United States District Court, E.D. Virginia, Richmond Division
MEMORANDUM OPINION (ADOPTING REPORT AND
RECOMMENDATION AND DENYING AMENDED 28 U.S.C. § 2255
E. HUDSON UNITED STATES DISTRICT JUDGE.
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,
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.
FACTUAL AND PROCEDURAL BACKGROUND
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.)
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 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.)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.)
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).
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
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.)
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.)
and Recommendation 1-5 (alterations in original).)
STANDARD OF REVIEW AND BURDEN OF PROOF
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).
and Recommendation 5-6.)
FINDINGS OF FACT
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.
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.)
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.)
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. 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.)
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.
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.
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.
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.)
Marcelino's Plea Hearing
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.)
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.)
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.)
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.)
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
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
Mr. Marcelino: Yes.
(Guilty Plea Hr'g Tr. 9:3-16.)
Judge Lauck specifically questioned Marcelino about going
forward without a written plea agreement or written statement
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
Mr. Marcelino: Yes.
Plea Hr'g Tr. 11:21-12:2.)
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.)
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.)
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.
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.)
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.)
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