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United States v. Marcelino

United States District Court, E.D. Virginia, Richmond Division

September 25, 2012




         Onesimo Marcelino, a federal inmate, filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255, wherein he claimed that counsel was ineffective by "specifically instruct[ing Marcelino] to remain silen[t]" with respect to the extent of his criminal activity, which led to the Court denying Marcelino a reduction for acceptance of responsibility at sentencing. (Mem. Supp. § 2255 Mot. 2-3, ECF No. 162.) By Memorandum Opinion and Order entered on September 23, 2016, the Court referred that claim to the Magistrate Judge for an evidentiary hearing. United States v. Marcelino, No. 3:12CR77-HEH, 2016 WL 5339727, at *6 (E.D. Va. Sept. 23, 2016).

         Subsequently, the Magistrate Judge appointed counsel to represent Marcelino and granted counsel leave to file an amended motion pursuant to § 2255 ("Amended § 2255 Motion, " ECF No. 205). The matter is before the Court for review of the Magistrate Judge's proposed findings, set forth below in Parts I through V, and Marcelino's objections to those findings. The Court has reviewed the record, including the transcript of the evidentiary hearing conducted by the Magistrate Judge. For the reasons set forth below, the Report and Recommendation will be accepted and adopted.


         On April 18, 2012, four Criminal Complaints were filed, charging Marcelino and three others-Mohamed Labidi, Wissem Ayachi, and Joe Ovalles-with conspiracy to receive and possess contraband cigarettes, in violation of 18 U.S.C. §§ 371 & 2342. (Criminal Compls. 1, ECF Nos. 1, 2, 3, 4.) Labidi and Ayachi also faced drug charges. (Id.) At the initial appearance, it was noted that an interpreter would be provided for Marcelino throughout the proceedings. (ECF No. 5.) Marcelino retained Vaughan Jones ("Jones") to represent him, and Jones appeared at the preliminary and detention hearings on April 23, 2012. (ECF No. 12.) On May 2, 2012, a grand jury charged Marcelino and the same three co-defendants with conspiracy to ship, transport, receive, possess, sell, distribute, and purchase contraband cigarettes, in violation of 18 U.S.C. §§371 & 2342 (Count Five), and conspiracy to commit money laundering, in violation of 18 U.S.C. § 1956(h) (Count Eleven). The three co-defendants faced additional charges. (Indictment, ECF No. 19.) All four defendants were arraigned on May 14, 2012, and their jury trial was scheduled for July 9, 2012. (Docket Entry dated May 3, 2012; ECF No. 21.)

         On June 18, 2012, the Court was informed that Marcelino would plead guilty, so the Court scheduled a plea hearing before then United States Magistrate Judge M. Hannah Lauck[1] for June 19, 2012. (Docket Entry, June 18, 2012.) The parties appeared in the courtroom but, due to an inability to reach an agreement regarding the language in the proposed written statement of facts, the plea hearing was cancelled prior to Judge Lauck taking the bench. (Docket Entry, June 19, 2012; Evid. Hr'g Tr. 68:9-71:3, ECF No. 209.) Defendants Ovalles, Labidi, and Ayachi pled guilty on June 21, 22, and 22, respectively. (ECF Nos. 26-42.) On June 21, 2012, counsel for Marcelino and counsel for the United States asked the Court to reschedule Marcelino's plea hearing, and a plea hearing was scheduled for June 25, 2012. (Docket Entry, June 21, 2012.) On June 25, 2012, Marcelino pled guilty to Counts Five and Eleven before Judge Lauck without a written plea agreement or a written statement of facts. (Guilty Plea Hr'g Tr. 2-3, ECF No. 121.) On that same date, Judge Lauck issued a Report and Recommendation on Marcelino's pleas of guilty. (ECF No. 45.) On July 9, 2012, United States District Judge Henry E. Hudson adopted the Report and Recommendation and accepted Marcelino's guilty pleas. (ECF No. 47.) On September 28, 2012, Marcelino was sentenced by Judge Hudson to 60 months on Count Five and 132 months on Count Eleven, to be served concurrently. (ECF No. 93.) Judge Hudson also ordered Marcelino to pay $5, 088, 540.00 in restitution pursuant to the Restitution Order entered on the same date. (ECF No. 94.) The Judgment in a Criminal Case was entered on October 1, 2012. (J. 2, ECF No. 98.)[2]Counsel Vaughan Jones represented Marcelino throughout these proceedings but, on October 3, 2012, the Court received a letter from Jones advising the Court that his license to practice law had been suspended for two months, beginning on October 1, 2012. (ECF No. 100.) As a result, Jones stated, he could not continue to represent Marcelino and, since Marcelino indicated that he wished to appeal the Court's rulings at the sentencing hearing, Jones requested that the Court appoint new counsel. (Id.) W. Edward Riley was appointed to represent Marcelino on appeal, but thereafter, according to the record in the United States Court of Appeals for the Fourth Circuit, Marcelino retained Kenneth Ravenell to represent him on appeal. (ECF No. 102.)

