U.S.A. v. Moree

• Decision Date: 01 August 1999
• Docket Number: Docket No. 99-1301
• Citation: 220 F.3d 65
• Parties: (2nd Cir. 2000) UNITED STATES OF AMERICA, Appellee, v. SCOTT IAN MOREE, also known as Paul T. Salmon, Defendant-Appellant
• Court: U.S. Court of Appeals — Second Circuit

Page 65

220 F.3d 65 (2nd Cir. 2000)

UNITED STATES OF AMERICA, Appellee, v. SCOTT IAN MOREE, also known as Paul T. Salmon, Defendant-Appellant.

Docket No. 99-1301

August Term, 1999

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

(Argued: January 21, 2000)

(Decided: July 17, 2000 )

Defendant pleded guilty to drug offense and illegal reentry into United States after deportation. The United States District Court for the District of Connecticut (Alan H. Nevas, Judge) entered judgment of conviction and imposed sentence. Defendant appeals his sentence contending he was denied effective assistance of counsel at the sentencing proceeding. The Court of Appeals, Leval, Circuit Judge, held that defendant was not denied effective assistance of counsel.

STEVEN M. STATSINGER, The Legal Aid Society, Federal Defender Division Appeals Bureau, New York, NY., for Appellant.

ALEX V. HERNANDEZ, Assistant United States Attorney, (Stephen C. Robinson, United States Attorney, on the brief), Bridgeport, Conn. for Appellee.

Before: CARDAMONE, LEVAL and PARKER, Circuit Judges.

AFFIRMED.

LEVAL, Circuit Judge:

Defendant Scott Moree appeals from a sentence imposed pursuant to a judgment of conviction entered April 14, 1999, in the United States Court for the District of Connecticut (Alan H. Nevas, Judge), on his plea of guilty to counts of conspiracy to possess cocaine base with intent to distribute cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and 846, and illegal reentry into the United States after deportation, in violation of 8 U.S.C. § 1326(a). On appeal, Moree contends that he was denied his Sixth Amendment right to effective assistance of counsel at his sentencing hearing because his appointed attorney was laboring under an actual conflict of interest resulting from the fact that Moree had accused him of coercing Moree's plea and of ineffective representation. Moree, however, is not seeking to vacate the plea. He seeks only to be re-sentenced while represented by new counsel.

We affirm the judgment.

BACKGROUND

A. The criminal conduct charged

Defendant Scott Moree, an alien and citizen of Jamaica, was deported from the United States on May 12, 1995. Sometime thereafter he reentered the United States without permission of the Attorney General.

After his illegal reentry, Moree became involved with a gang that sold drugs in Bridgeport, Connecticut. Wiretapped telephone conversations captured Moree participating in the conspiracy by agreeing to sell drugs to customers. On March 16, 1998, Moree was arrested after he sold a small quantity of cocaine to an undercover United States Marshall. By indictment, Moree was charged with conspiracy to possess cocaine base with intent to distribute, as well as with distribution and possession with intent to distribute, in violation of 21 U.S.C. §§ 846 and 841(a)(1). By separate indictment, Moree was charged with two counts of illegal reentry, in violation of 8 U.S.C. § 1326(a).

B. Moree's relationship with counsel prior to his plea

On March 17, 1998, counsel was appointed to represent Moree. On December 1, 1998, following several months of pre-trial proceedings, the district court ordered jury selection to commence on February 1, 1999, trial to begin immediately thereafter. On December 5, 1998, Moree wrote to Judge Nevas complaining that his counsel had failed to move for a speedy trial, which he characterized as "highly prejudicial;" Moree requested a "hearing to determine my attorney's competency." On the same date, Moree wrote to counsel, returning unsigned a form of waiver of speedy trial that counsel had previously sent him and requesting that counsel file instead a motion for speedy trial. On December 15, 1998, counsel filed a motion for speedy trial on Moree's behalf. On December 21, 1998, the court denied this motion. The court held no hearing to "determine [counsel's] competency" as Moree had requested.

On January 21, 1999, Moree filed a pro se motion seeking appointment of new counsel. In support of the motion, Moree argued that counsel had failed to seek a speedy trial; "failed to prepare the defense case properly;" had not forwarded papers to Moree; and had failed to discuss with him "strategic choices or possible defenses." After receiving a copy of this motion, counsel filed a motion to be relieved.

