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United States v. Cooper

United States District Court, Second Circuit

December 11, 2013

United States of America
v.
Desmel Cooper.

REPORT AND RECOMMENDATION (Doc. 603)

JOHN M. CONROY, Magistrate Judge.

Desmel Cooper, proceeding pro se, has moved pursuant to 28 U.S.C. § 2255 to vacate a sentence imposed upon him in 2012 in the United States District Court for the District of Vermont. Cooper entered a plea of guilty to engaging in a conspiracy to distribute a quantity of heroin, a Schedule I controlled substance, and 28 grams or more of cocaine base, a Schedule II controlled substance, in violation of 21 U.S.C. §§ 846, 841(b)(1)(B). Judge William K. Sessions III subsequently sentenced him to a 108-month term of imprisonment. Cooper was represented at sentencing by Attorney Ernest M. Allen III.

Cooper now asserts that he received ineffective assistance of counsel as guaranteed by the Sixth Amendment to the Constitution at time of sentencing. Concluding that Cooper has failed to establish that Attorney Allen's performance was objectively deficient or that Cooper sustained any prejudice, I recommend the Motion to Vacate (Doc. 603) be DENIED.

Background

I. Indictment and Plea of Guilty

On December 13, 2011, Desmel Cooper and 14 other individuals were charged in a Second Superseding Indictment with several violations of the Controlled Substances Act and the Gun Control Act. (Doc. 334.) On December 19, 2011, a written plea agreement was filed in which Cooper agreed to plead guilty to Count I of the Second Superseding Indictment. (Doc. 344) Count I charged Cooper with engaging in a conspiracy with others to distribute heroin and 28 grams or more of cocaine base in violation of 21 U.S.C. §§ 846 and 841(a)(1). ( Id. at 1.) In the agreement, Cooper acknowledged that he faced a maximum term of imprisonment of up to 40 years, and a mandatory minimum term of five years. ( Id. ) Cooper stipulated that the conspiracy count to which he was pleading guilty involved at least 112 grams of cocaine base and at least 80 grams of heroin. ( Id. at 2.)

In exchange for Cooper's guilty plea, the government agreed, inter alia, to move to dismiss the remaining counts of the Second Superseding Indictment at sentencing, and to recommend that Cooper receive the credit for acceptance of responsibility under USSG §3E1.1. The government also agreed to recommend a sentence of not more than 151 months, pursuant to Fed. R. Crim. P. 11(c)(1)(B). ( Id. at 4.) Cooper remained free to argue for a lesser sentence, although he acknowledged that he faced the minimum 60-month term.

On December 21, 2011, Cooper appeared before Judge Sessions to enter his plea of guilty pursuant Fed. R. Crim. P. 11. (Doc. 608.) Judge Sessions engaged in the colloquy required by Rule 11, and reviewed the specific terms of the plea agreement with Cooper, including his stipulation as to drug quantity and the government's non-binding agreement to recommend a sentence of not more than 151 months. Judge Sessions then accepted Cooper's guilty plea, concluding that it was being entered voluntarily and with a full understanding of the charges and their consequences. Judge Sessions thereupon ordered the preparation of a presentence report ("PSR") in anticipation of sentencing.

II. The PSR and Objections

The PSR concluded that Cooper faced an imprisonment range of 262-327 months pursuant to the Sentencing Guidelines. (PSR ¶ 98.) This conclusion was arrived at in the following manner. The PSR assigned Cooper a base offense level of 28 based upon the drug-quantity stipulation. (PSR ¶ 51.) Specific offense characteristics under the Sentencing Guidelines included (1) a two-point enhancement under USSG §2D1.1(b)(1) for possession of a firearm; (2) a two-point enhancement under USSG §2D1.1(b)(2) for use of violence and threats of violence; (3) a two-point enhancement under USSG §2D1.1(b)(14) for use of fear and impulse to involve a minor participant in the drug conspiracy; and (4) a three-point enhancement under USSG §3B1.1(c) for Cooper's role as manager or supervisor of criminal activity involving five or more persons. ( Id. ¶¶ 52, 54). Cooper was accorded the three-level reduction for acceptance of responsibility under USSG §3E1.1. The adjusted offense level was thus determined to be 34. (PSR ¶ 59.)