         On appeal to the United States Court of Appeals for the Fourth Circuit, Marcelino argued that "his conviction on the money laundering count 'merged' with his conviction for contraband cigarettes . . . such that the 132-month sentence imposed on the former count was improper." United States v. Marcelino, 537 F.App'x 217, 219 (4th Cir. 2013). Marcelino also argued "that the district court erred in denying his objections seeking acceptance of responsibility, " and he "contest[ed] the enhancement he received for his leadership role." Id. The Fourth Circuit concluded that Marcelino's merger argument was waived because "[b]y pleading guilty . . . Marcelino admitted that he engaged in conduct that satisfied the elements for convictions under both the contraband cigarettes count and the money laundering count." Id. The Fourth Circuit also concluded that this Court "did not clearly err when it denied both of Marcelino's objections at sentencing." Id. at 220. The United States Supreme Court denied Marcelino's petition for a writ of certiorari. Marcelino v. United States, 134 S.Ct. 968 (2014).

         On July 15, 2014, the Court received Marcelino's initial § 2255 Motion and memorandum in support asserting that his trial counsel was ineffective. (§ 2255 Motion 1, ECF Nos. 161, 162.) The claim set forth in the initial § 2255 Motion and memorandum in support was:

Claim One: Counsel rendered ineffective assistance post-plea by "specifically instruct[ing Marcelino] to remain silen[t]" with respect to the extent of his criminal activity. Because Marcelino followed this advice, the Court denied him a reduction for acceptance of responsibility at sentencing. (Mem. Supp. § 2255 Mot. 2-3, ECF No. 162.)
The United States responded (ECF No. 171), and a Memorandum Opinion and Order were issued on September 23, 2016, referring Claim One for an evidentiary hearing. (ECF Nos. 181, 182). The Court appointed counsel to represent Marcelino with regard to the § 2255 proceeding, and the evidentiary hearing was scheduled for January 26, 2017. (ECF Nos. 183, 185; Docket Entry dated September 23, 2016.) Thereafter, by counsel, Marcelino sought to amend his § 2255 Motion. (ECF Nos. 190, 198, 200). The Court granted the motion to amend, and the Amended Motion to Vacate, Set Aside, or Correct a Sentence (ECF No. 205) was filed, supplanting the initial § 2255 Motion. The claim in the Amended § 2255 Motion is as follows:
Mr. Marcelino's Sixth Amendment right to effective assistance of counsel was violated because Mr. Jones provided unreasonable advice regarding the consequences of his actions with respect to receiving a reduction in his offense level under U.S.S.G. § 3E1.1 for acceptance of responsibility.
A. Mr. Jones performance was ineffective if he advised Mr. Marcelino that all he needed to do in order to receive a reduction for acceptance of responsibility was to plead guilty.
B. Mr. Jones's performance was ineffective when he allowed Mr. Marcelino to admit to all of the facts proffered by the government at the plea hearing without objection.
C. Mr. Jones's performance was ineffective when he allowed Mr. Marcelino to attempt to minimize or deny some of the facts admitted to at the plea hearing and did not advise him that doing so would cost him any chance of receiving a reduction for acceptance of responsibility.

(Amended § 2255 Motion 13, 15, 17, 20, ECF No. 205.)

         On April 4, 2017, the evidentiary hearing was rescheduled for June 26, 2017. (ECF No. 206). The evidentiary hearing was held, the transcript was filed, and the parties have filed their proposed findings of fact and conclusions of law. (ECF Nos. 208, 209, 212, 213.)

         (Report and Recommendation 1-5 (alterations in original).)


         A petitioner collaterally attacking his or her conviction bears the burden of proving that the conviction imposed violated the United States Constitution or laws, that the court lacked jurisdiction to impose such a sentence, that the sentence exceeded the maximum authorized by law, or that the sentence otherwise is subject to collateral attack. 28 U.S.C. § 2255. The petitioner has the burden of proving the grounds for the collateral attack by a preponderance of the evidence. Vanater v. Boles, 371 F.2d 898, 900 (4th Cir. 1967); White v. United States, 352 F.Supp.2d 684, 686 (E.D. Va. 2004). In a § 2255 proceeding, a court may hold an evidentiary hearing to "determine the issues and make findings of fact and conclusions of law." 28 U.S.C. § 2255(b). When making findings of fact, the court should determine the credibility of witnesses and reliability of other evidence. See United States v. Roane, 378 F.3d 382, 393-94, 409 n.15 (4th Cir. 2004).

