MEMORANDUM DECISION AND ORDER
B. LYNN WINMILL, District Judge.
Pending before the Court is Dennis Bruce Hammons' ("Hammons") Motion to Vacate Pursuant to 28 U.S.C. § 2255 (Dkt. 1). Having reviewed the Motion as well as the Response (Dkt. 5), Reply (Dkt. 6), and the underlying criminal record, the Court enters the following Order denying the Motion.
1. Indictment and Plea
Hammons was one of fifteen individuals charged in an Indictment filed September 13, 2006 in a case involving an approximately thirty-year drug and money laundering conspiracy. Relevant to the pending Motion, he was charged in the Second Superseding Indictment with continuing criminal enterprise in violation of 21 U.S.C. § 848 (Count 1), conspiracy to manufacture/distribute/possess controlled substances in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846 (Count 2), conspiracy to launder money in violation of 18 U.S.C. 1956(h) (Count 3), conspiracy to structure transactions and launder money in violation of 18 U.S.C. § 371 (Count 4), conspiracy to travel and transport in aid of racketeering enterprises in violation of 18 U.S.C. §§ 371, 1952 (also known as an "ITAR" offense) (Count 5), and several related forfeiture counts (Counts 6-10). See Second Superseding Indictment, Dkt. 425 (in criminal case). Hammons was arrested and appeared on February 4, 2008, in the District of Oregon. Arrest Warrant, Dkt. 446. He was arraigned on the Second Superseding Indictment in the District of Idaho on February 19, 2008, before Magistrate Judge Mikel H. Williams, waived a detention hearing, and remained in custody throughout these proceedings. Min. Entry, Dkt. 452; Waiver, Dkt. 456.
Appointed counsel, C. Tom Arkoosh, aggressively defended Hammons by filing a number of pre-trial motions and joining in the pre-trial motions of co-Defendants Gregory Frank Sperow and Lawrence Weitzman. See Mot. in Limine, Dkt. 538; Mot. to Change Venue, Dkt. 539; Mot. to Dismiss on Speedy Trial Grounds, Dkt. 540; Mot. to Sever on Basis of Duplicity, Dkt. 541; Mot. to Sever on Basis of Multiplicity, Dkt. 542; Mot. to Dismiss for Vindictive Prosecution, Dkt. 544; and Mot. for Joinder in Motions of Sperow and Weitzman, Dkt. 545 (nine motions including five motions to dismiss for vindictive prosecution, pre-indictment delay, speedy trial violation, improper venue; three motions in limine; and a motion to sever). Hearing on the motions was set for May 27, 2008. Order, Dkt. 570.
Throughout the briefing on the motions, Hammons, though counsel, engaged in plea negotiations with the Government. See, e.g., Government's Fourth Request for Additional Time to Respond to Pretrial Motions, Dkt. 583 (noting that there had been ongoing negotiations between the parties that could resolve the matter prior to trial or narrow the scope of motions to be resolved).
On May 23, 2008, prior to the hearing on the motions, the Government filed a signed Plea Agreement pursuant to which Hammons agreed to plead guilty to Count Five of the Second Superseding Indictment, the ITAR charge, and to the Information in Case No. 1:08-cr-00038-BLW charging him with Making False Statements to Obtain a Fraudulent Passport, in return for dismissal of the remaining counts of the Second Superseding Indictment. Plea Agreement, Dkt. 596. See also Corrected Plea Agreement, Dkt. 695 (docketed at a later date to include missing page).
In the Factual Basis portion of the Plea Agreement, Hammons agreed that between October 2000 and June 20, 2005, he "conspired with [co-Defendant] Kent Jones and others to distribute the proceeds of the drug trafficking enterprise, which conspiracy resulted in drugs (sic) proceeds being distributed in interstate commerce to Hammons, or on behalf of Hammons." Plea Agreement, ¶ III.C. He also agreed that he executed a passport application in the name of his deceased brother. Id. As relevant here, he agreed that the maximum term of imprisonment on Count Five was imprisonment for a term of not more than five years and that the maximum term of imprisonment on the fraudulent passport charge was likewise not more than five years. Id., IV.A. On June 10, 2008, Hammons entered his plea of guilty before Magistrate Judge Candy W. Dale. Min. Entry, Dkt. 622. See also Plea Hearing Tr., Dkt. 708.
