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United States v. Marcelino

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

September 22, 2016

UNITED STATES OF AMERICA
v.
ONESIMO MARCELINO, Petitioner.

          MEMORANDUM OPINION (REFERRING CLAIM ONE FOR AN EVIDENTIARY HEARING)

          HENRY E. HUDSON, UNITED STATES DISTRICT JUDGE.

         Onesimo Marcelino, a federal inmate proceeding pro se, submitted this motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence ("§ 2255 Motion, " ECFNo. 161).[1] Marcelino contends that he received ineffective assistance of counsel[2] in conjunction with his sentencing. Specifically, Marcelino demands relief because:

Claim One: Counsel rendered ineffective assistance post-plea by "specifically instructing 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 Government has responded, asserting that Marcelino's claim lacks merit. (ECF No. 171.) For the reasons set forth below, the Court will refer this matter to the Magistrate Judge to conduct an evidentiary hearing on Claim One.

         I. PROCEDURAL HISTORY

         On April 18, 2012, a Criminal Complaint was filed, charging Marcelino with conspiracy to receive and possess contraband cigarettes, in violation of 18 U.S.C. §§ 371 & 2342. (Criminal Compl. 1, ECF No. 4.) On May 2, 2012, a grand jury charged Marcelino 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). (Indictment 4-13, 14-17, ECF No. 19.) On June 25, 2012, Marcelino pled guilty without a written plea agreement to Counts Five and Eleven. (June 25, 2012 Tr. 2-3.) On October 1, 2012, the Court entered judgment against Marcelino and sentenced him to 132 months of imprisonment. (J. 2, ECF No. 98.)[3] Counsel Vaughan Jones represented Marcelino throughout these proceedings.

         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, " id., and "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).

         II. INEFFECTIVE ASSISTANCE OF COUNSEL

         To demonstrate ineffective assistance of counsel, a convicted defendant must show first, that counsel's representation was deficient and second, that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). To satisfy the deficient performance prong of Strickland, the convicted defendant must overcome the "'strong presumption' that counsel's strategy and tactics fall 'within the wide range of reasonable professional assistance.'" Burch v. Corcoran, 273 F.3d 577, 588 (4th Cir. 2001) (quoting Strickland, 466 U.S. at 689). The prejudice component requires a convicted defendant to "show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694. In analyzing ineffective assistance of counsel claims, it is not necessary to determine whether counsel performed deficiently if the claim is readily dismissed for lack of prejudice. Id. at 697.

         In the context of a guilty plea, the Supreme Court has modified this second prong of Strickland to require the convicted defendant to "show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59 (1985). Of course, in conducting the foregoing inquiry, the representations of the convicted defendant, his lawyer, and the prosecutor during the plea proceedings, "as well as any findings made by the judge accepting the plea, constitute a formidable barrier in any subsequent collateral proceedings." Blackledge v. Allison, 431 U.S. 63, 73-74 (1977). In light of the strong presumption of verity that attaches to a petitioner's declarations during his plea proceedings, "in the absence of extraordinary circumstances, allegations in a § 2255 motion that directly contradict the petitioner's sworn statements made during a properly conducted Rule 11 colloquy are always 'palpably incredible' and 'patently frivolous or false.'" United States v. Lemaster, 403 F.3d 216, 221 (4th Cir. 2005) (citations omitted). Thus, the Fourth Circuit has admonished that "in the absence of extraordinary circumstances, the truth of sworn statements made during a Rule 11 colloquy is conclusively established, and a district court should, without holding an evidentiary hearing, dismiss any § 2255 motion that necessarily relies on allegations that contradict the sworn statements." Id. at 221-22. No circumstances exist here that would lead the Court to consider Marcelino's prior sworn statements as other than truthful.

         In Claim One, Marcelino contends that counsel rendered ineffective assistance post-plea by "specifically instruct[ing Marcelino] to remain silen[t]" with respect to the extent of his criminal activity. (Mem. Supp. § 2255 Mot. 2.) According to Marcelino, counsel "advised [him] to plead guilty with an assurance that he would receive points for acceptance of responsibility." [Id. at 2.) Marcelino claims that counsel told him "that if he pleaded the Court would grant acceptance of responsibility but that the Government controlled the third point." [Id. at 14.) Marcelino told counsel "that he would accept responsibility for his involvement in the offense." [Id. at 13.) Counsel agreed "and instructed Marcelino not to detail the facts of the case to the probation department." [Id.) Marcelino claims that "[a]s [he] understood the communications with [counsel] he had done exactly as his attorney had instructed." [Id.) Marcelino contends that because he followed counsel's advice, the Court denied him a reduction for acceptance of responsibility at sentencing. [Id. at 3.)

         During Marcelino's Rule 11 proceedings, Marcelino indicated that he understood that the Court would consider "a whole set of factors" under the Sentencing Guidelines, "including] information about acceptance of responsibility, which the government indicated there may be a dispute about here." (June 25, 2012 Tr. 12, ECF No. 121.) After Marcelino entered his pleas of guilty to Counts Five and Eleven (June 25, 2012 Tr. 15), the AUSA provided a basis in fact for Marcelino's pleas. (June 25, 2012 Tr. 47- 56.) Notably, the AUSA indicated that:

Your Honor, had this matter gone to trial, the evidence would have dealt first with the cigarette taxing scheme. The Commonwealth of Virginia, the State of New York, and the city of New York all require that cigarettes that are trafficked and transported through those jurisdictions have a tax that's paid on them. And the way that tax is paid is by having a stamp affixed to each pack of cigarettes. If there's no stamp on the cigarettes, there's no tax paid. The one exception to this is there is carved out in the statute certain types of individuals who are permitted to transport and distribute the cigarettes without the stamps. But the evidence would have been that none of the-neither the defendant nor any of the other members of the conspiracy fell within any of those carved out groups.
In addition, Your Honor, the evidence would have been that well before this conspiracy began, the Bureau of Alcohol, Tobacco, Firearms and Explosives was engaged in an undercover operation selling untaxed contraband cigarettes out of a warehouse in Ashland, Virginia. They would sell them in master cases. And a master case, each master case contains 60 cartons of cigarettes, each carton of cigarettes contains 200 cigarettes, for a total in a master case of 12, 000 cigarettes. The significance of this is that the statute prohibits the trafficking in ...

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