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Marcantoni v. United States

United States District Court, D. Maryland

July 15, 2016

ANTHONY MARCANTONI, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent. Criminal Case No. RWT-10-0777

          Anthony J. Marcantoni, Petitioner, represented by Jeremy Brian Gordon, Law Office of Jeremy Gordon.

          USA-2255, Respondent, represented by Sumon S. Dantiki, United States Attorney's Office.

          MEMORANDUM OPINION

          ROGER W. TITUS, District Judge.

         Petitioner seeks an evidentiary hearing and discovery to resolve issues raised in his Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255. ECF No. 982. He argues his counsel was ineffective in three respects: 1) in permitting Petitioner to enter into a Plea Agreement involuntarily and unknowingly by failing to seek a continuance to allow them to fully explain the Plea Agreement to him; 2) in failing to seek suppression of wiretap evidence on the grounds that the Government found the wiretapped line through the warrantless use of a cell site simulator; and 3) in failing to object to a factual disparity between the Indictment and Petitioner's presentence report.

         BACKGROUND

         On May 2, 2012, Petitioner Anthony Marcantoni was charged in two counts of a Second Superseding Indictment that brought sixteen counts against ten defendants for their involvement in a large drug conspiracy in Maryland. ECF No. 341. The two counts naming Petitioner were:

         (1) Count One: distributing and possessing with the intent to distribute 1, 000 kilograms or more of a mixture or substance containing a detectable amount of marijuana; and (2) Count Sixteen: distributing and possessing with intent to distribute a mixture and substance containing marijuana. ECF No. 341, at 2-6, 23. In his sworn declaration, Petitioner stated, "From the outset, I advised counsel that I had no interest in pleading guilty and that I requested a trial." ECF No. 982-3, at 1 ¶ 3. On June 22, 2012, Petitioner pleaded "Not Guilty" on both counts. ECF No. 402. Petitioner was then on course to participate in an eight-week trial scheduled to begin on September 11, 2012. ECF No. 188.

         On August 30, 2012, Petitioner's counsel moved to suppress evidence obtained and derived from a wiretap on "Line J, " claiming the wiretap was unlawful. ECF No. 427. The Court conducted a hearing regarding the Line J wiretap on September 10, 2012, the day before the trial was scheduled to commence and denied the motion. ECF No. 982-4, at 2 ¶ 9.

         The same day the Court denied Petitioner's motion to suppress, the Government filed a notice pursuant to 21 U.S.C. § 851(a) that it would seek enhanced penalties against Petitioner under 21 U.S.C. § 841. ECF No. 453. The notice informed Petitioner that as a result of his prior conviction, [1] he faced a mandatory minimum of twenty years' imprisonment with at least ten years' supervised release if the drug quantity was found to be 1, 000 kilograms or more. Id. If the drug quantity was found to be less than 1, 000 kilograms but more than 100 kilograms, he faced a mandatory minimum under § 841(b)(1)(B) of ten years' imprisonment with at least eight years' supervised release. Id.

         On the morning trial was to commence, Petitioner received a plea offer from the Government with a deadline of 9:00 AM that morning. ECF No. 459. The Plea Agreement would allow Petitioner to avoid the risk of a mandatory twenty-year sentence. Id. The Stipulated Facts established the quantity of marijuana as less than 1, 000 kilograms but more than 700 kilograms. Id. With this quantity, Petitioner would be subject to the ten-year mandatory minimum sentence rather than the twenty-year minimum he would have faced if the jury determined the quantity involved was 1, 000 kilograms or more at trial. Id.

         By the time Petitioner's counsel had received the written Plea Agreement and presented it to Petitioner in his holding cell, they had twenty minutes to explain to Petitioner the new mandatory minimums he faced following the § 851 notice, the provisions of the Plea Agreement, the Stipulated Facts attached to it, and the legal requirements of Rule 11. ECF No. 982-4, at 2-5 ¶¶ 15-38. Petitioner "peppered" his counsel with questions regarding these issues, causing his counsel to become concerned that he "failed to appreciate all material elements of the Plea Agreement." Id. at 3 ¶¶ 20, 22. These concerns notwithstanding, Petitioner's counsel believed the Plea Agreement to be "the most appropriate disposition" for the Petitioner based on the denial of the motion to suppress the Line J wiretap evidence, [2] so they recommended he accept the offer and sign the Plea Agreement. Id. at 4 ¶ 33. Petitioner signed the Plea Agreement and attached Stipulated Facts, as did his counsel. ECF No. 459, at 9. The Rule 11 proceeding commenced at approximately 9:30 a.m. ECF No. 994-3, at 1.

