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Copeland v. United States

United States District Court, M.D. Florida, Jacksonville Division

July 3, 2019

BRYAN ADRAIN COPELAND, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          MARCIA MORALES HOWARD, UNITED STATES DISTRICT JUDGE

         This case is before the Court on Petitioner Bryan Adrain Copeland's pro se Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (Civ. Doc. 1; Motion to Vacate), Memorandum in Support (Civ. Doc. 2; Memorandum), and Affidavit (Civ. Doc. 2-1; Affidavit).[1] Copeland alleges that he pled guilty because counsel misadvised him about his potential sentence. Copeland also raises three claims that counsel gave ineffective assistance at his sentencing. The United States filed an initial response (Civ. Doc. 7; Response) and Copeland filed a counseled reply (Civ. Doc. 12; Reply). After reviewing the initial briefs, the Court ordered the United States to file a supplemental response, which the Court has received (Civ. Doc. 16; Supplemental Response) along with Copeland's counseled supplemental reply (Civ. Doc. 17; Supplemental Reply). Thus, the matter is ripe for a decision.

         Pursuant to 28 U.S.C. § 2255 and Rule 8(a) of the Rules Governing Section 2255 Proceedings[2], the Court has considered the need for an evidentiary hearing and determines that a hearing is not necessary to resolve the merits of this action. See Rosin v. United States, 786 F.3d 873, 877 (11th Cir. 2015) (an evidentiary hearing on a § 2255 motion is not required when the petitioner asserts allegations that are affirmatively contradicted by the record or patently frivolous, or if in assuming the facts that he alleges are true, he still would not be entitled to any relief); Patel v. United States, 252 Fed.Appx. 970, 975 (11th Cir. 2007).[3] For the reasons set forth below, Copeland's Motion to Vacate is due to be denied.

         I. Background

         On November 10, 2011, a grand jury sitting in the Middle District of Florida returned a thirty-eight-count indictment, charging Copeland with eleven counts of mail fraud in violation of 18 U.S.C. § 1341 (Counts One through Eleven), sixteen counts of wire fraud in violation of 18 U.S.C. § 1343 (Counts Twelve through Twenty-Seven), nine counts of aggravated identity theft in violation of 18 U.S.C. § 1028A (Counts Twenty-Eight through Thirty-Six), and two counts of making false claims against the United States in violation of 18 U.S.C. § 287 (Counts Thirty-Seven and Thirty-Eight). (Crim. Doc. 1; Indictment). On February 15, 2012, Copeland pled guilty to Counts Twenty-Seven, Thirty-Six, and Thirty-Seven pursuant to a written Plea Agreement. (Crim. Doc. 42; Plea Agreement); (Crim. Doc. 81; Plea Tr.). In doing so, Copeland admitted committing wire fraud, committing aggravated identity theft, and making false claims against the United States. Specifically, Copeland admitted that between May 2006 and January 2010, he engaged in a scheme to defraud the Internal Revenue Service (IRS) by using stolen identities to submit fraudulent tax returns via mail and electronic filing. Plea Agreement at 20-22, 23-26; Plea Tr. at 28-33.

         On June 18, 2012, the Court sentenced Copeland to a total term of imprisonment of 264 months, consisting of 240 months as to Count Twenty-Seven, a concurrent term of 60 months in prison as to Count Thirty-Seven, and a consecutive term of 24 months in prison as to Count Thirty-Six, which by statute had to run consecutively with the sentence for the other two counts.[4] (See Crim. Doc. 84; Sentencing Tr.); (Crim. Doc. 65; Judgment). Copeland appealed the sentence, “argu[ing], inter alia, that the government breached the plea agreement by failing to recommend a three-level guideline reduction under U.S.S.G. § 3E1.1 for acceptance of responsibility.” United States v. Copeland, 520 Fed.Appx. 822, 823 (11th Cir. 2013). The Eleventh Circuit agreed with Copeland that the government breached the Plea Agreement to the extent it failed to recommend a two-level reduction under § 3E1.1(a), id. at 826-27, and remanded the case for resentencing before a different judge, id. at 828.

