United States v. Robertson

United States of America

v.Bruce Robertson, Defendant.

Crim. No. 2:09-CR-87

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF VERMONT

DATED: October 4, 2011

REPORT AND RECOMMENDATION

(Doc. 32)

Defendant Bruce Robertson, proceeding pro se, has moved to vacate his sentence of 188 months imprisonment pursuant to 28 U.S.C. § 2255 following his conviction for federal firearms offenses. (Doc. 32.) In support of his Motion, Robertson claims that he received ineffective assistance of counsel, citing his lawyer's failure to seek a downward departure for diminished capacity and to request a psychiatric evaluation in support of that departure. (Doc. 32 at 5.) For the following reasons, I recommend that Robertson's Motion be DENIED.

Background

In July 2009, Robertson, a previously convicted felon, was arrested after a gun was found in a vehicle he was operating. (Doc. 36, Tr. at 14:15-15:10; Doc. 1-1 at 1-2, ¶¶ 6-7.) During a post-arrest interview, Robertson admitted ownership of the gun, as well as possessing ammunition found on his person at the time of his arrest. (Doc. 36, Tr. at 14:23-15:10.) Robertson also informed police of the location of several explosive devices, which he made by placing a combination of high-density black powder andchemicals into a portion of a pipe with a fuse. (Id. at 17:7-14.) The police later seized and detonated these devices.

In July 2009, Robertson was charged with one count of possession of a firearm having sustained a prior felony conviction, in violation of 18 U.S.C. § 922(g)(1), and one count of production of a destructive device, in violation of the National Firearms Act, 26 U.S.C. §§ 5861(f), 5845(a), 5845(f), 5822, and 5871. (Doc. 14 at 1-2.) Because Robertson had previously sustained three prior convictions for crimes of violence as that term is defined in 18 U.S.C. § 924(e), he faced a 180-month mandatory minimum term of imprisonment under § 924(e). (See Doc. 21 at 1, ¶ 2; Presentence Report ("PSR") at 8, ¶ 36; 16, ¶ 56; 23, ¶ 94.)

In December 2009, Robertson signed a plea agreement with the Government, in which he agreed to "plead guilty to Count 1 of the Indictment charging him with possession of a weapon by a convicted felon . . . and Count 2 . . . charging him with production of a destructive device." (Doc. 21 at 1, ¶ 1.) In the written plea agreement, Robertson acknowledged that he faced a 180-month mandatory minimum for Count 1 pursuant to the Armed Career Criminal Act, 18 U.S.C. § 924(e), and a term of not more than ten years imprisonment for Count 2 pursuant to 26 U.S.C. § 5871. (Id. at 1, ¶ 2.) ¹ In exchange for Robertson's guilty plea, the Government agreed to recommend to the sentencing court that he be sentenced "at the low end of the [United States] Sentencing Guidelines range if the final offense level [was] 31 or above, and the final criminalhistory category [was] VI," and to "recommend that [Robertson] receive credit for acceptance of responsibility." (Id. at 3, ¶ 6.) The agreement further provided that Robertson entered into the agreement "with full knowledge and understanding" and "with the advice and assistance of his counsel" with whom he "had full opportunity to consult." (Id. at 6, ¶ 15.) In January 2011, Robertson pleaded guilty to both counts after the Court questioned him pursuant to Federal Rule of Criminal Procedure 11. (Id. at 1, ¶ 1; see Doc. 36.)

The United States Probation Office prepared a Presentence Report ("PSR") in anticipation of sentencing. The PSR determined that Robertson's total offense level was 31. (PSR at 8, ¶ 38.) The calculation of this total offense level included a three-level reduction for Robertson's acceptance of responsibility. (Id. at 8, ¶ 37.) The PSR concluded that a criminal history category of VI was appropriate due, in part, to the applicability of the Armed Career Criminal Act and Robertson's possession of a destructive device. (Id. at 16, ¶ 56.) The PSR further concluded that Robertson faced an advisory sentencing guideline range of 188 to 235 months, (PSR at 23, ¶ 95), with a mandatory minimum term of 180 months.

The PSR also described Robertson's medical history at length, including his anxiety, depression, post-traumatic stress disorder, and various medications. (See id. at 20, ¶ 81.) The PSR noted that Robertson claimed to have stopped taking his medication at the time of the offense and that he had frequent thoughts of suicide. (Id. at 20, ¶ 82.)

