United States District Court, D. Maryland
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.
W. TITUS, District Judge.
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.
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:
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.
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.
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,
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
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.
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,  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.
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.
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.
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.
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.
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.
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. ECF Nos. 996, 1017, 1019.
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, ...