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United States v. Forbes

United States District Court, N.D. Indiana, South Bend Division

February 9, 2017

UNITED STATES OF AMERICA
v.
ANDRE ALLAN FORBES

          OPINION AND ORDER

          JON E. DEGUILIO Judge United States District Court

         Defendant Andre Forbes pled guilty with the benefit of a plea agreement to seven of the eight charges in the superseding indictment and received a total sentence of 216 months imprisonment. Forbes admitted to distributing cocaine on or about September 10, 2013 (count 1); distributing crack cocaine in 2013 on October 1, 17, 22, and 30 (counts 2-5, respectively); possessing a firearm as a felon in or around the summer of 2013 through October 2013 (count 7); and engaging in witness tampering (count 8). In exchange for pleading guilty, the government agreed to dismiss count 6, which charged Forbes with possessing a firearm in furtherance of a drug trafficking crime “in or around September - October 2013”-a conviction for which would have required Forbes to be sentenced to an additional twenty-five years (up to life) imprisonment under 18 U.S.C. § 924(c)(1)(C)(i) given his previous 2010 conviction under § 924(c).

         With respect to count 6, defense counsel successfully sought a bill of particulars [DE 91]. In response, the government indicated they intended to prove that the underlying predicate crime for the § 924(c) charge included over 126 federal drug trafficking crimes committed by Forbes while armed during the specified time frame [DE 98]. The undersigned entered an order directing the government to show cause for why count 6 of the superseding indictment should not be dismissed for failing to adequately apprise Forbes of the nature of the charge [DE 103-1]. The same order indicated that because the defendant did not contest that counts 1-5 could serve as predicates, count 6 could be properly limited to those specified predicates. The following day, Forbes entered into the plea agreement [DE 105] which resulted in the dismissal of count 6 and his ultimate sentence.

         Despite the fact that Forbes' plea agreement contained an appeal waiver, he filed a direct appeal which was dismissed after appointed counsel sought to withdraw the appeal as frivolous. United States v. Forbes, 637 F. App'x 229 (7th Cir. 2016). Forbes then filed a timely petition pursuant to 28 U.S.C. § 2255 which has been fully briefed by the parties [DE 139, 144, 146, 148][1] and raises a number of issues mainly under the rubric of ineffective assistance of counsel since the appeal waiver excepted such claims.[2]

         I. Standard of Review

         Section 2255(a) of Title 28 provides that a federal prisoner may claim “the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, [and] may move the court which imposed the sentence to vacate, set aside or correct the sentence.” 28 U.S.C. § 2255(a). The Seventh Circuit has recognized that § 2255 relief is appropriate only for “an error of law that is jurisdictional, constitutional, or constitutes a fundamental defect which inherently results in a complete miscarriage of justice.” Harris v. United States, 366 F.3d 593, 594 (7th Cir. 2004) (citation omitted). Further, “a Section 2255 motion is neither a recapitulation of nor a substitute for a direct appeal.” Olmstead v. United States, 55 F.3d 316, 319 (7th Cir. 1995) (citation omitted). Relief under § 2255 is extraordinary because it seeks to reopen the criminal process to a person who has already had an opportunity of full process. Almonacid v. United States, 476 F.3d 518, 521 (7th Cir. 2007) (citing Kafo v. United States, 467 F.3d 1063, 1068 (7th Cir. 2006)). Consequently, “[i]f it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion.” Rule 4, Rules Governing Section 2255 Proceedings for the United States District Courts. A court may also deny a § 2255 motion without an evidentiary hearing if “the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.” 28 U.S.C. § 2255(b).

         II. Discussion

         A. Ineffective Assistance of Counsel

         To prevail on a claim of ineffective assistance of counsel, a defendant must first show that his attorney performed deficiently-that the representation was incompetent and “fell below an objective standard of reasonableness.” Strickland v. Washington, 466 U.S. 668, 688 (1984); Koons v. United States, 639 F.3d 348, 351 (7th Cir. 2011). Second, a defendant must show that “the deficient performance prejudiced the defense.” Strickland, 466 U.S. at 687. Forbes cannot make this showing here.

         Forbes suggests that his defense attorney, Mr. Soliday, forced him to enter into the plea agreement by threatening him with a possible sentence of up to life if he didn't accept the plea, and advising him that he would then only be facing a maximum sentence of five years if he accepted the plea [DE 139 at 5, 10-11]. He further contends that Mr. Soliday was ineffective by failing to incorporate into the plea agreement a stipulation about the drug quantity to be used in setting the base offense level for purposes of calculating the guidelines [DE 139 at 17]. Forbes also argues that Mr. Soliday later failed to contest the relevant drug quantity at sentencing and failed to be prepared to challenge the credibility of the government's sentencing witness, Agent Sheldon Scott [DE 139 at 5-6, 13-17]. Lastly, Forbes alleges that Mr. Soliday failed to advise him of the Court's show cause order with respect to count 6, which Forbes believes showed that count 6 was “faulty” [DE 139 at 11]. Forbes contends that had he been properly advised about the plea, he would not have signed the plea agreement or would have made counsel withdraw it, and he would have gone to trial [DE 139 at 19-20]. Contrary to those assertions, the relief Forbes seeks is a reduction in his sentence.

