United States v. Ly

1

UNITED STATES OF AMERICA, v. AKEE LY, Defendant.

No. 1:19-CR-00011

United States District Court, M.D. Pennsylvania

May 17, 2023

MEMORANDUM OPINION

Matthew W. Brann, Chief United States District Judge.

I. BACKGROUND

In 2019, Akee Ly was indicted on charges of possession with the intent to distribute cocaine and marijuana, in violation of 21 U.S.C. § 841(a)(1), possession of firearms in furtherance of drug trafficking, in violation of 18 U.S.C § 924(c)(1)(A), and being a felon in possession of firearms, in violation of 18 U.S.C. § 922(g).^[1] Ly thereafter pled guilty, pursuant to a written plea agreement, to possession of firearms in furtherance of drug trafficking.^[2]

The plea agreement noted that the offense carried a mandatory minimum term of five years' imprisonment, and a maximum term of life imprisonment.^[3] It further stated that Ly “agree[d] that any legal and factual issues relating to the application of the Federal Sentencing Guidelines to the defendant's conduct, including facts to support any specific offense characteristic or other enhancement or adjustment and the appropriate sentence...” would be determined by the Court.^[4] The plea agreement stated that Ly understood that the agreement and any recommendations contained therein were not binding on the Court, and that the Court could impose a sentence up to the statutory maximum sentence of life imprisonment.^[5] The plea agreement further provided that Ly could not withdraw his guilty plea due to dissatisfaction with the Court's rulings or the sentence imposed.^[6]

Additionally, the plea agreement contained a waiver of Ly's appellate rights, wherein he agreed:

The defendant is aware that Title 28, United States Code, Section 1291 affords a defendant the right to appeal a judgment of conviction and sentence; and that Title 18, United States Code, Section 3742(a) affords a defendant the right to appeal the sentence imposed. Acknowledging all of this, the defendant knowingly waives the right to appeal the conviction and sentence. This waiver includes any and all possible grounds for appeal, whether constitutional or non-constitutional, including, but not limited to, the manner in which that sentence was determined in light of United States v. Booker, 543 U.S. 220 (2005). The defendant further acknowledges that this appeal waiver is binding only upon the defendant and that the United States retains its right to appeal in this case.^[7]

At the change of plea hearing, this Court again reiterated that the maximum sentence that could be imposed was life imprisonment, and that the offense carried a mandatory minimum term of five years' imprisonment.^[8] Ly's attorney (“Plea Counsel”) stated at that hearing that he could not, at that moment, estimate what the Sentencing Guidelines range would be since Ly had “previous convictions that we're looking into,” although he had advised Ly “that it's a minimum of five years and that we need to investigate at least one of his offenses to see how that would affect the guidelines.”^[9] The Government estimated that Ly's Sentencing Guidelines range would likely be 70 to 87 months' imprisonment.^[10]

Ly understood, however, that if the actual Sentencing Guidelines range were different than any estimate provided, he would not be able to withdraw his guilty plea, and he understood that no one could guarantee what sentence he would receive from the Court.^[11] Ly also understood that prior criminal convictions “may increase [his] guideline range.”^[12] The Court notified Ly that the Sentencing Guidelines range was “advisory only” and that the “Court has the authority to impose a sentence that is more severe or less severe than the sentence prescribes by the guidelines.”^[13]Finally, Ly confirmed that he understood he was waiving his right to a direct appeal.^[14] The Court ultimately accepted the guilty plea, and a Presentence Report (PSR) was prepared.^[15] The PSR noted that police found Ly in possession of firearms, at which time Ly agreed to a search of his residence.^[16] During a search of Ly's residence, law enforcement discovered four firearms, ammunition, 75 grams of cocaine, Xanax, marijuana, Ecstasy, THC vape bottles, and narcotics packaging material.^[17]

