United States District Court, D. Maryland
RICHARD M. MATHISEN, Petitioner,
UNITED STATES OF AMERICA, Respondent.
THEODORE D. CHUANG, UNITED STATES DISTRICT JUDGE.
Richard M. Mathisen has filed a Motion to Vacate, Set Aside,
or Correct Sentence and/or Plea, pursuant to 28 U.S.C. §
2255. In his Motion, Mathisen argues that he received
ineffective assistance of counsel because his trial counsel
inadequately explained the ramifications of agreeing to the
“open” plea agreement he signed, consisting of a
plea agreement with a barebones factual stipulation in which
he acknowledged only that his conduct met the elements of the
crime and with no agreement on the proper application of the
United States Sentencing Guidelines
(“Guidelines”). Mathisen further argues that his
counsel failed adequately to impeach the Government's
witnesses at the sentencing hearing and failed to call
defense witnesses who would have confirmed Mathisen's
limited role in the charged conspiracy. Having reviewed the
submitted materials, the Court finds that no hearing is
necessary. See Rule 8(a), Rules Governing Section
2255 Proceedings for the United States District Courts; D.
Md. Local R. 105.6. For the reasons set forth below, the
Motion is DENIED.
January 7, 2015, Mathisen and co-defendant Philip Rice
D'Avanzo were charged in a one-count indictment with
Conspiracy to Distribute and Possession with Intent to
Distribute Controlled Substances in violation of 21 U.S.C.
§ 846. The indictment arose out of an alleged conspiracy
in which Mathisen arranged for co-conspirators to obtain
magnetic resonance imaging scans (“MRIs”), had
another co-conspirator alter those MRIs to depict injuries,
and then had others use the altered MRIs to secure
prescriptions by which they obtained oxycodone, which
Mathisen and D'Avanzo would then use themselves or sell.
retained Robert Bonsib as his attorney. Bonsib is an
experienced criminal defense lawyer who has tried over 300
criminal jury trials in state and federal court and who has
previously served as both an Assistant State's Attorney
for Prince George's County, Maryland and an Assistant
United States Attorney for the District of Maryland.
March 17, 2015, the Government made a plea offer to Mathisen.
The offer proposed that Mathisen agree to a Guidelines base
offense level of no less than 24, to be determined based on
the quantity of oxycodone involved in the conspiracy, with an
additional four-level increase for having a leadership role
in the conspiracy pursuant to U.S.S.G. § 3B1.1(a) and a
two-level increase for obstruction of justice pursuant to
U.S.S.G. § 3C1.1 based on allegations that Mathisen had
asked a co-conspirator to harm D'Avanzo after they had
both been charged. The Government agreed not to oppose a
three-level reduction for acceptance of responsibility,
resulting in a total offense level of no less than 27.
Because there was no agreement regarding the amount of drugs
for which Mathisen would be held responsible, the total
offense level could have been increased above 27 based on
findings by the Court after the presentation of evidence at
the sentencing hearing regarding drug quantity.
to an affidavit submitted by Bonsib, Mathisen refused
throughout their discussions to agree to the Government's
assertions that he had been a leader of the conspiracy, that
he had distributed a large amount of oxycodone, and that he
had obstructed justice by seeking to have D'Avanzo
harmed. Bonsib counseled Mathisen not to accept the
Government's first plea offer because he expected the
Government still to seek the maximum penalty, 20 years.
Bonsib proposed, instead, an “open plea, ”
through which Mathisen would plead guilty to the charged
conspiracy but would remain free to contest at the sentencing
hearing the Government's assertions regarding
Mathisen's role in the conspiracy, the drug quantity at
issue, and the alleged obstruction of justice, which included
the Government's contention that Mathisen had sought to
cover up the death of a woman, Cecilia Gavidia, who had died
in Mathisen's home after ingesting a controlled
substance. Bonsib asserts that he explained to Mathisen that
his disagreements with the Government on these matters were
sentencing issues, not trial issues, as Mathisen at no point
denied that he was involved in a conspiracy to distribute
oxycodone and was prepared to plead guilty to that charge.
Mathisen's permission, Bonsib successfully negotiated
with the Government for an open plea agreement. During his
discussions with the Government, he also learned that if
Mathisen did not plead guilty to the original indictment, the
Government would seek a superseding indictment to add counts
for obstruction of justice and possibly a count for
distribution of a controlled substance resulting in death,
based on Gavidia's death, in violation of 21 U.S.C.