Cooper had three prior felony convictions for sale of controlled substances. It was therefore concluded that he was a career offender under USSG §4B1.1(b), placing him in Criminal History Category VI. Using the adjusted offense level of 34 under Category VI, the PSR concluded that Cooper faced a sentence of 262-327 months under the Sentencing Guidelines.

Prior to sentencing, Attorney Allen filed a memorandum asserting various objections to the PSR. Specifically, Attorney Allen objected to the criminal-history calculation and to each of the specific offense characteristics applied in the offense-level determination. (Doc. 452.) He also opposed an obstruction-of-justice enhancement sought by the government, ostensibly for Cooper's attempts to intimidate witnesses Christopher Handy and Vincent Gore in the case. Attorney Allen further argued that a downward departure from the applicable Sentencing Guideline range was warranted due to extraordinary family circumstances, noting that Cooper was a source of financial support and adult guidance for his three children. ( Id. at 3.) In addition, Allen argued that Cooper's mother was seriously ill, and that her life expectancy would suffer if her son were to sustain a lengthy term of incarceration.

Attorney Allen further argued that a departure was warranted because Cooper's criminal-history calculation substantially overstated the seriousness of his prior interactions with the criminal-justice system, and "in light of the distortive effect of the structure of this conspiracy on the guidelines calculation." ( Id. at 4.) With respect to the latter point, Allen contended that the conspiracy was, in reality, a "collective" where each member acted with a significant degree of autonomy and the overall drug-quantity calculation attributable to the conspirators distorted this autonomy.

In addition to seeking a downward departure from the applicable Sentencing Guideline range, Allen argued for the imposition of a non-Guideline sentence pursuant to the statutory factors set forth in 18 U.S.C. § 3553(a). ( Id. at 4-5). He advanced several reasons for a variance from the Guideline range, including Cooper's record of employment, his difficult upbringing, his efforts to meet parental obligations, and a lack of guidance during his youth. ( Id. at 5.) Allen further argued that the five-year mandatory minimum term of imprisonment required as a consequence of Cooper's plea was far more serious than any sentence he had received for his prior criminal convictions. Allen also supplied the Court with a significant number of letters attesting to Cooper's character.

The government concurred with the conclusions of the PSR, except to the extent it also sought the obstruction-of-justice enhancement. (Doc. 458.) The government argued for a non-Guideline sentence of 151 months, consistent with its obligations under the plea agreement. ( Id. )

III. Sentencing Hearing

A sentencing hearing was held before Judge Sessions on May 1, 2012. (Doc. 609-1.) After ascertaining that Cooper had received and reviewed the PSR with his lawyer, Judge Sessions inquired of the defendant and Attorney Allen whether there were any factual inaccuracies in the PSR. Both Cooper and Attorney Allen denied any inaccuracies, with Attorney Allen stating that "I think everyone probably said to the authorities the things they're quoted as having said." ( Id. at 4.)

Judge Sessions thereupon summarized Attorney Allen's challenges to the Sentencing Guideline calculation, and the government proceeded to present evidence to support the specific offense characteristics. Det. Daniel Merchand, the lead investigator, described the overall investigation, including the investigation into an assault. Jason Brandon, the assault victim, had identified Desmel Cooper as one of multiple participants in the assault. Police also discovered pictures of Brandon and his injuries on Cooper's cellphone. ( Id. at 12.) Attorney Allen vigorously cross-examined Detective Merchand, eliciting from him that Brandon had told investigators two versions of the assault, with inconsistencies as to the identities of the participants. ( Id. at 14-15.)

The government then called four members of the charged conspiracy, each of whom had pled guilty to felony offenses and were testifying pursuant to cooperation agreements. Justin Goulet, a user of heroin, described his exchange of a hand gun as payment for a preexisting heroin debt, identifying the defendant as the person who received the firearm. ( Id. at 24.) Goulet also testified about false statements he made to a gun dealer in order to acquire a second hand gun on behalf of codefendant Tysean Cooper. ( Id. at 26.) Goulet further admitted that he had lied to investigators, initially telling the police that two firearms had been stolen from him by Desmel Cooper, ...


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