from the government.

5. The government failed to file motions under U.S.S.G. § 5K1.1 or Rule 35 based on unconstitutional motives.

III. STANDARD OF REVIEWA. SECTION 2255

A prisoner in federal custody may move the court which imposed sentence to vacate, set aside or correct the sentence if it was imposed in violation of federal constitutional or statutory law, was imposed without proper jurisdiction, is in excess of the maximum authorized by law, or is otherwise subject to collateral attack....