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United States v. Raghoonanan

United States District Court, D. Vermont

January 10, 2018

United States of America
v.
Videsh Raghoonanan

          REPORT AND RECOMMENDATION (DOCS. 210, 229)

          John M. Conroy United States Magistrate Judge.

         Defendant Videsh Raghoonanan, proceeding pro se, moves under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. (Docs. 210, 229.) On June 26, 2013, pursuant to a Plea Agreement, Raghoonanan pleaded guilty to two counts in the Superseding Indictment: Count One, which charged Raghoonanan with conspiring to distribute cocaine base and 100 grams or more of heroin, in violation of 21 U.S.C. §§ 841(a), (b)(1)(B)-(C), 846, (see Doc. 217 at 24-25); and Count Six, which charged Raghoonanan with possessing a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i). (See Doc. 217 at 26-27.) On October 17, 2013, Raghoonanan was sentenced to an 85-month term of imprisonment under Count One and a 60-month term under Count Six, to run consecutively with the sentence on Count One. (Doc. 167 at 40.) Raghoonanan's total term of imprisonment-145 months-fell in the middle of the 10- to 13-year sentencing range that Raghoonanan had agreed to in his Plea Agreement. (Doc. 80 at 5, ¶ 12.)

         Raghoonanan now contends that his sentence should be vacated based on three grounds: (1) his defense counsel provided ineffective assistance of counsel by failing to raise several relevant legal arguments; (2), the Supreme Court's decision in Dean v. United States, 137 S.Ct. 1170 (2017), requires this court to vacate his sentence for possessing a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A)(i); and (3), his conviction for violating § 924(c)(1)(A)(i) must be vacated in light of Johnson v. United States, 135 S.Ct. 2551 (2015). (Docs. 210, 229.) The government opposes Raghoonanan's Motion, arguing that his claims are barred by the one-year statute of limitations set forth in 28 U.S.C. § 2255 and that, even if Raghoonanan's claims are not time-barred, they lack merit. (Docs. 222, 230.)

         Concluding that his claims are barred by the applicable statute of limitations and that they are otherwise meritless, I recommend that Raghoonanan's § 2255 Motion be DENIED.

         Factual and Procedural Background

         I. Charge and Guilty Plea

         On March 21, 2013, the federal grand jury returned a Superseding Indictment charging Raghoonanan with six counts, including Count One, which charged Raghoonanan with conspiring to distribute cocaine base and 100 grams or more of heroin, in violation of 21 U.S.C. §§ 841(a), (b)(1)(B)-(C), 846, and Count Six, which charged him with possessing a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i). (Doc. 38 at 1, 6.) On June 10, 2013, a Plea Agreement was filed wherein Raghoonanan, with benefit of counsel, agreed to plead guilty to Count One and Count Six. (Doc. 80 at 1, ¶ 1.) The government and Raghoonanan agreed, pursuant to Fed. R. Crim. P. 11(c)(1)(C), that “the appropriate term of imprisonment the Court should impose [was] not less than 10 years nor more than 13 years.” (Id. at 5, ¶ 12.) In the Agreement, the government agreed to recommend that Raghoonanan had manifested an acceptance of responsibility for his crimes pursuant to U.S.S.G. § 3E1.1(a) and (b), to not prosecute Raghoonanan for any other crimes known to the United States, and to move for dismissal of all remaining counts at time of sentencing. (Id. at 4, ¶ 10.) On June 26, 2013, Raghoonanan pleaded guilty to both counts pursuant to Fed. R. Crim. P. 11. (Doc. 217 at 24-27.) During that proceeding, upon inquiry by the court concerning his understanding of the elements of Count Six, Raghoonanan initially stated that the firearm was for personal use and not “to protect the drugs or carry around with me or nothing like that” and that, as a result, he was unsure whether his firearm possession was connected to a drug trafficking crime. (Id. at 20.) But Raghoonanan's defense counsel acknowledged that “[Raghoonanan] exchanged drugs for the firearm” and that, based on counsel's understanding, “under the case law that's clearly a violation of [18 U.S.C. § 924(c)(1)(A)(i)].” (Id.) Further, the government set forth the following facts as the factual basis for Count Six: “Mr. Raghoonanan . . . distributed heroin to [another dealer] in exchange for that Smith and Wesson handgun and thereby possessed it in furtherance of the drug trafficking crime of distribution of heroin.” (Id. at 23-24.) Raghoonanan agreed that the government accurately stated the facts supporting the offense charged under Count Six and pleaded guilty to “knowingly possess[ing] a firearm, that is, a Smith and Wesson 40 caliber pistol in furtherance of a drug trafficking crime.” (Id. at 24, 25.)

