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United States v. Rossiter

United States District Court, N.D. Indiana, Hammond Division

September 2, 2016

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
TOMMY ROSSITER, Defendant/Petitioner.

          OPINION AND ORDER

          RUDY LOZANO, Judge United States District Court

         This matter is before the Court on the Motion Under 28 U.S.C. Section 2255 To Vacate, Set Aside, or Correct Sentence By a Person in Federal Custody, filed by Tommy Rossiter on February 20, 2015 (DE #400). For the reasons set forth below, the section 2255 motion is DENIED without hearing. The Clerk is ORDERED to DISMISS this case WITH PREJUDICE. The Clerk is ORDERED to distribute a copy of this order to Tommy Rossiter, #11869-027, Elkton FCI-FSL, Federal Correctional Institution (FSL), Inmate Mail/Parcels, P.O. Box 10, Lisbon, OH 44432, or to such other more current address that may be on file for the Defendant. Further, this Court declines to issue Defendant a certificate of appealability.

         BACKGROUND

         On October 20, 2011, an indictment was filed against Defendant, Tommy Rossiter (“Rossiter”) and numerous co-defendants. Rossiter was charged with conspiracy to possess with intent to distribute and distribute a quantity of a mixture and substance containing a detectable amount of heroin, in violation of 21 U.S.C. § 846 and 21 U.S.C § 841(a)(1). Rossiter entered into a plea agreement with the Government, and the agreement was filed with this Court on August 21, 2012. (DE #120). In it, Rossiter agreed to plead guilty as charged. (Id., ¶ 7). The Government and Rossiter also reached certain agreements that were not binding on the Court. (Id.). Specifically, they agreed that if Rossiter continued to accept responsibility for his criminal conduct, he should receive a two point, and if eligible, an additional one point reduction in his offense level. (Id., ¶ 7(c)(i)). Additionally, they agreed that the Government would recommend that the Court impose a sentence equal to the minimum of the applicable Guideline range. (Id., ¶ 7(c)(ii)). Furthermore, the Government agreed to consider filing a motion for downward departure with the Court pursuant to Guideline section 5K1.1 and possibly 18 U.S.C. 3553(e). (Id., ¶ 7(e)).

         In exchange for these benefits, the plea agreement contained the following wavier:

I understand that the law gives a convicted person the right to appeal the conviction and the sentence imposed; I also understand that no one can predict the precise sentence that will be imposed, and that the Court has jurisdiction and authority to impose any sentence within the statutory maximum set for my offense as set forth in this plea agreement; with this understanding and in consideration of the government's entry into this plea agreement, I expressly waive my right to appeal or to contest my conviction and my sentence imposed or the manner in which my conviction or my sentence was determined or imposed, to any Court on any ground, including any claim of ineffective assistance of counsel unless the claimed ineffective assistance of counsel relates directly to this waiver or its negotiation, including any appeal under Title 18, United States Code, Section 3742 or any post-conviction proceeding, including but not limited to, a proceeding under Title 28, United States Code, Section 2255[.]

(Id., ¶ 7(f)).

         Further, Rossiter agreed that his attorney had “done all that anyone could do to counsel and assist [him], ” that he was offering his guilty plea “freely and voluntarily and of [his] own accord, ” that “no promises [had] been made to [him] other than those contained in [the] agreement, ” and that he had not been “threatened in any way by anyone to cause [him] to plead guilty in accordance with [the] agreement.” (Id., ¶¶ 10-11).

         This Court held a change of plea hearing on September 4, 2012. (DE ##161, 363). When asked whether he was “fully satisfied with the counsel, representation, and advice given to [him] in this case by Mr. Holesinger as [his] attorney, ” Rossiter replied “yes, Your Honor.” (DE #363 at 8). After Rossiter read through paragraph 7 of his plea agreement, the Court asked him whether he read it previously, understood it, agreed with it, and was asking the Court to approve it. (Id. at 10-11). Rossiter answered yes to each of these questions. (Id.). Rossiter acknowledged repeatedly that he agreed with the individual and collective terms of the plea agreement and confirmed that he wanted to plead guilty under the agreement. (Id. at 10-14).

         The Court informed Rossiter that for the count he was pleading guilty to, “the most that you could get would be 20 years in jail, a fine of up to $1, 000, 000 or a combination of both of those, up to life supervised release and a $100 special assessment, ” and Rossiter answered that he understood. (Id. at 14). Additionally, the Court advised Rossiter that the least he could get would be probation, no fine, and no supervised release, but that he would still have the $100 special assessment. (Id. at 14-15). Rossiter again indicated that he understood. (Id. at 15).

         The Court also confirmed that Rossiter understood that the Court would ultimately decide his sentence and that neither the Government's recommendations nor the Guidelines were binding. (Id. at 15-16). This included clear notification that the Government's recommendation that Rossiter be sentenced to the minimum of the applicable guideline range was not binding on the Court. (Id. at 20-21).

         The Court also discussed the cooperation provision of the plea agreement with Rossiter. (Id. at 21-25). Rossiter indicated he understood the risks of cooperating, and further understood that the Government could, based on his cooperation, file a motion under 5K1.1 seeking a sentence below the applicable sentencing guideline calculation. (Id. at 21-24). It was further explained that, even if the Government filed a motion under 5K1.1, the Court has discretion to grant or deny the motion. (Id. at 25-26).

         During the hearing, this Court questioned Rossiter extensively about his voluntary waiver of his right to appeal, including the following excerpt from that colloquy:

Q: Let's go on to subparagraph (f). That deals with appeals, Mr. Rossiter. In this case, you have acknowledged that I have the jurisdiction and authority to sentence you up to the maximum provided by the statute. Remember you and I talked about that? That's the 20 years in jail, a fine of up to a million dollars or a combination of both of those, up to life supervised release and a $100 special assessment. Do you understand that?
A: Right, Your Honor.
Q: Do you understand that the law gives all defendants a right to appeal their conviction and/or sentence in a case? Do you understand that?
A: Yes, Your Honor.
Q: In this case what you are doing is you're giving up all those rights for all practical purposes. There's some rights you can't give up, like jurisdiction. For all practical purposes, you're giving up all of your rights to an appeal. Do you understand that?.
A: Right, Your Honor.
Q: That includes incompetence of counsel except as it relates to this waiver and/or its negotiation. Do you understand that?
A: Yes, Your Honor.
Q: Do you understand that the government is not giving up any of their ...

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