Smullen v. U.S.

• Decision Date: 08 May 1996
• Docket Number: No. 95-2315,95-2315
• Citation: 94 F.3d 20
• Parties: Arthur SMULLEN, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 20

94 F.3d 20

Arthur SMULLEN, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 95-2315.

United States Court of Appeals First Circuit.

Heard May 8, 1996.

Decided Aug. 30, 1996.

Anthony M. Fredella with whom Fredella & Wheeler was on brief, Somerville, MA, for appellant.

Jeanne M. Kempthorne, Assistant United States Attorney, with whom Donald K. Stern, United States Attorney, was on brief, for appellee.

Before STAHL, Circuit Judge, CAMPBELL, Senior Circuit Judge, and LYNCH, Circuit Judge.

LEVIN H. CAMPBELL, Senior Circuit Judge.

The principal issue is whether a criminal defendant, who is in custody, may under 28 U.S.C. § 2255 collaterally challenge the restitution order imposed as a part of his sentence. Following the only two circuits to have explicitly addressed this matter, we hold he may not.

Petitioner-appellant Arthur J. Smullen was convicted following a jury trial in the United States District Court for the District of Massachusetts on three counts of making false statements to a federal agency in violation of 18 U.S.C. § 1001. On May 27, 1993, Smullen was sentenced to 27 months in prison, 36 months of supervised release, restitution in the amount of $121,377.78, and a special assessment of $150. Smullen never filed a direct appeal from his conviction and sentence. On November 30, 1994, Smullen, pro se, filed a motion, pursuant to 28 U.S.C. § 2255, to vacate, set aside, or correct his sentence. ¹ The motion was denied by the district court, and Smullen now appeals. We affirm.

I.

The following facts are taken largely from the Presentence Investigation Report ("PSR") submitted to the district court by the probation department.

Smullen was employed by the United States Post Office until 1974, when he left on total disability. At that time, Smullen began receiving disability payments from the United States Department of Labor. Beginning in May 1982, Smullen began to work full time at the New England Dragway in Epping, New Hampshire. Smullen worked at the Dragway until his employment was terminated in 1988. Smullen then began preparations to open a motorcycle parts and service shop, Performance Cycles, Inc., which he opened in January 1989. Throughout the period between May 1982 and February 1990, during which Smullen was employed or self-employed for all but a brief period, Smullen filed annual reports with the United States Department of Labor--Office of Workers' Compensation Programs falsely stating that he had not been employed or self-employed in the preceding 15-month period. As a result, Smullen obtained disability payments to which he was not entitled.

Smullen was charged with making false statements to a federal agency in violation of 18 U.S.C. § 1001. The three-count indictment alleged that Smullen had filed fraudulent statements with the Department of Labor on form CA-1032 in 1988, 1989, and 1990. A jury convicted Smullen on all three counts. At sentencing, the district court ordered Smullen to pay $121,377.78 in restitution--an amount recommended by defense counsel. ² The PSR recommended an offense level of 15; however, the district court ordered an additional two-level enhancement for obstruction of justice, finding that Smullen's trial testimony was "thorough-going perjury." Smullen's sentencing range was then set at 24 to 30 months. The district court imposed a sentence of 27 months in prison and 36 months of supervised release. Although Smullen did not appeal from his conviction or sentence, he later filed a motion under 28 U.S.C. § 2255 seeking relief from his sentence. The district court denied this motion, and Smullen appeals.

II.

Smullen argued in his § 2255 motion, and now argues on appeal, that errors occurred in his sentence because he was denied his Sixth Amendment right to the effective assistance of counsel. Smullen contends that: (1) counsel erred in not arguing for a two-level reduction in offense level for acceptance of responsibility; (2) counsel erred in agreeing to an allegedly excessive loss amount, resulting in an improper Guideline sentencing range; and (3) counsel erred in suggesting a restitution amount approximately $100,000 in excess of the maximum amount which could be ordered by law. Only the third point appears to have any substance, but, as it is beyond the purview of a collateral proceeding brought under 28 U.S.C. § 2255, we cannot resolve it.

