United States District Court, D. Vermont
OPINION AND ORDER
ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION (DOES. 97, 103, 111, 112)
CHRISTINA REISS, Chief District Judge.
This matter came before the court for a review of the Magistrate Judge's September 23, 2014 Report and Recommendation ("R & R"). Defendant George Allen has filed a motion pursuant to 28 U.S.C. § 2255 that seeks to vacate, set aside, or correct a judgment and sentence imposed by this court on the grounds that he received ineffective assistance of counsel during plea negotiations. (Doc. 97.) The government has opposed the motion, (Doc. 107), and has filed a motion to dismiss without prejudice in light of Defendant's direct appeal from the entry of judgment in his case. (Doc. 103.) In his R & R, the Magistrate Judge recommended that the government's motion to dismiss without prejudice be granted. (Doc. 111.) Defendant objects to the R & R, arguing that the interests of judicial economy and fairness weigh in favor of allowing Defendant to pursue his direct appeal and § 2255 petition in tandem, particularly given his shorter term of incarceration. (Doc. 112.)
The government is represented by Assistant United States Attorney William B. Darrow. Defendant is represented by Michael K. Bachrach, Esq.
I. Factual and Procedural Background.
A. Proceedings in the District Court.
On September 19, 2012, Defendant was charged in a one-count Indictment with knowingly and willfully conspiring to set fire upon the public domain and upon lands under the jurisdiction of the United States in violation of 18 U.S.C. §§ 371 and 1855. The Indictment alleged that while Defendant was serving as Captain of the Wallingford, Vermont Volunteer Fire Department, he conspired in April and May of 2008 with other volunteer firefighters to intentionally set approximately twenty-four fires so that the Wallingford Volunteer Fire Department could respond to extinguish those fires. At least two fires to which the Volunteer Fire Department responded were allegedly set at Defendant's direction in two different locations in the Green Mountain National Forest.
After his indictment, Defendant's trial counsel and the government engaged in plea negotiations that resulted in the government's offer of the January 2013 proposed plea agreement. The proposed plea agreement required Defendant to plead guilty to the one-count Indictment, and, in exchange, the government would recommend a reduction for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1 and that Defendant "be sentenced to a term of imprisonment at the low end of the Sentencing Guidelines range, " and the government would not "oppose a downward sentencing variance under 18 U.S.C. § 3553(a)." (Doc. 97-3 at 2, 5.) The proposed plea agreement further provided: "Both parties are free to move for a departure under the Guidelines and to argue for a sentence outside the advisory sentencing range, except as otherwise set forth in this agreement." Id. at 6. Defendant did not accept this proposed plea agreement, nor did he accept a subsequent offer from the government that included only the government's agreement to recommend a reduction for acceptance of responsibility. After a three-day trial on July 22-24, 2013, the jury found Defendant guilty of knowingly and willfully conspiring to set fire upon the public domain and upon lands under the jurisdiction of the United States in violation of 18 U.S.C. §§ 371 and 1855.
Defendant's pre-sentence report ("PSR") calculated a Guidelines range of 33 to 41 months based on Defendant's criminal history category I and a base offense level of 20 pursuant to U.S.S.G. § 2K1.4. Under section 2K1.4(a)(2), a base offense level of 20 for a conviction under 18 U.S.C. § 1855 is appropriate if the offense "created a substantial risk of death or serious bodily injury to any person other than a participant in the offense."
The court conducted Defendant's sentencing hearing on December 2, 2013, during which the government recommended a sentence within a range 15 to 24 months based on a downward variance pursuant to 18 U.S.C. § 3553(a). The court adopted the PSR's guidelines range of 33 to 41 months, including application of a base offense level of 20 pursuant to U.S.S.G. § 2K1.4(a)(2) based on a finding that the offense of conviction created a substantial risk of death or serious bodily injury to other firefighters and members of the public. Considering the factors articulated in 18 U.S.C. § 3553(a), however, the court granted a downward variance from the Guidelines range and imposed a sentence of thirteen months, followed by two years of supervised release and seventy five hours of community service. The court granted Defendant's request to self-surrender to serve his term of imprisonment on January 14, 2014.
On January 6, 2014, Defendant sought a stay of execution of his sentence pending his appeal (Doc. 79), which the court denied on January 10, 2014 on the grounds that Defendant failed to identify a substantial question of law or fact likely to result in reversal or a new trial. (Doc. 83.) Defendant self-surrendered on January 14, 2014.
B. Direct Appeal.
On December 5, 2013, Defendant timely filed a notice of appeal, which remains pending before the Second Circuit. On September 24, 2014, Defendant filed a motion to expedite the appeal, which was granted on September 26, 2014. Oral argument was heard on November 4, 2014.
In his direct appeal, Defendant requests that his conviction be vacated because he contends the evidence was insufficient to support the jury's verdict that he knowingly joined and engaged in a conspiracy to set fires on federal lands. He alternatively seeks a new trial, arguing that the court violated his right to a fair trial under the Fifth Amendment and Rule 43(a) of the Federal ...