         II. Sentencing

         A presentence report (PSR) was submitted to the court in anticipation of sentencing. The PSR noted that Raghoonanan's plea of guilty to violating 21 U.S.C. § 841(b)(1)(B) required imposition of a five-year mandatory-minimum term of imprisonment and that his plea of guilty to violating 18 U.S.C. § 924(c)(1)(A)(i) required imposition of another five-year mandatory-minimum term that, by statute, had to be imposed to run consecutively to Count One. (PSR at 20, ¶ 108.) The PSR preliminarily concluded that Raghoonanan faced an advisory Sentencing Guideline imprisonment range of 135 to 168 months, based on an adjusted offense level of 33 and a Criminal History Category of I. (Id. ¶ 109.) But, given that 18 U.S.C. § 924(c) required the imposition of a 60-month consecutive mandatory-minimum term, the PSR further concluded that the Guideline imprisonment range was 195 to 228 months. Id. Finally, the report noted that the parties had agreed, pursuant to Fed. R. Crim. P. 11(c)(1)(C), that the term of imprisonment should not be less than 10 years or more than 13 years, or 120 to 156 months. (Id. ¶ 110.)

         On October 17, 2013, Raghoonanan appeared for sentencing. (Doc. 167.) In response to the Court's question, he agreed that there were no factual errors in the PSR.[1] (Id. at 2.) Defense counsel advocated for a 10-year sentence within the agreed-upon 10- to 13-year range. (Id. at 6, 12.) Counsel pointed out that Raghoonanan had no prior convictions nor prior involvement with the federal criminal justice system. Counsel also noted that it was highly probable that Raghoonanan, a citizen of Trinidad and Tobago, would be deported after serving his sentence and that, as a result, he would be removed to a country where he had no community connection, without being eligible for reentry to the United States. (Id. at 6-8.) The government argued for a 13-year term of imprisonment, pointing out that Raghoonanan directed a wide-ranging drug-distribution conspiracy and that he carried a firearm while directing this conspiracy. (Id. at 17-22.)

         After hearing arguments of counsel and affording Raghoonanan an opportunity to speak, the court sentenced Raghoonanan to a total term of 145 months: an 85-month term under Count One and a 60-month term under Count Six, each term to run consecutively with the other term. (Id. at 40.) In arriving at this sentence, the court appropriately weighed the sentencing factors set forth in 18 U.S.C. § 3553(a)(1). The court analyzed the nature and circumstances of the conspiracy, noting that Raghoonanan used firearms to threaten other people, that the conspiracy continued for a long period of time, and that a substantial amount of drugs were distributed resulting in significant “human wreckage.” (Id. at 34-36.) The court also reviewed Raghoonanan's personal history and characteristics, observing that Raghoonanan had effectively wasted his intelligence and organizational skills on the conspiracy. (Id. at 38.) Balancing these factors, the court imposed the 145-month term of imprisonment, a sentence that fell in the middle of the 10- to 13-year sentencing range set forth in the Plea Agreement. (Doc. 80 at 5, ¶ 12.) Raghoonanan did not directly appeal any aspect of his conviction or sentence.

         III. Raghoonanan's § 2255 Motion and Amended Motion

         On May 1, 2017, Raghoonanan filed the present § 2555 Motion to Vacate, Set Aside, or Correct Sentence. (Doc. 210.) In his Motion, Raghoonanan contends that his defense counsel was ineffective for failing to argue that Raghoonanan's “sentence under 18 U.S.C. § 924(c), which relates to the use of a firearm during a drug trafficking crime . . . falls under Watson v. United States, 552 [U.S.] 74 [(2007)].” (Doc. 210-1 at 3.) He also claims that the U.S. Supreme Court's decision in Dean entitled him to a resentencing because “his consecutive sentence under 18 U.S.C. § 924(c) . . . is now in the district court's discretion.” Id. Finally, he claims that his Motion is timely under 28 U.S.C. § 2255(f)(3) and that, alternatively, he is “actually innocent” of violating 18 U.S.C. § 924(c)(1)(A). (Id. at 3-4.) The government opposes the Motion, asserting that his claims are barred by the one-year statute set forth in the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, § 105, 110 Stat. 1214 (codified as 28 U.S.C. § 2255(f)) and that, even if not time-barred, his claims would not succeed on the merits. (Doc. 222.)