Smullen's failure to have raised the above claims on direct appeal from his sentence would normally have barred him from raising them in a § 2255 collateral attack unless he could show cause for the failure and actual prejudice. See Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 2565, 115 L.Ed.2d 640 (1991); United States v. Frady, 456 U.S. 152, 165-67, 102 S.Ct. 1584, 1593-94, 71 L.Ed.2d 816 (1982). However, cause and prejudice need not be shown when the underlying claim alleges ineffective assistance of counsel. See Knight v. United States, 37 F.3d 769, 774 (1st Cir.1994). ³ Smullen not only argues that his counsel performed inadequately during his sentencing hearing, but also that an appeal relative to these errors was not taken because of his counsel's allegedly incompetent advice that "an appeal was just a waste of time."

The standard for constitutionally ineffective assistance of counsel was set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). To succeed, Smullen has the burden of showing that (1) counsel's performance fell below an objective standard of reasonableness, and (2) there is a reasonable probability that, but for counsel's error, the result of the proceedings would have been different. See Scarpa v. Dubois, 38 F.3d 1, 8 (1st Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 940, 130 L.Ed.2d 885 (1995); Lopez-Nieves v. United States, 917 F.2d 645, 648 (1st Cir.1990) (citing Strickland, 466 U.S. at 687, 104 S.Ct. at 2064). In order to satisfy the first prong of the Strickland test, Smullen must show that "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. There is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689, 104 S.Ct. at 2065.

The first two of Smullen's sentencing claims must be dismissed as Smullen cannot meet either prong of the Strickland test. We cannot attribute error to counsel for failing to seek an offense level reduction based on acceptance of responsibility. See U.S.S.G. § 3E1.1. As the record shows, Smullen never accepted responsibility for his crimes. Smullen pleaded not guilty to each of the counts and maintained his innocence throughout the trial. See United States v. Bennett, 37 F.3d 687, 697 (1st Cir.1994) (holding that U.S.S.G. § 3E1.1 is generally not intended to apply to a defendant who challenges the essential factual elements of guilt). Moreover, the district court stated that the defendant's trial testimony was "thorough-going perjury" and imposed a sentence enhancement for obstruction of justice. See United States v. Talladino, 38 F.3d 1255, 1265 (1st Cir.1994) ("[I]n the universe of cases where obstruction of justice looms, a reduction for acceptance of responsibility is ordinarily forestalled altogether.").

Smullen has provided no better support for his contention that, had his counsel served him competently, the court would have found a lower offense level and, therefore, he would have been sentenced within a lower Guideline sentencing range. Smullen argues that the loss amount attributed to him as relevant conduct for sentencing purposes was excessive, and faults his lawyer for not bringing this fact to the court's attention. However, the amount of loss attributed to the petitioner's misconduct related to a period well within the duration of "relevant conduct" for purposes of the Sentencing Guidelines. See U.S.S.G. § 1B1.3(a)(2) (requiring that relevant conduct be "part of the same course of conduct or common scheme or plan as the offense of conviction"). Over an eight-year period, Smullen engaged in a course of conduct to fraudulently obtain unentitled disability benefits. Smullen's counsel made no error, let alone a constitutionally relevant one, in failing to argue for a lower loss amount. As it was, defense counsel argued for a loss amount significantly lower than that proposed by the government or by the probation department.

Smullen's third and only substantial claim is that the ineffective assistance of his counsel contributed to an order for him to pay an amount of restitution in excess of that permitted by law. See Ratliff v. United States, 999 F.2d 1023, 1026 (6th Cir.1993) ("A refusal to appeal an erroneous restitution award, which award would have been subject to reversal on appeal, would meet the Strickland test and would clearly constitute cause for [the] failure to appeal the award.") If Smullen's restitution obligation exceeds the maximum amount which the law permits, there may be a reasonable probability that counsel's failure to point this out contributed to the unfavorable outcome. Id.

It may be, but we need not decide, that Smullen's restitution obligation did, in fact, exceed the maximum permitted by law, notwithstanding the basic equities that appear to have prompted it. The Supreme Court has limited restitution to losses caused by the specific conduct that is the basis of the offense of conviction. Hughey v. United States, 495 U.S. 411, 420, 110 S.Ct. 1979, 1984, 109 L.Ed.2d 408 (1990) (holding that "the loss caused by the conduct underlying the offense of conviction establishes the outer limits of a restitution order"). ⁴ Smullen was ordered to repay $121,377.78 in connection with his guilty verdict on three counts relating to false statements submitted to the Department of Labor in 1988, 1989, and 1990. The $121,377.78 figure represents the...