         (Report and Recommendation 5-6.)


         Supplementing the procedural events above, the Court makes the following findings of fact based on the record, as well as the testimony and exhibits submitted at the evidentiary hearing.

         A. Plea Negotiations

         1. Marcelino and Jones reviewed the discovery provided to the defense by the United States, discussed the case numerous times prior to Marcelino's guilty plea, and discussed whether it made sense to go to trial or to plead guilty. (Evid. Hr'g Tr. 56:10-24, ECF No. 209.)

         2. Marcelino "was adamant that he wanted to plead guilty" because "he understood that he did not have a viable defense." (Evid. Hr'g 57:1-8.) Jones agreed that Marcelino should not go to trial, even though Marcelino had several "points of contention" with the evidence and theory of the case of the United States. (Evid. Hr'g Tr. 56:25-59:19.)

         3. Jones began plea negotiations with the United States. Some of the plea negotiations are reflected in emails exchanged between Jones and counsel for the United States, Stephen Miller. Those emails were filed at the evidentiary hearing as Defendant's Exhibits 1, 2 & 4.[3] The discussions included the following points of contention: the quantity of cigarettes Marcelino sold, where the cigarettes were sold, Marcelino's role with regard to his co-defendants, the amount of restitution Marcelino would be ordered to pay, and the possibility of credit for acceptance of responsibility, all of which would impact the calculations of the United States Sentencing Guidelines with regard to Marcelino. (Evid. Hr'g Tr. 59:22-65:4.)

         4. Jones was aware that the attempt to secure a credit for acceptance of responsibility for Marcelino "in some ways conflicted with his other endeavor, which was to not be held to be a leader because he did not ever acknowledge that, and to [limit] the amount of tax loss." (Evid. Hr'g Tr. 65:25-66:3.) Jones realized that this was like walking a tightrope-attempting to secure acceptance of responsibility for Marcelino but also to keep the Sentencing Guidelines calculations regarding Marcelino's offense level as low as possible and to minimize the amount of restitution Marcelino would be ordered to pay. (Evid. Hr'g Tr. 64:23-66:10.)

         5. Jones understood that it was going to be difficult for Marcelino to receive credit for acceptance of responsibility, and he warned Marcelino about this and told him that it was not guaranteed even if he pled guilty. (Evid. Hr'g Tr. 66:10-67:13.)

         6. Jones and counsel for the United States attempted to craft a written statement of facts to which both attorneys and Marcelino would agree, but upon reviewing the proposed written statement of facts just prior to the scheduled plea hearing on June 19, 2012, an agreement could not be reached regarding a written statement of facts, in particular, paragraph 11 of the proposed written statement of facts, and the plea hearing was cancelled. (Evid. Hr'g Tr. 67:14-71:3.)

         7. Shortly thereafter, Jones and counsel for the United States resumed their efforts to negotiate a plea deal and ultimately agreed that there would be no written statement of facts because, although Marcelino wanted to plead guilty and was willing to admit to the two charges against him in the indictment, he was not willing to agree to the written version of facts insisted upon by counsel for the United States. (Evid. Hr'g Tr. 71:4- 74:19.)

         B. Marcelino's Plea Hearing

         8. On June 25, 2012, Judge Lauck conducted Marcelino's plea colloquy, during which Marcelino pled guilty to the two counts in which he was charged in the Indictment, Counts Five and Eleven, without a written plea agreement or a written statement of facts. (Guilty Plea Hr'g Tr., ECF No. 121.)

         9. Shortly after the plea hearing began, counsel for the United States made the following statement regarding the possibility of credit for acceptance of responsibility:

And I just want to put on the record I don't think that there's anything the Court needs to do with that, but I want it clear on the record the United States has concerns about the candor of the defendant, and so by this agreement -or by this plea, we are not agreeing that the defendant is entitled to any points for acceptance of responsibility. And I've already notified defense counsel that we are not interested in debriefing or the cooperation of the defendant, and there will be no substantial assistance motion.

(Guilty Plea Hr'g Tr. 3:16-25.)

         10. Later during the plea colloquy, Judge Lauck referred back to the statement by counsel for the United States when addressing how Marcelino's sentence would be determined, including acceptance of responsibility:

The Court: And do you know there are a whole set of factors that can be considered, and have to be considered, under the guidelines. They include information about acceptance of responsibility, which the government indicated there may be a dispute about here. But it includes a whole set of factors that can affect your recommended guideline range up or down; do you understand that?
Mr. Marcelino: Yes.

(Guilty Plea Hr'g Tr. 12:15-23.)

