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United States v. Bissacco

United States District Court, Sixth Circuit

May 29, 2013

UNITED STATES OF AMERICA, Plaintiff,
v.
ANTHONY EBISSACCO, Defendant. Civil Case No. 3:12-cv-18

REPORT AND RECOMMENDATION [1]

MICHAEL J. NEWMAN, Magistrate Judge.

This case is now before the Court on Defendant Anthony Bissacco's pro se Motion to Vacate Sentence pursuant to 28 U.S.C. § 2255 (doc. 615); and the Government's memorandum in opposition thereto (doc. 620). Defendant did not file a reply memorandum.

I. Procedural History

Defendant was initially indicted in this Court in October 2006 for charges related to his involvement in a large marijuana trafficking conspiracy. Doc. 1. A Third Superseding Indictment was filed in November 2007. Doc. 235.

On January 12, 2009, Defendant entered into a written plea agreement, whereby he agreed to plead guilty to Count One of the Third Superseding Indictment: Conspiracy to Possess with Intent to Distribute in excess of 1, 000 kilograms of marijuana, a Schedule I controlled substance, in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A). Doc. 414 ¶ 1. In return, the Government agreed to dismiss Counts Two, Three and Four, and further "agree[d] that a maximum imprisonment term of 180 months [was] appropriate in this case" (though the advisory range under the Sentencing Guidelines was calculated to be 188-235 months). Id. ¶¶ 2, 7. The plea agreement specified the mandatory minimum and maximum penalties for Count One ( i.e., 10 years to life imprisonment). Id. ¶ 2. Further, Defendant acknowledged the following: (1) he reviewed the attached Statement of Facts, discussed it with his attorney, and agreed that it was "accurate and true." id. ¶ 11; (2) he had an opportunity to discuss the terms of the plea agreement with his attorney, and he "underst[ood] and accept[ed] those terms, " id. ¶ 14; and (3) "his attorney had provided effective assistance in this matter." Id.

The plea agreement also included an appeal waiver, which stated as follows:

The defendant acknowledges having been advised by counsel of defendant's rights, in limited circumstances, to appeal the conviction or sentence in this case, including the appeal right conferred by 18 U.S.C § 3742, and to challenge the conviction or sentence collaterally through a post-conviction proceeding, including a proceeding under 28 U.S.C. § 2255. The defendant expressly and voluntarily waives those rights except nothing in this paragraph shall act as a bar to the defendant perfecting any legal remedies he may otherwise have on appeal or collateral attack respecting claims of ineffective assistance. The defendant further reserves the right to appeal: (a) any punishment in excess of the statutory maximum; (b) any punishment to the extent it constitutes an upward departure from the Sentencing Guidelines; or (c) any punishment exceeding that which would result from accepting the Guideline Stipulations set forth in this Agreement. The defendant understands that by virtue of this Agreement, the defendant is waiving and giving up any right he may otherwise have to appeal a failure or refusal on the part of the sentencing Court to downward depart.

Id. ¶ 10. Finally, the plea agreement clarified that the document contained the entire plea agreement between Defendant and the government, and "[n]o other agreements, promises, deals, bargains or understandings exist which modify or alter these terms." Id. ¶ 14.

Defendant and his attorney both signed and dated the plea agreement, as well as the attached Statement of Facts. Id. at PageID 1480-81. Additionally, Defendant, his attorney, and counsel for the government initialed each page of the plea agreement. See doc. 414.

On January 12, 2009, Defendant came before the Court for a plea hearing. See doc. 588. The Court first asked Defendant questions to establish his competence to plead guilty. Id. at PageID 2270-72. Further, the Court confirmed that Defendant understood the charges against him, including the Statement of Facts supporting those charges. Id. at PageID 2273-78. The Court then advised Defendant of the mandatory minimum sentence for this charge as well as the maximum sentence for the charge, and explained how the Guidelines will be used to calculate an advisory sentence. Id. at PageID 2278-85, 2287-90. Upon the Court's request, Defendant was advised by his attorney, on the record, as to the sentencing range under the Guidelines as applied to his case.[1] Id. at PageID 2285-87. The Court further advised Defendant of his right to a jury trial. Id. at PageID 2290-91.

Moreover, the Court reviewed the plea agreement with Defendant on the record, and Defendant stated that he understood and accepted the terms of the plea agreement. Id. at PageID 2291-94. Defendant further confirmed that his attorney was able to answer all his questions with respect to the plea agreement, stating "Mr. Jensen has done a perfect job." Id. at PageID 2292. Id. In reviewing the plea agreement, the Court specifically pointed out the appeal waiver provision:

The Court: And you understand also that in paragraph 10, Mr. Bissacco, that you are, to the extent that the law allows[, ] waiving your right to appeal the sentence that the Court would impose and how the Court calculates and determines that sentence. Do you understand that?
Defendant: I do understand.

Id. at PageID 2293-94 ...


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