United States v. Andrews

15 F.Supp.3d 532

UNITED STATES of America

v.Dee Lynn ANDREWS.

Criminal Action No. 09–261–1.

Civil Action No. 13–6205.

United States District Court, E.D. Pennsylvania.

Signed April 15, 2014.

Paul G. Shapiro, U.S. Attorney's Office, Philadelphia, PA, for United States of America.

Stuart Patchen, Defender Association of Philadelphia, Susan M. Lin, Federal Community Defenders, Philadelphia, PA, for Dee Lynn Andrews.

MEMORANDUM

ANITA B. BRODY, District Judge.

Currently before me is Dee Lynn Andrews' Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence. For the reasons set forth below, I will deny Andrews' § 2255 motion.

I. BACKGROUND¹

On April 1, 2009, the grand jury returned an indictment charging Andrews with three counts of mail fraud, in violation of 18 U.S.C. §§ 1341, 1349, and three counts of wire fraud, in violation of 18 U.S.C. §§ 1343, 1349. According to the indictment, Andrews settled a Fen–Phen lawsuit with Wyeth, the drug manufacturer, for approximately $200,000, and promised not to sue Wyeth for any claim arising out of her purchase, use, or ingestion of Fen–Phen. However, Andrews subsequently filed multiple claims against Wyeth to recover for the same Fen–Phen injuries for which she had already received compensation.

Rather than proceed to trial, Andrews decided to plead guilty pursuant to a written plea agreement. The plea agreement provided that Andrews would “voluntarily and expressly waive[ ] the right to appeal or collaterally attack [her] conviction, sentence, or any other matter relating to this prosecution, whether such a right to appeal or attack arises under 18 U.S.C. § 3742, 28 U.S.C. § 1291, 28 U.S.C. § 2255, or any other provision of law.” Guilty Plea Agrmt. ¶ 9. The following limited exceptions applied to Andrews' waiver of her right to appeal or collaterally attack her conviction or sentence:

a. Notwithstanding the waiver provision above, if the government appeals from the sentence, then the defendant may file a direct appeal of her sentence.

b. If the government does not appeal, then notwithstanding the waiver provision set forth in this paragraph, the defendant may file a direct appeal but may raise only claims that:

(1) the defendant's sentence on any count of conviction exceeds the statutory maximum for that count as set forth in paragraph 3 above;

(2) the sentencing judge erroneously departed upward pursuant to the Sentencing Guidelines;

(3) the sentencing judge, exercising the Court's discretion pursuant to United States v. Booker, 543 U.S. 220[, 125 S.Ct. 738, 160 L.Ed.2d 621] (2005), imposed an unreasonable sentence above the final Sentencing Guideline range determined by the Court; and/or

(4) the district court decided adversely to the defendant the following issue: the motion in limine to exclude certain defense psychological evidence.

If the defendant does appeal pursuant to this paragraph, no issue may be presented by the defendant on appeal other than those described in this paragraph.

Id.

In February 2012, Andrews' counsel sent Andrews a copy of the plea agreement to read and then reviewed the agreement with her over the phone. In reviewing the waiver section of the plea agreement, counsel informed Andrews that, if she signed the plea agreement and pled guilty, “the only way she could ‘appeal’ or ‘complain’ about her sentence was based on the reasons listed in the [waiver] paragraph.” Trial Counsel Aff. 2 ¶ 4. Counsel explained to Andrews the limited exceptions to her waiver of her right to appeal or collaterally attack her conviction or sentence. Id. Andrews signed the plea agreement after reviewing it with counsel.

On April 26, 2012, the Court held a change of plea hearing. In the beginning of the hearing, the Government described the waiver agreement to Andrews and the Court. Afterward, the Court explained the waiver provision to Andrews. Specifically, the Court explained to Andrews that, with very limited exceptions, she was “giv[ing] up all [her] rights to appeal or complain to anyone....” Tr. 4–26–12 at 24:18–19. The Court reiterated to Andrews that she was “giv[ing] up the right to appeal any—file any appeal in this case for any challenge, such as a habeas corpus motion, to vacate, set aside, or correct [her] sentence.” Id. at 25:11–13. The Court further emphasized to Andrews that “[i]f the Government does not appeal, then you may not appeal or present any later challenge claiming error to this guilty plea proceeding, the sentencing, or any other aspect of this case, with three—and in your case four narrow exceptions.” Id. at 25:19–23. The Court then explained each narrow exception to the waiver provision to Andrews. After each time the Court explained the waiver provision, Andrews confirmed that she understood the limitations on her right to appeal or collaterally challenge her conviction and sentence. Id. at 24–26. At the end of the change of plea hearing, Andrews pled guilty to all counts in the indictment, pursuant to the written plea agreement.