         Following remand, the Probation Office prepared a revised Presentence Investigation Report (Revised PSR) in advance of the resentencing hearing. For purposes of calculating the offense level, Counts Twenty-Seven and Thirty-Seven were grouped together “pursuant to U.S.S.G. § 3D1.2(d) because the offense level [was] determined largely on the basis of the total amount of loss and the offense guideline is written to cover such behavior.” Revised PSR at ¶ 37. Count Thirty-Six, which carried a two-year mandatory consecutive sentence, was grouped separately. See id. at ¶ 38. According to the Revised PSR, the total offense level for Counts Twenty-Seven and Thirty-Seven was 38 and Copeland's Criminal History Category was I. Revised PSR at ¶¶ 40-51, 57. The total offense level consisted of a base offense level of 6 under U.S.S.G. § 2B1.1(a)(2); an 18-level enhancement under § 2B1.1(b)(1)(J) because the loss was more than $2.5 million but not more than $7 million; a 6-level enhancement under § 2B1.1(b)(2)(C) because the offense involved more than 250 victims; a 2-level enhancement under § 2B1.1(b)(10)(C) because the offense involved sophisticated means; a 2-level enhancement under § 3A1.1(b)(1) because the offense involved a vulnerable victim; a 4-level enhancement under § 3B1.1(a) because Copeland was an organizer or leader of criminal activity; a 2-level enhancement under § 3C1.1 for obstruction of justice; and a 2-level reduction under § 3E1.1(a) for acceptance of responsibility. The Guidelines calculation yielded an advisory sentencing range of 235-293 months in prison as to Counts Twenty-Seven and Thirty-Seven, plus the 24-month consecutive term of imprisonment as to Count Thirty-Six. (Crim. Doc. 144; Resentencing Tr. Vol. II at 12). The Court varied well below the Guidelines range, imposing a total term of imprisonment of 204 months. Id. at 53. The prison sentence consisted of 180 months as to Count Twenty-Seven, a concurrent term of 60 months as to Count Thirty-Seven, and a consecutive term of 24 months as to Count Thirty-Six. Id.; (see also Crim. Doc. 135; Judgment on Resentencing). The Court also sentenced Copeland to a total of 3 years of supervised release following the term of imprisonment and ordered him to pay approximately $3.5 million in restitution. Judgment on Resentencing at 3, 5.

         Copeland again appealed his sentence, this time arguing that the Court erred by applying a Guidelines enhancement for obstruction-of-justice. United States v. Copeland, 604 Fed.Appx. 834, 835 (11th Cir. 2015). The Eleventh Circuit rejected Copeland's argument and affirmed his conviction and sentence. Id. at 838. Copeland did not seek certiorari review before the Supreme Court. Thereafter, Copeland timely filed the instant Motion to Vacate, raising four claims of ineffective assistance of counsel.[5]

         II. Discussion

         Pursuant to Title 28, United States Code, Section 2255, a person in federal custody may move to vacate, set aside, or correct his sentence. Section 2255 permits such collateral challenges on four specific grounds: (1) the imposed sentence was in violation of the Constitution or laws of the United States; (2) the court did not have jurisdiction to impose the sentence; (3) the imposed sentence exceeded the maximum authorized by law; or (4) the imposed sentence is otherwise subject to collateral attack. 28 U.S.C §2255(a) (2008). Only jurisdictional claims, constitutional claims, and claims of error that are so fundamentally defective as to cause a complete miscarriage of justice will warrant relief through collateral attack. United States v. Addonizio, 442 U.S. 178, 184-86 (1979). A petitioner's challenge to his sentence based on a Sixth Amendment claim of ineffective assistance of counsel is normally considered in a collateral attack. United States v. Teague, 953 F.2d 1525, 1534 n. 11 (11th Cir. 1992).

         To establish ineffective assistance of counsel, a § 2255 petitioner must demonstrate both: (1) that his counsel's conduct amounted to constitutionally deficient performance, and (2) that counsel's deficient performance sufficiently prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); Weeks v. Jones, 26 F.3d 1030, 1036 (11th Cir. 1994). In determining whether the petitioner has satisfied the first requirement, i.e. that counsel performed deficiently, the Court adheres to the standard of reasonably effective assistance. Weeks, 26 F.3d at 1036. The petitioner must show that, in light of all the circumstances, counsel's performance fell outside the “wide range of professionally competent assistance.” Id. To satisfy the second requirement, that counsel's deficient performance was prejudicial, the petitioner must show that there is a reasonable probability that, but for counsel's error, the result of the proceeding would have been different. Id. at 1036-37 (citing Strickland, 466 U.S. at 694). In determining whether a petitioner has met the two prongs of deficient performance and prejudice, the Court considers the totality of the evidence. Strickland, 466 U.S. at 695. However, because both prongs are necessary, “there is no reason for a court… to approach the inquiry in the same order or even to address both components of the inquiry if the defendant makes an insufficient showing on one.” Id. at 697; see also Wellington v. Moore, 314 F.3d 1256, 1261 n. 1 (11th Cir. 2002) (“We need not discuss the performance deficiency component of [petitioner's] ineffective assistance claim because failure to satisfy the prejudice component is dispositive.”).

         Strickland's two-part test applies to claims of ineffective assistance arising out of the plea negotiation process. Hill v. Lockhart, 474 U.S. 52, 57 (1985). Thus, a prisoner alleging ineffective assistance of counsel based on his attorney's performance during the plea process must show two things: (1) that his attorney's advice fell below an objective standard of reasonableness, and (2) a reasonable probability that the outcome of the plea process would have been different with competent advice. Lafler v. Cooper, 132 S.Ct. 1376, 1384 (2012) (citation omitted).

