United States District Court, D. New Jersey
John F. Renner, Esq., JOHN F. RENNER PC, Marlton, NJ, Attorney for Petitioner.
Anthony J. Mahajan, AUSA, Robert Stephen Stigall, AUSA, OFFICE OF THE U.S. ATTORNEY, Newark, NJ, Attorneys for Respondent.
JEROME B. SIMANDLE, Chief District Judge.
Petitioner Joseph McAdams seeks to vacate, set aside and correct his sentence pursuant to 28 U.S.C. § 2255, alleging ineffective assistance of counsel under the Sixth Amendment of the U.S. Constitution. McAdams pled guilty to robbing ten banks in New Jersey and Pennsylvania between 2004 and 2008 in Counts 1-10, in violation of 18 U.S.C. §§ 2113(a), 2113(d) & 2, as well as brandishing a loaded firearm in one of the bank robberies, in Count 11, in violation of 18 U.S.C. § 924(c)(1)(A)(ii) & 2.
On April 15, 2010, this Court sentenced McAdams as a career offender to a term of imprisonment of 235 months on each of Counts 1 through 10 to be served concurrently with each other, followed by a mandatory consecutive term of 84 months on Count 11, for a total term of 319 months, together with restitution in the total amount of $804, 084.00.
Petitioner's primary argument is that two of the three crimes used to qualify him as a career offender under the U.S. Sentencing Commission Guidelines Manual ("U.S.S.G." or "the Guidelines") were not crimes of violence, and therefore he was improperly classified as a career offender and should have a received a sentence shorter than 319 months. Petitioner claims that two of the predicate offenses in the Presentence Report ("PSR") were misidentified as "bank robbery" when the convictions were, in fact, for "bank larceny, " which he contends are not crimes of violence. The Government concedes that the bank larceny argument is potentially meritorious, but takes the position that Petitioner was properly sentenced as a career offender based on a second prior conviction for a crime of violence: a 1979 robbery that was listed in the PSR but that was not designated as a predicate offense for career offender status.
The Court ordered supplemental briefing on whether the 1979 armed robbery conviction qualified as a prior felony conviction within the meaning of the sentencing guidelines, and an evidentiary hearing pursuant to 28 U.S.C. § 2255(b) was held. For the reasons explained below, the Court agrees that Petitioner was properly characterized as a career offender and will deny the petition.
1. Petitioner pleaded guilty to ten counts of bank robbery, in violation of 18 U.S.C. § 2113(a) and 2113(d), and one count of use of a firearm during the commission of a crime, in violation of 18 U.S.C. § 924(c)(1)(A)(ii). On April 15, 2010, this Court sentenced Petitioner to 319 months of imprisonment (235 months for each of the bank robbery charges, to be served concurrently with each other, and 84 months on the firearm charge, to be served consecutively).
2. The Presentence Investigation Report ("PSR") advised that Petitioner qualified as a career offender under the U.S. Sentencing Guidelines Manual ("U.S.S.G.") § 4B1.1. The PSR made this determination based on three predicate offenses: an April 9, 1984 conviction for bank robbery (sentence of 10 years, execution of sentence suspended, five years probation) (PSR ¶ 198); a December 13, 1985 conviction for armed robbery and unlawful possession of firearms (concurrent sentences of 15 years and 7 years imprisonment) (PSR ¶ 206); and an April 29, 1985 conviction for bank robbery (sentence of nine years imprisonment) (PSR ¶ 209). Although not marked as predicate offenses, the PSR also listed other prior convictions: breaking and entering in March 1977 (sentence of "[i]ndeterminate term, suspended; 3 years probation and $500 fine") (PSR ¶ 185); simple assault in August 1978 (fine of $35 plus $25 court costs) (PSR ¶ 188); robbery while armed and unlawful use of a dangerous weapon, among other charges, in January 1979 (sentence of "[i]ndeterminate term Yardville [Correctional Institution]") (PSR ¶ 190); and armed robbery and committing a crime while armed on February 2, 1979 (sentence of "[i]ndeterminate term at Yardville") (PSR ¶ 193). The latter conviction for armed robbery on February 2, 1979 is alleged to form a predicate crime for career offender purposes.
3. The sentencing judge in Superior Court of New Jersey, Somerset County, for the February 2, 1979 armed robbery determined that Petitioner deserved to be sentenced to a custodial term, but "because of your age and because of the fact that you have never been incarcerated before, this court will not sentence you to Trenton State Prison but will sentence you to the Yardville Correctional Institution for the purpose of your rehabilitation and for the purpose of deterring you and others from such criminal activity." (PSR ¶ 196.) The PSR states that information about the earlier 1979 robbery "does not appear in the defendant's computerized criminal history records" and "was obtained from the presentence report prepared for the [February 2, 1979] state robbery case." (PSR ¶ 191.)
4. The PSR originally calculated that Petitioner had 15 criminal history points, but, at sentencing, this Court reduced that number to 12, subtracting three points for the January 1979 robbery, because the conviction was not properly corroborated by documentary evidence. (See PSR ¶ 190; Sentencing Tr. ("Tr.") at 9:7-22.) Twelve points qualified Petitioner for Criminal History Category V, but the Court found Petitioner was a career criminal offender, which increased his criminal history category to Category VI. (Tr. at 9:23-10:3; see also U.S.S.G. § 4B1.1(b) ("A career offender's criminal history category in every case under this subsection shall be Category VI").) The Career Offender finding did not elevate the Offense Conduct Score, which remained at 31. The Guidelines recommended a sentence of 272 to 319 months for Offense Level 31 at Criminal History Category VI (including the 84-month mandatory consecutive increase for the § 924(c) violation). (Tr. at 76:14-24.) Both defense counsel Linda D. Foster, Esq.,  and the Assistant U.S. Attorney Anthony J. Mahajan proceeded as if Petitioner were a career offender for purposes of sentencing.
5. Petitioner did not appeal his sentence. Rather, on March 19, 2013,  he filed this petition to vacate, set aside and correct his sentence [Docket Item 1], which he successfully moved to amend in July 2013 [Docket Items 5 & 12]. He argues that his counsel was ineffective for two reasons. First, his counsel failed to convey to him a plea offer with a maximum sentence of 235 months, which he would have accepted, had he known of it. (Pet. at 20.) Second, his counsel was ineffective for failing to object to his erroneous classification as a career offender. (Pet. at 23.)
First Ground: Failure to Convey Plea Offer
6. In support of the first argument,  Petitioner states that his constitutional right to effective assistance of counsel was violated when his counsel failed to convey a plea offer that used Offense Level 31 and Criminal History Category IV, "permitting the petitioner to receive 235 months, [151 84], for both offenses, " meaning the bank robberies and the firearm charge. (Pet. at 20-21.) He asserts that the first plea offer contemplated a regular guideline sentence (using Criminal History Category IV), and would have resulted in a lesser sentence than a plea which permitted him to be sentenced as a career offender using Criminal History Category VI. under the Sixth Amendment, a petitioner must show that his or her legal representation fell "below an objective standard of reasonableness, ' as is indicated by ...