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Mathisen v. United States

United States District Court, D. Maryland

July 11, 2018




         Petitioner 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.


         On 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.

         Mathisen 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.

         On 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.

         According 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.

         With 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.

         According 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.

         Mathisen 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.

         The 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.

         The 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.

         On 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.

         At the 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 ...

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