         11. Judge Lauck informed Marcelino early during the colloquy that "if at any time I'm asking you something and you're not sure what I'm trying to ask, interrupt me and speak to your lawyer before you give me an answer." She also informed him that he could withdraw his plea any time before it was accepted. Marcelino did, at times, request clarification of something Judge Lauck was asking. (Guilty Plea Hr'g Tr. 5:1-2, 6:6-15, 7:12, 25:5.)

         12. Under oath at the plea hearing, Judge Lauck questioned Marcelino several times about his opportunities to consult with Jones prior to entering guilty pleas to the two charges. Marcelino informed Judge Lauck that he had a sufficient opportunity to discuss the case with Jones and that he was satisfied with Jones's representation:

The Court: Have you had a sufficient opportunity to discuss with your attorney everything about your case, including any possible defenses, as well as discussing the decision of whether or not to plead guilty?
Mr. Marcelino: Yes.
The Court: Have you discussed with your attorney how your sentence will be determined? Have you talked about the sentencing guidelines?
Mr. Marcelino: Yes.
The Court: Are you entirely satisfied with what your attorney has done for you? Do you believe that Mr. Jones has done all you needed so you can make an informed choice about how to proceed?
Mr. Marcelino: Yes.

(Guilty Plea Hr'g Tr. 9:3-16.)

         13. Judge Lauck specifically questioned Marcelino about going forward without a written plea agreement or written statement of facts.

The Court: All right. Now, you're proposing, Mr. Marcelino, to go forward pleading just to the indictment without a plea agreement or statement of facts in place, and I want to confirm did you have enough time to speak to your attorney about that choice, about pleading with or without a plea agreement?

Mr. Marcelino: Yes.

         (Guilty Plea Hr'g Tr. 11:21-12:2.)

         14. Marcelino confirmed that he decided to plead guilty to the charges because he was in fact guilty of both charges. (Guilty Plea Hr'g Tr. 11:11-14.)

         15. Since there was no agreed-upon written statement of facts, Judge Lauck requested that counsel for the United States provide "the basis in fact" for the pleas, and counsel for the United States then set forth a lengthy and detailed proffer of the facts. (Guilty Plea Hr'g Tr. 15:15-24:23.) Expert witness for Marcelino at the evidentiary hearing, Gerald Zerkin, testified that the proffer was "unusually long." (Evid. Hr'g Tr. 135:13-19.)

         16. Upon completion of the proffer, Judge Lauck then asked Marcelino: "All right, Mr. Marcelino, is that what happened?" Marcelino responded: "Yes." Then, the following exchange took place:

The Court: Is there anything about what the prosecutor offered as the basis of statement of fact that you would contest any part of it?
Mr. Marcelino: One-one second, please.
Mr. Jones: Your Honor, Mr. Marcelino wholeheartedly accepts his responsibility for the facts that are stated in the indictment. Mr. Marcelino would add that he was not the sole customer for Mr. Labidi and Mr. Ayachi in their sale of contraband cigarettes. He wholeheartedly accepts that he did buy contraband cigarettes, that he did sell contraband cigarettes, and that it was to the financial detriment of the United States of America.
The Court: All right. Well, Mr. Marcelino, the fact that you may or may not have been the only customer is not inconsistent, but the fact that you were the customer as articulated, or at least a participant as articulated by Mr. Miller in the courtroom today. And I know, Mr. Jones, I don't mean to be picky about sort of what you said, but what you said is that he's accepting what happened in the indictment, and so what I-what I have in front of me by way of a basis in fact is what Mr. Miller said today. So I want to confirm, Mr. Marcelino, is there anything in what Mr. Miller said today about what happened that is-that you are not- you are saying is not true?
Mr. Marcelino: No.
The Court: So, are you pleading guilty because you are guilty of what he just said?
Mr. Marcelino: Yes.
The Court: All right. Then I can make the findings of guilt, sir. So this would be your last opportunity to withdraw your two guilty pleas. Are you prepared for me to go ahead and make my finding?
Mr. Marcelino: Yes.

         The Court then found Marcelino competent to enter an informed plea, found the pleas to be knowing and voluntary and supported by an independent basis in fact, accepted the pleas, and found Marcelino guilty of the two offenses with which he was charged. (Guilty Plea Hr'g Tr. 24:24-26:21.)

         17. Jones made the statement to the Court set forth immediately above in order to attempt to limit Marcelino's exposure with regard to offense level, but Judge Lauck then asked Marcelino directly again if there was anything that Mr. Miller said that Marcelino would say is not true. Marcelino, with no prompting from Jones, answered "no." (Evid. Hr'g Tr. 75:2-79:25.)

         18. Judge Lauck told Marcelino in great detail how his sentence would be determined, that the sentencing judge would determine his sentence advised by the Sentencing Guidelines and other factors, and that the sentencing judge could depart upward or downward from the advisory range under the Sentencing ...

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