The road from plea to sentencing was not an easy one. Defense counsel's vigorous objections to the Presentence Report led to protracted litigation including evidentiary hearings in the sentencing phase which ultimately concluded over one year after Hammons entered his plea. The Presentence Report grouped the ITAR and passport offenses and applied the drug guideline, § 2D1.1. The resulting offense level was 27 which, with a criminal history category of IV (including two prior federal drug convictions), yielded a guideline range of 100 to 120 months. Hammons objected to the offense calculation contending that the appropriate applicable guideline was the money laundering guideline, § 2S1.1. The Probation Officer disagreed and submitted the final Presentence Report to the Court with an offense level calculation based on § 2D1.1.
At the initial sentencing hearing date of October 17, 2008, Hammons continued his guideline argument, the Court listened to the tape of the plea hearing, decided that there was not a meeting of the minds, and allowed the parties to confer about how to proceed. The Court gave the Government the option of proceeding under § 2S1.1 or agreeing to allow Hammons to withdraw his plea. The Government indicated its agreement to proceed under § 2S1.1, but requested additional time to reassess the evidence to be presented. Min. Entry, Dkt. 694. The Government also indicated that it questioned whether Hammons would still be entitled to an adjustment for acceptance of responsibility. Id. The Court continued the hearing and directed counsel to file simultaneous briefs on the various sentencing issues. Id. Further briefing was allowed after the preparation of the plea hearing transcript. See Briefs, Dkts. 700, 701, 702, 711, 712.
On December 15, 2008, after reviewing the Plea Hearing transcript and the briefing, the Court found that there was no ambiguity in the Plea Agreement, that Hammons clearly pleaded guilty to distributing the proceeds of the drug trafficking enterprise, and that he did not, therefore, have an unqualified right to sentencing under § 2S1.1. Order, Dkt. 756. The Court continued:
However, out of an abundance of caution, recognizing that Defendant's liberty is at stake, the Court finds that there was no meeting of the minds at the time the parties entered the Plea Agreement. Therefore, Defendant shall have two options. First, he may withdraw from the Plea Agreement. Second, he may waive his right to contest the validity of his plea and proceed with sentencing pursuant to § 2S1.1 with the understanding that the Government may present evidence on both the amount and the acceptance of responsibility issues.
Order at 12, Dkt. 756.
Regarding the amount issue, the Government advised that it would seek to prove that Hammons had received $420, 000 in drug proceeds whereas Hammons advised that he would admit to having received only $2, 000. This difference was significant given that it resulted in a 14-level difference in the total offense level under the sentencing guidelines.
Defendant opted to proceed with sentencing under § 2S1.1. Notice to Proceed to Sentencing, Dkt. 757. Sentencing was set for April 17, 2009. Order, Dkt. 762. Prior to sentencing, each party filed additional argument. Dkts. 787; 791; 792. At the hearing, the Court heard testimony from Government witnesses Ron Nelson, Gregory Gleason, and Forest Gerald McDonald. Min., Dkt. 795. The hearing was to continue on May 15, 2009. However, the Government filed an unopposed motion for a 30-day continuance to interview a new witness or witnesses which the Court granted. Dkt. 821; 823. The matter was reset for June 23, 2009. Dkt. 831.
On June 23, 2009, the Court once again convened the sentencing hearing and received further testimony from Forest Gerald McDonald. Minutes, Dkt. 866. However, the matter was continued yet again to allow for video conference appearance of a defense witness and a Government witness. Minutes, Dkt. 866. The parties filed additional briefing/sentencing memoranda in advance of the newly set date of July 7, 2009, maintaining their respective positions regarding the amount. Dkts. 882, 885. The Court heard testimony by video conference of the two witnesses on July 7. Minutes, Dkt. 887. Sentencing concluded on July 10, 2009. Minutes, Dkt. 891.
Following the vigorously contested evidentiary hearing that occurred over a period of months, the Court sentenced Hammons to a term of 60 months in Case No. 1:06-cr-00126-BLW for the ITAR offense, in Case No. 1:08-CR-138-BLW to a term of 36 months for making false statements to obtain a fraudulent passport, and in Case No. 1:08-CR-319-BLW to a term of nine months for revocation of his term of supervised release in an unrelated federal case, all terms to run consecutively for a total sentence of 96 months. Respectively, Judgment, Dkt. 892; Judgment, Dkt. 27; and Judgment, Dkt. 19.
On June 14, 2010, nearly a year after sentencing, Hammons timely filed identical § 2255 Motions in each of the criminal cases alleging ineffective assistance of counsel for failure to file a notice of appeal of the sentence in the drug case. The Court dismissed the § 2255 Motions filed in the false statements case and the revocation case since the issue Hammons indicated he wanted to appeal related only to the portion of the sentence attributable to the ITAR charge. Mem. Dec. and Order, Dkt. 4 in each of Case Nos. 1:10-cv-00302-BLW, and 1:10-cv-303-BLW.