Prior to sentencing, the probation office prepared a Presentence Investigation Report (“PSR”) and defense counsel submitted a sentencing memorandum. The PSR explained that all of Andrews' teeth had been removed for medical reasons in 2009. PSR ¶ 128. Additionally, it stated that on October 10, 2012, Andrews had begun a lengthy oral surgery treatment plan to repair the bones in her face and naval cavity in order to enable the implantation of permanent teeth. Defense counsel argued in the sentencing memorandum that Andrews' oral condition warranted a downward departure or variance from the sentencing guidelines range. The sentencing memorandum included several documents from Andrews' surgical team recording her progress and explaining the procedure.

The PSR also provided a detailed review of Andrews' mental health problems and summarized the findings of a forensic psychiatric assessment and a neurological evaluation of Andrews. PSR ¶¶ 131–39. Defense counsel included both the complete forensic psychiatric assessment and the neurological evaluation as exhibits to the sentencing memorandum. Defense counsel explained in the memo that Andrews had been receiving treatment from the state of Arizona since 2003 when she was given Seriously Mental Ill (“SMI”) status. Andrews had a case manager, a therapist, and a psychiatrist. From 2003 until 2007, a supportive team was assigned to Andrews to stabilize her condition. In 2007, Andrews had stabilized enough to be stepped down from the supportive team to a connective team. Counsel explained that since 2007, Andrews has been stable. Counsel argued that incarceration would interrupt the SMI services Andrews received and negatively affect her stability. A video interview of Rebecca Dobbs, Andrews' case manager, was submitted as an exhibit to support counsel's argument.

On January 7, 2013, the Court held Andrews' sentencing hearing. At sentencing, defense counsel argued for a downward departure or variance to the guidelines range based on Andrews' oral health. Defense counsel explained that Andrews was in the middle of oral surgery and that “[s]he currently has no teeth, ... she has meshes that have been implanted, and once they heal, they then have to go back and put temporary crowns on, and then they have to wait for the bone to heal even more, and then they have to put the actual teeth in.” Tr. 1–7–13 at 32:2–6. Defense counsel estimated it would take another year to complete the procedure based on the letter from the dental student that was submitted with the sentencing memo. Defense counsel argued that Andrews' oral condition supported a non-custodial sentence because “if [Andrews] were to go into the BOP, the oral surgery would have been for nought because it wouldn't be completed within the BOP....” Id. at 33:15–17. The Court pointed out that Andrews “knew all this when she commenced [the surgery].” Id. at 33:20–21. Additionally, without evidence the Court could not “assume that the surgery would be for nought.” Id. at 34:19–22.

Counsel also argued for a non-custodial sentence based on Andrews' post-offense rehabilitation. Specifically, counsel emphasized how the services provided by the State of Arizona had stabilized Andrews and that SMI services continued to keep her stable. Counsel never argued to the Court that incarceration would render Andrews ineligible for SMI services upon her release from prison because counsel “believed that Ms. Andrews would be able to receive her benefits again upon release from any sentence of incarceration.” Trial Counsel Aff. P. 3 ¶ 7. Trial counsel based this belief on her interview with Rebecca Dobbs, Andrews' case manager, who had informed trial counsel that Andrews would be able to receive the same services upon her release from prison.²

The Court acknowledged Andrews' significant post-offense rehabilitation and that Andrews was in the middle of oral surgery. However, the Court also explained that Andrews “us[ed] the auspices of the Court and then turn[ed] around and defraud[ed] the Court, and that is very, very serious, very serious. And then [she] compounded that felony by testifying dishonestly on—on deposition under oath.” Id. at 55:3–7. The Court balanced Andrews' personal needs with the need for deterrence and adequate punishment:

As far as yourself is concerned, that's the problem I have with this case is that I don't want to send you out after time in prison worse than you are now, but that's the balance I have to—I have to weigh, and I have come down believing that you must be—that there must be a period of incarceration.

Id. at 56:3–8. The Court sentenced Andrews to one year and one day of imprisonment, three years of supervised release, a $3,000 fine, and a $600 special assessment. Taking into consideration Andrews' oral health, the Court ordered Andrews to begin her sentence on May 25, 2013. When it became apparent in May 2013 that Andrews' oral treatment was nowhere near complete, the Court granted Andrews' unopposed request to delay...