         At the Rule 11 proceeding, the Court asked Petitioner if he had read the Plea Agreement and discussed its contents with his attorneys. ECF No. 994-3, at 7. Petitioner answered that he had. Id. The Court asked if he believed he understood the provisions of the Plea Agreement, and Petitioner said he did. Id. After affirming Petitioner had affixed his signature to the Plea Agreement and Stipulated Facts, the Court asked the Government to summarize the essential provisions of the Plea Agreement to "make sure nothing was overlooked" when Petitioner read them. Id. at 8.

         The Government summarized the key provisions of the Plea Agreement. Id. at 8-13. Under the Plea Agreement, Petitioner agreed to plead "Guilty" to Count One of the Second Superseding Indictment, with the factual stipulation that the quantity of marijuana was between 700 and 1, 000 kilograms instead of the 1, 000 kilograms or more as he was charged in the indictment. Id. at 9-10. The Government agreed to dismiss the charges under Count Sixteen of the Second Superseding Indictment. Id. at 11. Petitioner also agreed to forfeit a Rolex watch and $500, 000. Id. The Government summarized the waiver of his rights to appeal and the other essential provisions in the Plea Agreement. Id. at 12-13.

         The Court then asked Petitioner if he had any concerns or misunderstood any aspect of the Plea Agreement as summarized by the Government. Id. at 13. Petitioner said he understood the description, but was confused about the length of supervised release in relation to the § 851 Notice. Id. The Court and the Government clarified why eight years' supervised release was the statutory minimum, and Petitioner said he understood. Id. at 17.

         The Court asked if anybody had threatened or forced Petitioner to plead guilty. Id. at 19. Petitioner responded, "Just with the 20-year mandatory minimum. That's about it." Id. The Court asked Petitioner if anyone had made any threats "other than the prosecutor promising to prosecute you, " and the Petitioner said, "No, Your Honor." Id. The Court then explained the mechanism of the Sentencing Guidelines and its relation to the mandatory minimum sentence. Id. at 22-24. Petitioner said he understood this explanation. Id. at 24. The Court explained the sentencing process, describing the factors the Court must and will consider at the time of Petitioner's sentencing. Id. at 25-26. Petitioner again verbally confirmed he understood the Court's explanation. Id. at 26. The Court enumerated the rights Petitioner agreed to waive in the Plea Agreement and asked if Petitioner understood those rights and what the waiver of them meant. Id. at 26-30. Petitioner expressed his understanding of each of the rights and the implications of waiving them. Id.

         The Court then asked the Government to present the Stipulated Facts. Id. at 31. Following the Government's presentation of the Stipulated Facts, Petitioner said he did not know some of the people listed in the Stipulated Facts as his co-conspirators. Id. at 33-35. After the Government insisted on the need for Petitioner to admit all facts were true as stipulated, the Court called for a brief recess to allow Petitioner to confer with his counsel. Id. at 36. After returning, Petitioner said he felt "like the Government is squeezing me to try to figure out who I know and who I don't know." Id. at 42. After a second recess, the Court asked Petitioner to answer whether the people listed were his co-conspirators, and Petitioner admitted that they were and indicated he had no further objections to the Stipulated Facts. Id. at 42. The Court asked if there was anything about that day's proceedings Petitioner did not understand, and Petitioner responded, "No." Id. at 43. The Court then accepted Petitioner's guilty plea and the Plea Agreement and scheduled his sentencing hearing. Id. at 45.

         On December 13, 2012, the Court sentenced Petitioner to 121 months' imprisonment, eight years' supervised release, and a special assessment. ECF No. 619. Petitioner filed a Notice of Appeal the following week. ECF No. 629. The Fourth Circuit affirmed the conviction. United States v. Marcantoni, 568 Fed.Appx. 229 (4th Cir. 2014); ECF No. 860. On June 22, 2015, the Court reduced Petitioner's sentence to 120 months' imprisonment and 96 months' supervised release based on a retroactively lowered guideline sentencing range. ECF No. 973. Petitioner filed this § 2255 Motion and supporting affidavits with assistance of counsel on July 23, 2015. ECF No. 982. The Government responded in opposition to the Motion on December 8, 2015. ECF No. 994. Petitioner filed his Reply on December 21, 2015 then later filed Notices of Supplemental Authority on March 16, 2016 and April 5, 2016.[3] ECF Nos. 996, 1017, 1019.

         STANDARD OF REVIEW

         Under 28 U.S.C. § 2255, a prisoner in custody may move the court to vacate, set aside, or correct a sentence if he can prove by a preponderance of the evidence that "the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." 28 U.S.C. § 2255; Miller v. United States,261 F.2d 546, 547 (4th Cir. 1958). The claim must show a "fundamental defect which inherently results in a complete miscarriage of justice" or "an omission inconsistent with the rudimentary demand of fair procedure." Hill v. United States, 368 U.S. 424, 428 (1962). If the § 2255 motion, along with the files and records of the case, ...


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