REVIEW OF § 2255 MOTION
In his § 2255 Motion, Hammons alleges ineffective assistance of counsel for failure to file a notice of appeal of the Court's determination of the dollar amount for which he was responsible in connection with the ITAR charge despite his request that counsel do so. He states that "[a]t sentencing, the sentencing Court gave me the option to file a Notice of Appeal, despite my conditional waiver of appeal, to appeal the amount of money that the government alleged I received versus the amount of money I claimed I was responsible for." § 2255 Motion, at 5. In his supporting Memorandum, he states that as part of the Plea Agreement, he "agreed to waive some of his appellate rights. Mem. at 2, Dkt. 1-1. He further correctly states that he waived the right to contest the validity of his guilty plea and proceed to sentencing. Id. at 3. He contends that he should have only been sentenced based on the $2, 000 he admitted to receiving rather than on the amount of $420, 000. Id.
In arguing that his attorney was ineffective for not filing a notice of appeal, Hammons states that "[w]hile the plea agreement limited the right to appeal issues that are irrelevant to this proceeding, [he] still preserved the right to file one direct appeal and the right to file one habeas petition under 28 U.S.C. § 2255." Id. at 6. He also claims that "counsel did not explain to [him] that regardless of his plea waiver he still preserved his right to appeal certain meritorious issues on appeal" and that "the Court gave [him] the right to appeal his sentence." Id. (quoting language from the Sentencing Hearing Transcript at page 53, ¶¶ 6-20).
Hammons "concedes that he waived most of his appellate rights in the plea agreement, " but contends that "this waiver assumed that counsel would adequately perform his job throughout the proceedings." Id. at 8. In reliance on United States v. Raynor, 989 F.Supp. 43 (D.D.C. 1997), he further states that he "did not waive his right to be sentenced correctly" and that "[u]ntil a sentence is imposed, a defendant cannot possibly know what it is he or she is waiving." Id. He claims prejudice in that he received a "much greater sentence than that advised by his attorney" and that "said sentence was then unappealable." Id. He requests that his conviction and sentence be vacated or in the alternative that his appellate rights be restored. Id.
In response, the Government contends that the waiver in the Plea Agreement was valid. It submitted an affidavit from Mr. Arkoosh stating that he had discussed the effect of the appellate waiver with Hammons and that Hammons ultimately directed him not to appeal because he was concerned that he could receive a harsher sentence if re-sentenced. The Government also submitted a copy of Mr. Arkoosh's letter to Hammons indicating that he had discussed with Hammons the "various limitations in the Plea Agreement to appeal" and the possible adverse consequences of appealing. The Government concludes that even if Mr. Arkoosh's performance had been deficient in not filing a notice of appeal, Hammons has failed to demonstrate prejudice in that he failed to demonstrate that there is a reasonable probability that he would have timely appealed if counsel had consulted with him.
In his Affidavit, Mr. Arkoosh states that in addition to discussing the appeal waiver language when reviewing the Plea Agreement, he met with Hammons on July 4, 6, 7, 8, 9, and 10, 2009 preparing for sentencing, discussing his options for appeal, and discussing how the Court and the AUSA might respond to an appeal. Arkoosh Aff., ¶¶ 1-8. He also referred to the July 16, 2009 letter to Hammons memorializing the conversations and stated that Hammons expressed his concerns that if he were to be resentenced he would get a harsher sentence. Id. at ¶ 10. Finally, Mr. Arkoosh states that after sentencing, Hammons directed him not to file an appeal. He never heard otherwise until the § 2255 was filed. Id.
In his Reply, Hammons claims "it should not matter that [he] waived his right to appeal his sentence and conviction as part of his plea agreement." Reply at 2. He notes that the waiver must be knowing and voluntary and that it can be invalidated based on ineffective assistance of counsel. He argues that waiver of appellate review of his sentence "is implicitly conditioned on the assumption that the proceedings following entry of the plea will be conducted in accordance with constitutional limitations." Id. at 3. However, none of the cases he cited stand for that proposition.
In a similar vein, in reliance on United States v. Raynor, 989 F.Supp. 43 (D.D.C. 1997), Hammons argues that plea agreements are unfair and should not be upheld as to a yet to be imposed sentence. Finally, Hammons concedes that he waived his appeallate rights in the Plea Agreement but states that the waiver "assumed that counsel would adequately perform his job throughout the proceedings." Id. He relied on counsel to ...