The PSR also detailed Ly's lengthy criminal history-a history that spanned his entire adult life.^[18] These convictions include several minor offenses, as well as more serious crimes such as burglary and criminal conspiracy to commit burglary, possession with the intent to manufacture or deliver a counterfeit controlled substance under Pennsylvania state law, and possession with the intent to distribute controlled substances under Pennsylvania state law.^[19] The two drug offenses formed the basis of a career offender enhancement, pursuant to U.S. Sentencing Guidelines Manual § 4B1.1 (2018).^[20] Because the PSR determined that Ly was a career offender, it calculated a Sentencing Guidelines range of 262 to 327 months' imprisonment, in accordance with USSG § 4B1.1(c)(3).^[21] At sentencing, Plea Counsel informed the Court that Ly had not previously seen the PSR, as the copy that Plea Counsel had mailed to Ly had been returned without delivery, and construction in the Courthouse had prevented Ly and Plea Counsel from meeting prior to the sentencing hearing.^[22] The Court therefore stood in recess to provide Ly the opportunity to discuss the PSR with Plea Counsel.^[23] Ly then confirmed that he had an opportunity to discuss the PSR with Plea Counsel, and there were no remaining issues or objections upon which the Court needed to rule before calculating the advisory Sentencing Guidelines range.^[24]

This Court therefore calculated a Sentencing Guidelines range of 262 to 327 months' imprisonment.^[25] Despite Plea Counsel's request for a downward variance, the Court imposed a within-Guidelines sentence of 262 months' imprisonment.^[26]The Court determined that such a sentence was warranted based primarily on the seriousness of the offense, along with other factors.^[27]

Ly thereafter filed a pro se notice of appeal with the United States Court of Appeals for the Third Circuit after Plea Counsel allegedly refused to file a notice of appeal on Ly's behalf.^[28] On appeal, the Third Circuit appointed a new attorney for Ly.^[29] However, the Government filed a motion to enforce the appellate waiver and summarily affirm Ly's conviction and sentence.^[30] Over the opposition of Ly's newly-appointed counsel, the Third Circuit granted the motion, enforced the appellate waiver, and summarily affirmed Ly's conviction and sentence.^[31] Ly did not file a petition for a writ of certiorari with the United States Supreme Court.

In 2022, Ly filed this timely 28 U.S.C. § 2255 motion challenging his conviction and sentence.^[32] Ly raises three distinct claims. First, he asserts that he received ineffective assistance of counsel, as Plea Counsel: (1) did not meet with Ly in person prior to the change of plea hearing; (2) did not provide Ly with sufficient time to review the PSR; (3) misled Ly when Plea Counsel “fraudulently led [Ly] to believe that [the] sentence would be 70-87 months”; (4) failed to object to the career offender enhancement; and (5) failed to file a notice of appeal.^[33] Second, Ly argues that his rights were violated by the failure to timely provide him with the PSR, which denied him the ability to object to the PSR and the career offender enhancement.^[34] Finally, Ly contends that the career offender enhancement was applied erroneously, as one of his convictions does not qualify as a controlled substance offense.^[35] These claims may broadly be placed in three categories: issues with the change of plea, issues with sentencing, and issues with Ly's appeal.

The Government has responded to Ly's § 2255 motion and asserts that the motion is without merit.^[36] The Government first argues that the plea agreement and its effects were fully explained to Ly, and counsel was not ineffective based on the erroneous estimated Sentencing Guidelines range offered during the change of plea hearing, since Plea Counsel did not offer that estimate and stated that Ly's prior convictions may alter the range, and Ly was informed that the Court could impose a more severe sentence if it wished.^[37] Second, with regard to any issues surrounding the PSR, the Government maintains that Ly cannot establish prejudice, as his prior convictions qualify as predicate offenses sufficient to support the career offender enhancement.^[38] Finally, the Government notes that Ly filed a pro se notice of appeal, was appointed counsel, and had his appeal dismissed, meaning that he suffered no prejudice from Plea Counsel's failure to file a notice of appeal.^[39] Ly has filed a reply brief, rendering this matter ripe for disposition.^[40] For the following reasons, the Court will deny Ly's motion.

II. DISCUSSION

“In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court established a two-part test to evaluate ineffective assistance of counsel claims.”^[41]“The first part of the Strickland test requires ‘showing that counsel made errors so serious that counsel was not functioning as the ‘counsel' guaranteed the defendant by the Sixth Amendment.'”^[42] In determining whether an attorney's performance is deficient, courts must “determine whether, in light of all the circumstances, the [attorney's] acts or omissions were outside the wide range of professionally competent assistance.”^[43] As the United States Supreme Court has emphasized:

Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has

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