         A. Ground One

         In his first ground, Copeland argues that he “received ineffective assistance of counsel during plea negotiations when counsel promised an unrealistically low sentence in order to induce a guilty plea that otherwise would not have been entered.” Motion to Vacate at 4. Specifically, Copeland alleges that:

(1) Counsel “advised him that the maximum sentence he could receive under the plea agreement was 84 months imprisonment” and that he would likely receive a sentence “in the range of 60 months imprisonment.” Memorandum at 10; see also Affidavit at ¶ 2. Counsel purportedly failed to advise Copeland that he could be sentenced to over 200 months in prison.

See Memorandum at 10.

(2) Counsel failed to advise him how the loss amount would be calculated under the United States Sentencing Guidelines, and failed to advise him of the possibility that he could be subject to Guidelines enhancements “that were not addressed in the plea agreement.” Memorandum at 10-11; see also Affidavit at ¶ 3.
(3) Counsel advised him “that a verbal agreement had been reached [with the government] concerning his sentence and that the Guidelines would not be used, ” but instead that a “3rd party mitigator” named Carlos Dawson “would be used to determine the appropriate sentence.”

         Memorandum at 11; see also Affidavit at ¶ 3. Copeland alleges that counsel's advice rendered his guilty plea unknowing, involuntary, and unintelligent. Memorandum at 8. He further contends that “[h]ad Petitioner been correctly advised by counsel concerning his potential penalty, he would never have entered the plea agreement.” Id. at 12; Affidavit at ¶ 4.

         The record refutes each of Copeland's allegations. Beginning with the Plea Agreement, the Court notes that contrary to Copeland's assertion that he believed the maximum sentence was 84 months (7 years) in prison, a section titled “Maximum Penalties” specifically advised him that the cumulative maximum penalty for Counts Twenty-Seven, Thirty-Six, and Thirty-Seven was 27 years in prison, two years “of which are mandatory consecutive to any sentence of imprisonment imposed pursuant to Count Twenty-Seven.” Plea Agreement at 3. By signing the Plea Agreement, Copeland acknowledged that he understood that regardless of any recommendations made by the government, “the sentence w[ould] be determined solely by the Court, with the assistance of the United States Probation Office.” Id. at 15. Thus, Copeland could not have believed that his sentence would be determined by a “3rd-party mitigator” or based on some alleged verbal agreement with the government.

         Moreover, contrary to Copeland's assertion that he was unaware any enhancements could be applied that were not addressed in the Plea Agreement, the Plea Agreement contained a section titled “Sentencing Information”:

         3. Sentencing Information

The United States reserves its right and obligation to report to the Court and the United States Probation Office all information concerning the background, character, and conduct of the defendant, to provide relevant factual information, including the totality of the defendant's criminal activities, if any, not limited to the counts to which defendant pleads, to respond to comments made by the defendant or defendant's counsel, and to correct any misstatements or inaccuracies. The United States further reserves its right to make any recommendations it deems appropriate regarding the disposition of this case, subject to any limitations set forth herein, if any.

Id. at 14. Thus, Copeland understood that the government could bring any information to the attention of the Court that was relevant to his background, personal and offense characteristics, and conduct or criminal activities. Finally, Copeland acknowledged that he was not relying on any “promise of benefit of any kind” other than those contained in the Plea Agreement itself, id. at 17, and that the written Plea Agreement constituted the entirety of the agreement, id. at 19. These provisions contradict Copeland's claim that he relied on counsel's alleged assurance that counsel and the government had reached a verbal agreement about the sentence.

         At the change-of-plea colloquy, Copeland stated under oath that he had read and understood every provision of the Plea Agreement, that he had signed the agreement, and that he had initialed each page. Plea Tr. at 21-22. Copeland's attorney confirmed as well that he had reviewed the Plea Agreement with Copeland. Id. at 21. After advising Copeland of his rights, the Court advised Copeland about the applicability of the United States Sentencing Guidelines, the unpredictability of his sentence, and the Court's authority to impose any sentence up to the statutory maximum:

THE COURT: Now, the federal sentencing guidelines apply to your case, Mr. Copeland. Have you had an opportunity to discuss the sentencing guidelines with your lawyer?
DEFENDANT: Yes, sir.
THE COURT: I'm not going to go into great detail about the guidelines because you've already discussed them with your lawyer, but I do want to make sure that you understand certain things about how the sentencing process works.
The Court will not be able to determine what your guideline sentence is until after the presentence report has been prepared by the probation department. After it has been determined what guidelines apply to your case, I have the authority to impose a sentence that is more severe or less severe than the sentence called for by the guidelines. I have the authority, under certain circumstances, to depart or vary from the guidelines and sentence you either to a lower sentence or a higher sentence than the one called for by the guidelines.
I am required to consider the guidelines, but I have the authority to impose any sentence up to and including the maximum penalty permitted by law. This means that the Court is not bound by the guidelines in setting your sentence, but rather, that the guidelines are only advisory in nature.
Understood?
DEFENDANT: Yes, sir.

         Plea Tr. at 14. The Court further cautioned Copeland not to rely on any sentencing estimate provided by his lawyer:

THE COURT: …. The sentence that is imposed may be different than any estimated sentence that your lawyer or anybody else has given you. In fact, it may be more severe than you expect. If that happens you will still be bound ...

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