         As to Forbes' assertion that Mr. Soliday improperly threatened him with a possible sentence of life if he didn't accept the plea-this argument is quickly rejected. While Forbes may have viewed such information as threatening, defense counsel's cautioning Forbes as to his maximum potential sentence of incarceration was completely appropriate given that absent the dismissal of the pending § 924(c) charge (count 6), Forbes would have faced a potential life sentence under that statute.

         As to the other claims, Forbes' assertions under oath at the change of plea hearing belie many of his complaints about his attorney. Forbes' plea agreement properly indicated the maximum jail terms that could be imposed on each count, confirmed that he was offering his plea of guilty “freely and voluntarily and of [his] own accord” with no promises made to him other than those contained in the plea agreement including no promises with respect to “the specific sentence that will be imposed, ” and that he had not been “threatened in any way by anyone to cause [him] to plead guilty” [DE 105]. At the change of plea hearing, Forbes was advised of the nature of the charges and the possible penalties [DE 131 at 3-20]. With respect to the maximum penalties for imprisonment, Forbes was explicitly advised that the total possible sentence for all of the counts was 180 years [DE 131 at 19]. Forbes advised the Court that he understood the possible penalties [DE 131 at 20]. Forbes admitted that he had discussed the sentencing guidelines with Mr. Soliday and that he understood the actual guideline range could not be determined until probation prepared a presentence investigation report [DE 131 at 25-26]. Forbes explicitly acknowledged that he knew his sentence could be greater or lesser than the advisory guideline sentencing range and could be different than predicted by his attorney [DE 131 at 26-27]. Not only did Forbes confirm that he understood all of the terms of his plea agreement [DE 131 at 22], but on two occasions Forbes responded affirmatively to separate inquiries by the Court that he was entering the plea agreement freely and voluntarily, without having been forced or threatened into signing the agreement, and without promises made other than those contained in the plea agreement [DE 131 at 21-22, 27].

         Forbes has provided no explanation for overriding his sworn statements made when entering his guilty plea and he cannot create an issue of fact as to his counsel's advice (or as to the voluntariness of his plea for that matter) by simply contradicting these admissions now in his § 2255 petition. As reasoned in Hutchings, “[j]ustice would be ill-served, and the utility of the Rule 11 colloquy would be undermined, by allowing [defendant] to renege on his representations under oath to the district court that there were no promises made to him to induce his guilty plea.” Hutchings v. United States, 618 F.3d 693, 699 (7th Cir. 2010); see also, Wyatt v. United States, 574 F.3d 455, 458-59 (7th Cir. 2009); United States v. Peterson, 414 F.3d 825, 827 (7th Cir. 2005) (“[j]udges need not let litigants contradict themselves so readily; a motion that can succeed only if the defendant committed perjury at the plea proceedings may be rejected out of hand unless the defendant has a compelling explanation for the contradiction.”). As the Seventh Circuit noted in dismissing Forbes' appeal, Forbes lacks a basis to challenge the voluntariness of his guilty plea given substantial compliance with Rule 11. United States v. Forbes, 637 F.App'x 229 (7th Cir. 2016) (granting counsel's motion to withdraw consistent with Anders). In light of the record evidence and Forbes' statements made under oath at the plea hearing, Forbes cannot now complain that his plea was based on coercion or misrepresentations by his attorney that he would face a lesser sentence. See United States v. Loutos, 383 F.3d 615, 619 (7th Cir. 2004) (“Representations and admissions made by a defendant in a plea agreement and during a change of plea hearing are . . . entitled to ‘a presumption of verity.'”) (quoting United States v. Pike, 211 F.3d 385, 389 (7th Cir. 2000)).

         As to the contents of Forbes' plea agreement and the fact that it did not contain a particular stipulation with respect to the drug quantity [DE 139 at 17; DE 148 at 10-12], Forbes knew this before pleading guilty. At the change of plea hearing, Forbes acknowledged reading the entirety of the plea agreement, having discussed it with his attorney, and understanding the terms of the plea agreement [DE 131 at 21-22]. He further acknowledged having contemplated the sentencing guidelines with his attorney, and understanding that the ultimate sentence could not be determined until after preparation of the presentence report which could then result in a sentence higher than the guideline range and different than estimated by his attorney [DE 131 at 25-27]. Again, Forbes made these affirmations under oath, and the Court is entitled to rely on them. See United States v. Weathington, 507 F.3d 1068, ...


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