United States v. Sepling

UNITED STATES OF AMERICA v. PETER SEPLING.

NO. 3:11-CR-0195

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

September 25, 2017

(JUDGE CAPUTO)

MEMORANDUM

Presently before me is the Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (Doc. 161) filed by Petitioner Peter Sepling ("Petitioner"). Petitioner pled guilty in this Court to Count I of the Indictment charging Petitioner with aiding and abetting the importation of in excess of one (1) kilogram of gamma butyrolactone ("GBL") from China to the United States in violation of 21 U.S.C. § 952. After Petitioner's guilty plea was accepted but before sentencing, Petitioner was arrested and charged in a one-count criminal complaint with conspiring to import methylone into the United States in violation of 21 U.S.C. § 963. Pursuant to the agreement of the parties, the criminal conduct relating to the importation of methylone was incorporated into the GBL case for purposes of relevant conduct. In exchange for Petitioner's agreement to accept responsibility for his conduct involving the importation of methylone, the United States agreed to withdraw the one-count criminal complaint. The United States Probation Office thereafter prepared a Presentence Investigation Report ("PSR") indicating a guidelines sentencing range of 188-235 months in prison. Petitioner was sentenced to a prison term of 102 months.

Now, Petitioner contends that his sentencing counsel was constitutionally ineffective for the following reasons: (1) failing to investigate methylone; (2) failing to participate in negotiations concerning drug quantity, relevant conduct, and marijuana-to-methylone drug equivalency ratio; (3) failing to argue that Petitioner was a minor participant in the offense conduct; and (4) failing to correctly advise Petitioner on the merits of a direct appeal. Because he fails to satisfy the standard for evaluating ineffective assistance of counsel claims set forth by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), Petitioner's § 2255 motion will be denied.

I. Background

Petitioner was charged in Counts 1-5 of a six-count Indictment that was returned by a Federal Grand Jury on June 7, 2011. (See PSR, ¶ 1). Those charges were brought following an investigation into the importation of GBL and the trafficking of anabolic steroids in or around Luzerne County, Pennsylvania. (See id. at ¶ 6). More particularly, Petitioner ordered GBL through the internet and paid another individual to accept the parcels, and then Petitioner would sell the GBL for $30.00 per ounce. (See id. at ¶¶ 13, 15). In total, Petitioner was involved in the distribution and possession with intent to distribute 1.1 kilograms of GBL. (See id. at ¶ 16).

On October 28, 2013, Petitioner appeared in this Court with his counsel, Joseph P. Nahas ("Nahas" or "sentencing counsel"), and, as part of a written plea agreement, Petitioner pled guilty to Count 1 of the Indictment. (See id. at ¶ 2; see also Doc. 123, "Plea Agreement," ¶ 1 ). The plea agreement also provided, inter alia, that: (1) pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C), the sentencing guidelines would be calculated without reference to the career offender guideline; (2) the United States would recommend a three-level reduction in offense level if Petitioner adequately demonstrated acceptance of responsibility; (3) Petitioner would fully cooperate with the United States; and (4) the United States would move for dismissal of the remaining counts after sentencing. (See Plea Agreement, ¶¶ 1, 9, 11A, 13). The guilty plea was accepted and a presentence investigation was ordered. (See PSR, ¶ 2).

Following Petitioner's plea, Homeland Security agents began an investigation into a methylone smuggling and distribution organization in the Wilkes-Barre area. (See id. at ¶ 13). As part of that investigation, Homeland Security agents identified Petitioner as a participant in the importation of five (5) or six (6) packages containing a total of approximately ten (10) kilograms of methylone from July 2013 to January 2014. (See id. at ¶ 27). Petitioner would utilize email to arrange for the shipments to be made from China. (See id.). During a recorded conversation, Petitioner discussed the seizure of a prior shipment, the need to be careful with law enforcement, the possibility of ordering a new package containing 300 grams of methylone, and changing the methodin which the methylone was concealed in shipments. (See id. at ¶ 28). Petitioner was arrested shortly after the recorded conversation at his residence, where agents found approximately 125 grams of methylone. (See id.). Petitioner was charged in a one-count criminal complaint with conspiring to import methylone into the United States in violation of 21 U.S.C. § 963. (See id. at ¶ 3).

