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Negroni v. United States

United States District Court, D. Connecticut

August 2, 2017

ERNIE NEGRONI, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          RULING ON PETITION TO VACATE, SET ASIDE, OR CORRECT SENTENCE

          Stefan R. Underhill United States District Judge.

         On June 13, 2016, Ernie Negroni filed a petition to vacate, set aside, or correct his sentence under section 2255 of Title 28 of the United States Code (“section 2255”). See Mot. to Vacate (doc. # 1). In his petition, Negroni claims that the sentence he received is invalid because it was based, at least in part, on an improper calculation of the United States Sentencing Guidelines (“Guidelines”). Specifically, Negroni argues that his trial counsel was ineffective for failing to object to a provision in Negroni's presentence report (“PSR”) that documented a 2005 criminal conviction used to calculate his criminal history score. Negroni contends that the 2005 conviction had been vacated and thus could not factor into his criminal history score. The failure of his counsel to object to that provision in the PSR amounted to constitutionally ineffective assistance of counsel. Negroni argues that he was prejudiced by such ineffective assistance because the failure to object resulted in a criminal history score that was three points higher than it would otherwise have been, which resulted in him being placed into Criminal History Category IV instead of Criminal History Category III. That, he alleges, resulted in an increased Guidelines range and an increased term of incarceration.

         The government argues that the petition must be denied because, as a part of his plea agreement, Negroni waived his right to collaterally attack his sentence. In the event that Negroni has not waived that right, the government contends that the petition should be denied because Negroni has no factual basis for his contention that his 2005 conviction was vacated. For the reasons set forth below, the petition is denied.

         I. Standard of Review

         Section 2255 provides a prisoner in federal custody an opportunity to challenge the legality of his or her sentence. To obtain relief under section 2255, the petitioner must show that his or her prior sentence was invalid because: (1) it was imposed in violation of the Constitution or the laws of the United States; (2) the court lacked jurisdiction to impose the sentence; (3) it exceeded the maximum detention authorized by law; or (4) it is otherwise subject to collateral attack. 28 U.S.C. § 2255(a). The standard is a high one; even constitutional errors will not be redressed through a section 2255 petition unless they have had a “substantial and injurious effect” that results in “actual prejudice” to the petitioner. Brecht v. Abrahamson, 507 U.S. 619, 623 (1993) (internal citations omitted); Underwood v. United States, 166 F.3d 84, 87 (2d Cir. 1999) (applying Brecht's harmless error standard to section 2255 petition).

         II. Background

         On August 1, 2013, a grand jury returned an indictment charging Negroni with: (1) dealing firearms without a license, in violation of 18 U.S.C. § 922(a)(1)(A); (2) interstate transfer of firearms, in violation of 18 U.S.C. § 922(a)(5); (3) unlawful possession of firearms by a felon, in violation of 18 U.S.C. § 922(g)(1); and (4) unlawful possession of firearms and ammunition by a felon, in violation of 18 U.S.C. § 922(g)(1). On February 3, 2014, in accordance with a written plea agreement, Negroni pleaded guilty to Count Three of the indictment, charging him with the unlawful possession of firearms. As a part of his plea agreement, Negroni agreed to waive any right he may have to appeal his sentence or conviction, or to collaterally attack that sentence or conviction. The relevant portion of the plea agreement provided:

The defendant acknowledges that under certain circumstances he is entitled to challenge his conviction and sentence. The defendant agrees not to appeal or collaterally attack in any proceeding, including but not limited to a motion under 28 U.S.C. § 2255 and/or § 2241, the conviction or sentence imposed by the Court if that sentence does not exceed 87 months' imprisonment, a 3-year term of supervised release, and a $100, 000 fine, even if the Court imposes such a sentence based on an analysis different from that specified above. Similarly, the Government will not appeal a sentence imposed within or above the stipulated sentencing range. The Government and the defendant agree not to appeal or collaterally attack the Court's imposition of a sentence of imprisonment concurrently or consecutively, in whole or in part, with any other sentence. The defendant acknowledges that he is knowingly and intelligently waiving these rights. Furthermore, the parties agree that any challenge to the defendant's sentence that is not foreclosed by this provision will be limited to that portion of the sentencing calculation that is inconsistent with (or not addressed by) this waiver.

         Plea Agreement, United States v. Negroni, No. 3:13-cr-152 (SRU) (doc. # 40) (emphasis in original).

         During the plea hearing, I reviewed the appeal waiver provision of the agreement and I confirmed with Negroni that he understood the rights he was relinquishing as part of the agreement. I explained to him the parties' agreement with respect to his criminal history score (and resulting Criminal History Category), the proposed Guidelines calculation, and the recommended sentencing range. Change of Plea Hr'g Tr. at 16, 17, 24, United States v. Negroni, No. 3:13-cr-152 (SRU) (doc. # 49). I also explained that I was not bound to accept the parties' proposed calculations and that Negroni's appeal waiver would be enforceable even if I imposed a sentence upon an analysis different from what is in the plea agreement. Id. at 25. After describing the plea agreement, I asked Negroni if there was anything in that agreement that surprised him or was different from what he thought it said. Negroni did not raise any issues with the agreement and confirmed that I had accurately read the agreement into which Negroni wished to enter.

         After I confirmed that Negroni understood the terms of the agreement, the parties executed the agreement. I also made a finding that Negroni was fully competent and capable of entering an informed plea, he was aware of the terms of the agreement, and was knowingly and voluntarily waiving certain rights and pleading guilty to the offense. Id. at 36-37.

         Thereafter, a PSR was prepared by the U.S. Probation Office. The PSR calculated Negroni's Guidelines range to be 70 to 87 months of imprisonment based on a total offense level of 23 and a Criminal History Category of IV. PSR at ¶ 95, United States v. Negroni, No. 3:13-cr-152 (SRU) (doc. # 30). Negroni's Criminal History Category was based in part on a 2005 conviction of sale of narcotics. Id. at ¶ 41. The PSR states that he was sentenced for the 2005 conviction on August 25, 2005, was released to community release on October 24, 2007, was put on parole supervision on January 16, 2008, was discharged to special parole supervision on August 22, 2008, and “was discharged by Court order on March 6, 2009.” Id.

         On June 25, 2014, I held hearing in which I adopted the factual findings of the PSR and sentenced Negroni to 72 months' imprisonment, three years' supervised release, and a $100 special assessment. The sentence I imposed was within the parameters of the appeal waiver provision of the plea agreement.

         On July 3, 2014, Negroni filed a timely notice of appeal. The notice was followed by an Anders brief filed by Negroni's appellate counsel and a pro se brief filed by Negroni. The Anders brief stated that Negroni's appellate counsel had no non-frivolous grounds to support an appeal based on the existence of the appeal waiver. The pro se brief challenged his sentence on the ground that I committed plain error by relying on his 2005 conviction, which he alleged had been vacated by the state court. Negroni also brought an ineffective assistance claim, arguing that trial counsel was ineffective for “failing to properly argue the ‘exclusion' of that 2005 vacated sentence ...


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