§ 841(b)(1)(C). Such a charge would have carried a
20-year mandatory minimum sentence. See id.
to Bonsib, he advised Mathisen that by accepting the open
plea agreement, he preserved his ability to challenge the
Government on these sentencing issues, preserved the
possibility of receiving the reduction for acceptance of
responsibility, and avoided a superseding indictment that
would have exposed Mathisen to higher penalties. Bonsib also
asserts that he told Mathisen that the Government has a lower
burden of proof at sentencing hearings- preponderance of the
evidence, rather than beyond a reasonable doubt-but noted
that even with a trial, issues such as drug quantity, role in
the offense, and obstruction of justice would not be decided
by the jury but would be resolved at sentencing under the
preponderance standard. Mathisen denies that Bonsib advised
him of the different burden of proof at a sentencing hearing
and asserts that he did not know that hearsay evidence is
admissible at a sentencing hearing.
accepted the open plea agreement and pleaded guilty on June
5, 2015. The plea agreement provided that, while Mathisen
would plead guilty to the elements of the charged crime,
there was no agreement as to the application of the
Guidelines. The Government agreed not to seek additional
charges against Mathisen based on the alleged plot to harm
D'Avanzo or Gavidia's death, but it reserved the
right to present evidence at the sentencing hearing regarding
these events in support of its proposed sentencing
enhancements. At the guilty plea hearing, the Court informed
Mathisen that if he did not plead guilty he would have the
right to a trial by jury, that the Government would be
required to prove guilt beyond a reasonable doubt, and that
he would have the right to have all witnesses testify in
court, in his presence. Mathisen acknowledged that he
understood that by pleading guilty he would be giving up
these rights. Mathisen also stated, under oath, that he had
discussed the terms of the plea agreement with his attorney,
that he understood them, and that he was fully satisfied with
his attorney's advice.
sentencing hearing was held on February 2 and February 3,
2016. The Government called as witnesses Jeremy Zamyslowski,
who testified that he participated in the drug-distribution
conspiracy, that he was present when Mathisen requested that
an associate remove items from his house after Gavidia's
death before the police arrived, and that he had been part of
a plot to kill D'Avanzo at Mathisen's behest, and
Merrit Moore, who testified that he had purchased drugs from
Mathisen. The Government also relied on the grand jury
testimony of several witnesses, including Kareem Ward, who
described the events surrounding Gavidia's death, and on
investigative reports from witness interviews, including of
D'Avanzo. Further, the Government presented documentary
evidence, including text messages between Mathisen and
D'Avanzo and records from Mathisen's computer showing
the location of multiple facilities that perform MRIs.
Government argued for a base offense level of 30, based on
its calculation that at least 326 grams of oxycodone were
involved in the conspiracy and reasonably foreseeable to
Mathisen. The Government sought a two-level increase because
Mathisen possessed a firearm, pursuant to U.S.S.G. §
2D1.1(b)(1); a four-level increase because Mathisen was an
organizer or leader of the conspiracy, pursuant U.S.S.G.
§ 3B1.1(a); a two-level increase for obstruction of
justice based on the attempted cover-up relating to
Gavidia's death and Zamyslowski's agreement to kill
D'Avanzo, pursuant to U.S.S.G. § 3C1.1; an upward
departure based on Gavidia's death, pursuant to U.S.S.G.
§ 5K2.1; and the denial of the
acceptance-of-responsibility reduction pursuant to U.S.S.G.
§ 3E.1.1, because Mathisen had opted for the open plea
and had not admitted specific facts relating to the crime.
Combined, these positions resulted in a recommended total
offense level of 38. With Mathisen's criminal history
category of II, this recommendation would result in a
Guidelines range of 262-327 months, above the statutory
maximum of 240 months. In the end, the Government recommended
a sentence of 240 months. In the Presentence Investigation
Report (“PSR”), the United States Probation
Office agreed with the Government's proposed Guidelines
calculations, except that it recommended a two-level
reduction for acceptance of responsibility, leading to a
total offense level of 36.
behalf of Mathisen, Bonsib offered the testimony of Erik
Carter, who testified that Mathisen did not possess a
firearm; Phyllis Bredice, Mathisen's grandmother, who
testified that she paid for all of Mathisen's expenses
and that Mathisen suffered from a severe back injury that
required pain medication; Kimberly Yourick, a private
investigator, who testified that after interviewing numerous
witnesses, she did not find evidence that Mathisen had sought
to have D'Avanzo harmed or that Mathisen had cleaned up
his home after Gavidia's death in order to hide evidence;
and Mathisen himself, who testified about his drug addiction
and admitted to dealing drugs to feed his habit, but denied
that he had any leadership role in a conspiracy to distribute
illegal substances or that he had obstructed justice. Bonsib
recommended that the Court find a drug quantity corresponding
to a base offense level of 24 and that Mathisen receive no
upward adjustments for his role in the conspiracy, possession
of a firearm, Gavidia's death, or obstruction of justice,
all of which would result in a Guideline range of 57-71
months. Bonsib recommended that Mathisen receive a sentence
of 57 months.
close of the hearing, the Court imposed a sentence of 108
months, less than half of the Government's proposed
sentence. The Court ruled that the Government had only proven
by a preponderance of the evidence a drug quantity resulting
in a base offense level of 26. Although the Court granted the
two-level enhancement for possession of a firearm, the Court
concluded that the Government, having relied primarily on
interview reports of statements by D'Avanzo, had not
established that Mathisen was an organizer or leader of the
conspiracy and thus applied only a three-level role
adjustment under U.S.S.G. § 3B1.1 based on the finding
that Mathisen was a manager or supervisor of the operation.
The Court also rejected the two-level enhancement for
obstruction of justice, finding that the proven conduct of
Mathisen during the aftermath of Gavidia's death and in
discussing a possible hit on D'Avanzo did not constitute
obstruction of justice within the meaning of U.S.S.G. §
3C1.1. As the Court granted ...