After Petitioner was arrested on the methylone charge, Ingrid Cronin ("Cronin") was assigned to represent Petitioner on that charge. (See Doc. 161-1, "Sepling Decl.", ¶ 1). According to Petitioner, during his discussions with Cronin, he was led to believe that the quantity of methylone at issue that was going to be made part of the GBL case as relevant conduct was (3) kilograms and not ten (10) kilograms. (See id.). Based on these conversations, Petitioner was under the impression that he would be "saving the prosecution time and resources thus justifying a lower sentencing exposure." (Id. at ¶ 2). Petitioner thus believed that his prison exposure was 60 to 80 months. (See id. at ¶ 3). Cronin during that conversation never indicated to Petitioner that he would not receive the acceptance of responsibility reduction on his sentence. (See id. at ¶ 4). Petitioner further declares that once he agreed to the transfer of the relevant conduct to the GBL case, he never received a copy of the PSR, he had no knowledge that the PSR's calculations were derived from a ten (10) kilogram quantity of methylone at a marijuana-to-methylone ratio of 500:1, and/or that the PSR did not include reductions for acceptance of responsibility or as a minor participant. (See id. at ¶ 5). Had he been furnished with a copy of the PSR, Petitioner represents that he would have objected to the calculation of the base offense level. (See id. at ¶ 6). Lastly, Petitioner maintains that his decision to forego a direct appeal was founded on Nahas' representation that Petitioner had no viable claim on appeal since he received a below guidelines range sentence. (See id. at ¶ 7).

The United States Probation Office prepared a PSR prior to sentencing. (See PSR, generally). The PSR calculated Petitioner's base offense level as 34. (See id. at ¶ 34). The PSR did not subtract a three-level reduction for acceptance of responsibility in light of Petitioner's participation in the importation of methylone from China. (See id. at ¶ 31). The PSR further recognized that, based on the terms of the plea agreement, Petitioner's sentencing guidelines were calculated without reference to the career offender provisions, resulting in a total offense level of 34 and a criminal history category of V. (See id. at ¶ 81). The PSR further noted that a two-level downward variance may beapplicable pursuant to 18 U.S.C. § 3553(a) to account for an anticipated amendment to the sentencing guidelines. (See id. at ¶ 95). Accordingly, with the two-level downward variance, the guidelines range for Petitioner was between 188 and 235 months. No objections were raised to the PSR. (See Doc. 156, "Sentencing Tr.," 5:9-20).

Petitioner appeared for sentencing on May 27, 2014. (See id., generally). At sentencing, Nahas asserted that the PSR incorrectly calculated the base offense level at 34 based on ten (10) kilograms of methylone when Petitioner was only caught with three (3) kilograms. (See id. at 5:22-6:1). Nahas thus contended that Petitioner's base offense level should have been 32 as opposed to 34. (See id. at 6:11-25). And, applying the two-level variance based on the anticipated amendments to the sentencing guidelines, Nahas argued that the appropriate offense level was 30 with a criminal history category of V. (See id.). Nahas then requested a further reduction of the base level to 28 because Petitioner was only a minimal participant in the importation of the methylone. (See id. at 7:8-22). Ultimately, Petitioner's sentencing counsel advocated for a prison sentence of between five (5) and seven (7) years. (See id. at 12:3-9).

Petitioner spoke on his own behalf at sentencing. (See id. at 12:25-18:21). Petitioner described methylone as "like ecstasy. If ecstasy is a ten of high feeling when you get high and dance around and it feels good, getting rubbed by your girlfriend, that lasts six hours. It's a ten. This stuff [methylone] is six and lasts about an hour and a half." (Id. at 14:19-23).¹ Petitioner further explained that he believed his agreement regarding the methylone was for three (3) kilograms, and, as a result, Petitioner believed his sentencing exposure was 63 months, and that he'd be happy with 84 months. (See id. at 15:7-12, 16:13). Petitioner further argued that he thought he would receive a two-level reduction from his base offense as a "minimal participant." (See id. at 16:6-7, 16:17). With regards to the importation of the methylone, Petitioner explained that he found the company that sold methylone and he ordered it. (See id. at 19:7). Another individual provided Petitioner the address to have the methylone shipped to, and that individual sent the money, picked up the packages, andbroke down the drug. (See id. at 19:9-11). Petitioner stated that he ordered methylone ten (10) times, and he got a "decent amount" of money for his involvement. (See id. at 19:13-23). While Petitioner used the drug and partied with it, he never distributed methylone; however, Petitioner was aware that the other individual was distributing the drug. (See id. at 19:24-20:2).

At the conclusion of Petitioner's...