Prior to sentencing, Robertson's attorney filed a sentencing memorandum which detailed Robertson's history of drug and alcohol abuse and mental health issues. (SeeDoc. 27.) Counsel argued in the sentencing memorandum for a non-guideline sentence of 180 months. (Id.) At the sentencing hearing, the Court noted that it had read the PSR and there were no sentencing guideline application issues. (Doc. 37, Tr. at 3:3-6.) Counsel for Robertson renewed her written argument for a non-guideline sentence based on factors enumerated in 18 U.S.C. § 3553(a), including his "emotional issues." (Id. at 4:13.) Counsel argued that the pipe bombs were manufactured by Robertson "to commit suicide." (Id. at 5:18-19.) Nevertheless, after listening to Robertson's request, the Court noted both the seriousness of the offense and Robertson's prior criminal record (id. at 8:15-23), and concluded "that the guideline sentence [was] appropriate in this particular case" (id. at 8:13-14), and sentenced Robertson to 188 months incarceration (id. at 10:17-22).

Discussion

I. Ineffective Assistance of Counsel

Robertson moves, pursuant to 28 U.S.C. § 2255(a), to vacate his sentence. (See Doc. 32-1 at 5.) Specifically, Robertson claims that he received ineffective assistance of counsel, citing his attorney's failure to request a downward departure for his alleged diminished capacity at the time he committed the crimes. (See id. at 3.) Robertson also contends that his attorney should have requested a psychiatric evaluation in support of a downward departure, but failed to do so. (See id.) These claims lack merit.

Under 28 U.S.C. § 2255, "[a] prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution . . . may move the court whichimposed the sentence to vacate, set aside or correct the sentence." Id. at § 2255(a). To establish ineffective assistance of counsel under the Sixth Amendment, a defendant "must show: (1) that his trial and appellate lawyers' performance was deficient, and (2) that he was actually prejudiced as a result." Morales v. United States, 635 F.3d 39, 43 (2d Cir. 2011) (citing Strickland v. Washington, 466 U.S. 668, 686, 692-93 (1984)); see Gueits v. Kirkpatrick, 612 F.3d 118, 122 (2d Cir. 2010).

A. Deficient Performance

To establish constitutionally-deficient performance, a defendant must show that his counsel's representation "fell below an objective standard of reasonableness." Bell v. Miller, 500 F.3d 149, 155 (2d Cir. 2007) (internal quotation marks omitted). In meeting this burden, a defendant must overcome the "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance" under the Sixth Amendment. Palacios v. Burge, 589 F.3d 556, 561 (2d Cir. 2009) (internal quotation marks omitted). For this reason, "[s]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable . . . and even strategic choices made after less than complete investigation do not amount to ineffective assistance--so long as the known facts made it reasonable to believe that further investigation was unnecessary." Henry v. Poole, 409 F.3d 48, 63 (2d Cir. 2005) (citations and internal quotation marks omitted); see United States v. Bayless, 201 F.3d 116, 130-31 (2d Cir. 2000) (holding that attorney's decision not to file a timely motion was reasonable because it may have been based on strategic considerations).

During sentencing, Robertson's attorney made a strategic choice to seek a non-guideline sentence of 180 months, the mandatory minimum term of imprisonment, instead of arguing for a diminished capacity downward departure. (See Doc. 27 at 4-5.) Robertson's attorney enumerated several factors in support of this request, including Robertson's struggles with mental illness, his familial connections, the nature of his prior crimes, and his cooperation with the authorities. (See id.) The fact that this strategy was ultimately unsuccessful does not necessarily render Robertson's counsel ineffective. See United States v. Monzon, 359 F.3d 110, 120 (2d Cir. 2004) (providing that "counsel's strategic choices are not to be judged by hindsight"); Eze v. Senkowski, 321 F.3d 110, 132 (2d Cir. 2003) (providing that courts should "refus[e] to use perfect hindsight to criticize unsuccessful trial strategies"). Rather, his attorney's request for a non-guideline sentence was objectively reasonable under the circumstances because it effectively included a diminished capacity argument. See United States v. Berkovich, 168 F.3d 64, 67 (2d Cir. 1999) (providing that "actions or omissions that might be considered sound trial strategy do not constitute ineffective assistance" (internal quotation marks omitted)). Robertson's attorney's performance, therefore, was not deficient.

B. Actual Prejudice

To establish actual prejudice under the second prong of the Strickland test, "the defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Lynn v. Bliden, 443 F.3d 238, 247 (2d Cir. 2006) (quoting Lindstadt v. Keane, 239 F.3d 191, 204 (2d Cir. 2001)). Thus, in assessing Robertson's claim of ineffective assistance of counsel, the court must consider whether it is reasonably probable that he would havereceived a downward departure for diminished capacity if his counsel had raised the issue before the sentencing...