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United States v. Bassett

United States District Court, D. Maryland

June 16, 2016

JOSEPH BASSETT Criminal No. WMN-11-512


          William M. Nickerson Senior United States District Judge

         Defendant Joseph Bassett pled guilty to possession of a firearm by a convicted felon and was sentenced by Judge William Quarles as an armed career criminal to the mandatory minimum sentence of fifteen years as prescribed by 18 U.S.C. § 924(e). Defendant appealed his sentence and the United States Court of Appeals for the Fourth Circuit affirmed the judgment of the district court in an unpublished opinion. United States v. Joseph Bassett, 517 Fed. App’x 164 (4th Cir. Apr. 4, 2013), cert. denied, 134 S.Ct. 238 (2013). Defendant has now filed a Motion under § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody, raising two grounds for relief. ECF No. 60.[1] First, Defendant claims he received ineffective assistance of counsel in violation of the Sixth Amendment of the United States Constitution. Second, Defendant asserts that he is no longer an armed career criminal in light of the Supreme Court’s decision in Descamps v. United States, 133 S.Ct. 2276 (2013). The Government responded to Defendant’s motion, ECF No. 68, and Defendant subsequently filed a reply. ECF No. 69. Upon review of the pleadings and the applicable case law, the Court finds Defendant’s claims are without merit; therefore, his motion will be dismissed without a hearing.[2]

         1. Ineffective Assistance of Counsel

         Defendant claims he received ineffective assistance from trial counsel at his Rule 11 hearing and sentencing hearing, and additionally, that his appellate counsel was ineffective for failing to raise issues regarding those hearings on direct appeal. To obtain relief under § 2255 based on ineffective assistance of counsel, a Defendant has the burden of demonstrating (1) that he received ineffective assistance of counsel, and (2) that he was prejudiced by that ineffective assistance. Strickland v. Washington, 466 U.S. 668, 687 (1984). To satisfy the first prong, a defendant must prove that his attorney’s conduct violated the Sixth Amendment by falling below the reasonable standard of conduct expected of attorneys. See id., (finding petitioner must show that his counsel’s performance was not “within the range of competence demanded of attorneys in criminal cases”). There is a strong presumption that counsel’s conduct was within the wide range of reasonable professional assistance. Id. at 689. To satisfy the second prong of Strickland, a defendant must demonstrate that there exists “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” United States v. Fugit, 703 F.3d 248, 259 (4th Cir. 2012) (quoting Strickland, 466 U.S. at 687-688). A defendant who advances an ineffective assistance of counsel claim following the entry of a guilty plea has a higher burden; “[s]uch a defendant ‘must 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.’” Hooper v. Garraghty, 845 F.2d 471, 475 (4th Cir. 1988) (quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985)).

         A. Rule 11 Hearing

         Rule 11 prohibits a trial court from accepting a plea of guilty without first determining that the defendant understands the consequences of his plea. Defendant claims he received ineffective assistance of counsel because his trial attorney failed to object to and his appellate attorney failed to raise issues concerning the Court’s violation of Federal Rules of Criminal Procedure 11(b)(1)(A), 11(b)(1)(H), and 11(b)(1)(I) at his Rule 11 hearing.[3] The Government asserts “that any challenge to the [Defendant’s] guilty plea on the theory that it was unknowing or involuntary, or an appeal on that basis, would have been futile.” ECF No. 68 at 5. The Court agrees.

         i. Failure to Comply with Rule 11(b)(1)(A)

         At the Rule 11 hearing, Defendant was placed under oath but was not informed of the Government’s right to use against him any statement made under oath in a prosecution for perjury or false statement. ECF No. 60 at 9-10. Pursuant to Rule 11(b)(1)(A),

(1) Before the court accepts a plea of guilty or nolo contendere, the defendant may be placed under oath, and the court must address the defendant personally in open court. During this address, the court must inform the defendant of, and determine that the defendant understands, the following:
(A) the government’s right, in a prosecution for perjury or false statement, to use against the defendant any statement that the defendant gives under oath.

         Defendant asserts that because he was not properly placed under oath, he should be given the opportunity to plead anew. ECF No. 60 at 11. The Fourth Circuit rejected a claim virtually identical to Defendant’s in United States v. White, 572 F.2d 1007 (4th Cir. 1978). In White, the defendant claimed her guilty plea was rendered invalid and involuntary because she was not sworn and interrogated under oath as required by Rule 11(c)(5), the predecessor of Rule 11(b)(1)(A). Id. at 1008. The Fourth Circuit found that the question before the court was not simply whether the perjury advisory component of Rule 11 was observed, but rather, whether the defendant “suffered prejudice of constitutional magnitude as a result of non-observance of the rule.” Id. at 1009.

         The Fourth Circuit held that the defendant was not entitled to relief under § 2255 as a result of the district court’s failure to comply with Rule 11(c)(5);

[i]t would be difficult enough to posit a case in which a defendant who otherwise concluded to plead guilty would be encouraged or discouraged to tender his plea by lack of knowledge that he may be interrogated under oath under penalty of perjury by the district court. Such knowledge, or the lack thereof, simply does not go to the voluntariness of the plea.

Id. In so finding, the court noted that the legislative history of the perjury advisory establishes that “[f]airness, not voluntariness, is the concept underlying Rule 11(c)(5).” Id. at 1009 n.4. Because the defendant was never interrogated under oath, the court found that the voluntariness of her plea could not be “affected by knowledge of what might, but did not, happen.” Id. at 1009. This Court agrees that when no subsequent perjury prosecution takes place, the failure to advise a defendant under Rule 11(b)(1)(A) has no effect on that defendant’s rights. See, e.g., United States v. Smith, 204 Fed. App’x 298, 299 (4th Cir. 2006)(finding the district court’s failure to inform defendant that any false statement could be used against him in a prosecution for perjury did not affect his substantial rights); United States v. Adams, 30 Fed. App’x 604, 605-606 (7th Cir. 2002)(rejecting the defendant’s guilty plea challenge for failure to warn about the possible use of sworn statements in a later prosecution, and noting previous case law finding that such errors are deemed harmless where “there is no suggestion of a current or prospective prosecution for perjury”).

         Defendant relies on United States v. Gause, a case where, despite the district court’s failure to meet the perjury advisory requirement of Rule 11, the Fourth Circuit held that the defendant’s substantial rights were not affected “because he agreed in his plea agreement that the Government could use any of his statements under oath against him.” 170 Fed. App’x 294, 295 (4th Cir. 2006). Defendant attempts to distinguish his case from Gause on the ground that unlike the defendant in that case, he never entered into a plea agreement. ECF No. 60 at 10. As stated above, whether or not the perjury advisory was properly delivered by the court or reduced to writing in a plea agreement, the significance of that advisory would come into play, if at all, if the Defendant were charged with perjury in connection with his Rule 11 hearing. Defendant has never been charged with perjury, thus, the Court’s ...

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