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Sasonov v. United States

September 9, 2008

NATHAN SASONOV, PETITIONER,
v.
UNITES STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: Greenaway, Jr., U.S.D.J.

FOR PUBLICATION

OPINION

This matter comes before this Court on Nathan Sasonov's ("Petitioner") Petition seeking a writ of habeas corpus, pursuant to 28 U.S.C. § 2255 (2008). Petitioner contends that his trial counsel's performance fell so far below accepted standards of professional conduct that he was deprived of his Sixth Amendment right to counsel. As a result of trial counsel's ineffective assistance, Petitioner argues that his guilty plea was involuntary and should be vacated. For the reasons set forth below, this Court grants the Petition and vacates the guilty plea.

I. FACTUAL BACKGROUND

On July 27, 2005, Petitioner Nathan Sasonov, a citizen of Uzbekistan and a permanent resident of the United States,*fn1 was arrested and charged with one count of conspiracy to violate the laws of the United States, pursuant to 18 U.S.C. § 371 (1994), and one count of bribery of a public official, pursuant to 18 U.S.C § 201(b)(1) (1994). (Pet'r Decl. ¶¶ 2, 9, 20; see also Pet'r Decl. Ex. A.) Petitioner's arrest arose from activity related to his shipping company, Statewide Transportation, located in Linden, New Jersey. (Id. at Ex. A.) On December 12, 2005, Petitioner was indicted on the same two charges. (Id. at ¶ 3.)

Shortly after his arrest, Petitioner retained Samuel Racer, Esq. to represent him. (Id. at ¶ 10.) During their initial meeting in July of 2005, Petitioner explained his understanding of the charges against him, and Mr. Racer told Petitioner "not to worry, this is not a big deal." (Id.) Afterwards, Petitioner requested that he and Mr. Racer meet again to discuss the status of the case. (Id. at ¶ 11.) Mr. Racer informed Petitioner that there was nothing for the two of them to discuss, and therefore, no need to meet. (Id.) Petitioner did not speak with Mr. Racer again until late December 2005. (Id.)

During their second meeting, Mr. Racer informed Petitioner about a plea agreement that Mr. Racer had negotiated with the Government. (Id.) The terms of the agreement required Petitioner to plead guilty to the bribery charge, and serve a fifteen-months sentence in exchange for the Government dropping the conspiracy charge. (Id.) Mr. Racer advised Petitioner that his only recourse was to plead guilty, and that by pleading he would avoid a fifteen-year sentence. (Id.) Mr. Racer said nothing of the immigration consequences related to Petitioner's guilty plea. (Id.) Petitioner signed the plea agreement based on Mr. Racer's advice. (Id.)

At some point prior to Petitioner being sentenced,*fn2 Petitioner asked Mr. Racer specifically whether his plea of guilty to the bribery charge would affect his immigration status. (Petitioner also raised this issue during the sentencing hearing.) (Id. at ¶ 9.) Mr. Racer stated that because Petitioner was a resident alien, with a green card, he would not be subject to deportation when convicted. (Id.) Similarly, Mr. Racer stated that the charges against Petitioner were not charges for which he could be deported.*fn3 (Id. at ¶ 20.)

On February 8, 2006, Petitioner pled guilty, and this Court accepted his guilty plea, to Count Two of the Indictment, which charges a violation of 18 U.S.C. § 201(b)(1). (Plea Hr'g Tr. 6:8 and 24:5-6, Feb. 8. 2006.) On June 14, 2006, this Court conducted the first of two sentencing hearings. (See generally Sentencing Hr'g Tr. ("Sentencing Tr. 1"), June 14, 2006.) During the initial hearing, Mr. Racer attempted to argue, in violation of the plea agreement, for a downward departure in Petitioner's sentence based on information Mr. Racer read in the pre-sentencing report. (See Sentencing Tr. 1 3:15-20.) Mr. Racer stated, on the record, that because he had failed to conduct discovery in this matter, Petitioner's minor role in the charged criminal enterprise was not readily apparent to him.*fn4 (Id.) This Court admonished Mr. Racer for such admission, stating

THE COURT: No, no, no. You don't get to say that because at the plea I asked you - - and, specifically, it's question number 15 on my plea allocution - - I asked you specifically, counselor, have you received sufficient discovery and information from the government to advise your client properly about this plea of guilty? I've done it two or three, four hundred times, that's why I've memorized it. And you said, yes. If we need to produce a transcript, I'll produce it. Please don't say to me at the time of sentencing you did no discovery in this cause of action at the time of the plea. On the record, you, as an officer of the Court, told me that you received sufficient discovery and information from the government to advise your client properly about this plea. (Sentencing Tr. 1 3:21-4:10.) Subsequently, Mr. Racer withdrew the motion. (Id. at 8:1.)

Next, Mr. Racer argued that Petitioner should be subject to a two-point, rather than a four-point, offense level enhancement, pursuant to Sentencing Guideline § 2C1.1(b)(2),*fn5 because the value of the payment, or the benefit Petitioner received from the bribe was less than $10,000. (Id. at 11:4-7.) Mr. Racer relied on invoices that he could not authenticate for the Court. This Court gave Mr. Racer an opportunity to submit an affidavit confirming the authenticity of the invoices, and adjourned the sentencing hearing. (Id. at 16:6-19:17.)

On June 19, 2006, this Court reconvened the sentencing hearing. (See generally Sentencing Hr'g Tr. ("Sentencing Tr. 2"), June 19, 2006.) During this hearing, Mr. Racer did not submit an affidavit swearing to the authenticity of the invoices. Instead, he submitted additional invoices in an effort to demonstrate that the benefit of the bribe was less than $10,000. This Court rejected Mr. Racer's argument. (Sentencing Tr. 2 8:19-9:14.)

Next, Mr. Racer stated that other evidence existed offering proof that the benefit received was less than $10,000. He claimed that there were cancelled checks reflecting the actual payments made. (Sentencing Tr. 2 10:13-20.) However, Mr. Racer failed to produce these documents at the hearing. This Court ruled, after considering the Government's submissions and Mr. Racer's failure to submit contrary evidence, that the value of the bribe was more than $10,000, but less than $30,000. A four-point enhancement was, therefore, appropriate. (Id. at 8:19-9:14, 13:6-8.)

At the conclusion of the second hearing, this Court sentenced Petitioner to a term of fifteen months in the custody of the Bureau of Prisons, and a two-year period of supervised release. (Id. at 26:3-8.) Petitioner was also fined $5,000. (Id. at 27:25-28:1)

After Petitioner was sentenced, he "received [] notification from the Bureau of Prisons that a detainer had been lodged against [him] by [] Immigration and Customs Enforcement [] . . . as [a] result of [his] conviction . . . ." (Pet'r Decl. ¶ 21.) On June 14, 2007, Petitioner filed a pro se petition to vacate, set aside, or correct the sentence, pursuant to 28 U.S.C. § 2255. (See generally Pet. for Writ of Habeas Corpus.) On July 20, 2007, Petitioner filed a declaration in support of his § 2255 Petition. (See generally Pet'r Decl.) Subsequently, Petitioner retained new counsel, Mr. Thomas E. Moseley, Esq., who filed a memorandum of law in support of the Petition alleging that trial counsel: 1) failed to conduct adequate pre-trial discovery; 2) failed to ...


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