On January 26, 1999, the court held a hearing on the issue of the effectiveness of counsel's representation. At that hearing Moree informed the judge that counsel had visited him on only a single occasion in jail. He complained about and held counsel responsible for the slow progress of the case. Moree further complained that counsel was "incompetent," "inefficient," had not sent him any "paperwork" about his case and had not adequately explained the case to him. In response, counsel disputed these characterizations. While counsel conceded that he had visited Moree only once at the jail, he informed the court that he had had meetings with Moree at the courthouse cellblock. On one of these occasions Moree met with a voice identification expert whom counsel had hired, and they spent several hours preparing a voice authentication exemplar. Counsel also informed the court that he had played all of the wiretap tapes had gone over all of the transcripts and was "completely prepared to start trial" having "spent a lot of time preparing."

The court found that counsel had "done everything that [he was] required to do" and that Moree was "attempting to manipulate the court." The court therefore denied both Moree's motion for new counsel and counsel's motion to be relieved.

C. The Plea Agreement and Allocution

The Assistant United States Attorney had previously faxed counsel a proposed plea agreement. Although counsel had mailed a copy of that agreement to Moree, Moree had not received it at his detention facility. However, on January 26, 1999, following the hearing mentioned above, counsel, the Assistant, and Moree met to discuss the terms of this agreement. Under the proposed agreement, Moree would plead guilty to the count of conspiracy to possess cocaine base and one count of illegal reentry. The government agreed to dismiss the remaining counts at sentencing and to recommend a three level reduction in offense level for acceptance of responsibility. See U.S.S.G. § 3E1.1. The parties estimated that the guideline sentencing range on the narcotics charge would be 188 to 235 months, based on Moree's status as a career offender under U.S.S.G. § 4B1.1(B) and his criminal history category of VI. The guideline sentencing range on the illegal reentry charge was estimated at 77 to 96 months. The government agreed to recommend that the sentences run concurrently. The agreement further provided that Moree would not appeal a sentence within the specified guideline range.

Moree then appeared before Magistrate Judge William I. Garfinkel, and pled guilty pursuant to this agreement. At allocution, Moree affirmed that he did not have any difficulty communicating with counsel that his mind was clear that he understood the applicable penalties that he was satisfied with the representation he had received from counsel and that he had been well-advised and understood everything. The court reviewed the terms of the plea agreement with Moree and determined that Moree understood those terms and the rights he was waiving by agreeing to plead guilty. The court also questioned Moree to make sure that he understood how the Guidelines applied and how they might affect his sentence. The court then assured itself that there was a factual basis for Moree's plea and that Moree agreed with the government's proffered evidence. While Moree contested certain details of the prosecutor's proffer, relating to a count to which he did not plead, Moree affirmed that he had conspired to purchase and then resell the drugs. Based on the allocution, Magistrate Judge Garfinkel found that there was a factual basis for the plea and that Moree "enter[ed] the plea voluntarily, knowingly and of his own free will."

D. Sentencing

Sentencing was scheduled for April 14, 1999, before Judge Nevas. The presentence report ("PSR") prepared by the Probation Department originally recommended a sentence in the range 188 to 235 months' imprisonment. This was the same range estimated in the plea agreement, and was based on the same assumptions, including that Moree was a career offender under U.S.S.G. § 4B1.1.

Prior to sentencing, however, the Probation Department discovered that the career offender designation was not appropriate. This was because one of Moree's previous narcotics convictions occurred when he was under the age of 18, and the sentence was imposed more than five years before the commencement of the conspiracy in this case. Therefore, this prior conviction generated no criminal history points and could not serve as a career offender predicate. See U.S.S.G. §§ 4A1.2(d); 4B1.2(c) & cmt. 3. All parties then agreed that the original career offender designation was incorrect. The proper guideline range was determined to be 135 to 168 months' imprisonment.

At the sentencing hearing, the court inquired of Moree whether he had had the opportunity to discuss the presentence report with his attorney. Moree embarked on a long, rambling response in the course of which he said that both his counsel and the prosecutor had told him that if he rejected the plea, he would be tried and his sentence could be much longer. He claimed that the prosecutor had told him that if he did not plead he would be "leaving the prison system in a body bag." As a result, he claimed he started "getting all scared." He claimed that his attorney had made the agreement with the prosecutor "behind my back" and that "I don't really deserve all this time because it's like he never--" He complained further that having pled to five grams, he should not be sentenced for more. Moree made no request to withdraw the plea.

Moree's counsel made no...