         Subsequently, Raghoonanan filed a Reply-in which he again argues that his counsel was ineffective for failing to raise Watson (Doc. 226)-and he filed a Motion to Amend his § 2255 Motion, which was granted. (Docs. 227, 228, 229.) Therein, Raghoonanan claims that his counsel was ineffective for two new reasons: (1) that, based on United States v. Combs, 369 F.3d 925, 929 (6th Cir. 2004), his counsel failed to challenge the sufficiency of the 18 U.S.C. § 924(c) charge in the Superseding Indictment, (Doc. 229 at 8); and (2) that defense counsel should have argued Raghoonanan did not knowingly conspire to distribute controlled substances under McFadden v. United States, 135 S.Ct. 2298 (2015). (Doc. 229 at 13.) He further alleges in his Amended Motion that his firearm possession charge under 18 U.S.C. § 924(c)(1)(A)(i) should be vacated in light of Johnson v. United States, 135 S.Ct. 2551 (2015). (Doc. 229 at 4.) Again, the government opposes Raghoonanan's Amended Motion, reiterating its argument that Raghoonanan's claims are barred by the AEDPA's statute of limitations and that they are also meritless. (Doc. 230.) In a Reply and Memorandum to the government's second response in opposition, Raghoonanan repeats the arguments raised in his Amended Motion. (Doc. 231 at 2, 5, 9.)

         As discussed below, the various claims that Raghoonanan raises in his Motion and Amended Motion are barred by the statute of limitations because they were not brought within one year of the four triggering dates set forth in 28 U.S.C. § 2255(f)(1)-(4). Further, even if the claims were timely, they are meritless.

         Analysis

         Raghoonanan asserts that his sentence should be set aside based on three general contentions: (1) his counsel provided ineffective representation in multiple ways; (2) the Supreme Court's decision in Dean, 137 S.Ct. 1170, requires this court to vacate his sentence for possessing a firearm in furtherance of drug trafficking crime under 18 U.S.C. § 924(c)(1)(A)(i); and (3), his conviction for violating § 924(c)(1)(A)(i) should be vacated in light of Johnson, 135 S.Ct. 2551.[2] (Docs. 210, 229.) Below, each argument is addressed in turn, keeping in mind that, as a pro se litigant, Raghoonanan's submissions must be construed liberally and his arguments must be accorded “special solicitude.” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 475 (2d Cir. 2006) (internal quotation omitted).

         I. Ineffective Assistance of Counsel

         In his first broad claim for relief under § 2255, Raghoonanan argues that his counsel provided ineffective representation by failing to challenge the Superseding Indictment in light of three cases: Watson v. United States, 552 U.S. 74; United States v. Combs, 369 F.3d 925; and, McFadden v. United States, 135 S.Ct. 2298.[3] (Doc. 211 at 3; Doc. 229 at 8, 11.)

         A. Statute of Limitations

         As stated above, the statute of limitation set forth in in 28 U.S.C.§ 2255(f) bars Raghoonanan's ineffective-assistance claims. The one-year statute of limitations begins to run from the latest of:

(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action;
(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.

28 U.S.C. § 2255(f)(1)-(4). Because he did not appeal from his sentence, Raghoonanan's conviction became final on October 31, 2013, the date when his time for filing an appeal expired. Raghoonanan filed his § 2255 Motion on May 1, 2017, (see Doc. 210), three and a half years after his conviction became final. (Doc. 146.) Thus, Raghoonanan's Motion is barred by 2255(f)(1). Nevertheless, Raghoonanan asserts that his § 2255 Motion is timely under § 2255(f)(3), which requires a § 2255 motion to be filed within one year from “the date on which the right[s] asserted [by the petitioner were] initially recognized by the Supreme Court, ” if those newly recognized rights have been “made retroactively applicable to cases on collateral review.” 28 U.S.C. § 2255(f)(3); (see also Doc. 210-1 at 3-4).

         Under § 2255(f)(3), the limitations period commences on the date the Supreme Court “initially recognized” the right asserted by the prisoner. Dodd v. United States, 545 U.S. 353, 357 (2005) (“An applicant has one year from the date on which the right he asserts was initially recognized by this Court.”). To assert his ineffective assistance of counsel claims, Raghoonanan relies on two Supreme Court decisions: Watson, 552 U.S. 74');">552 U.S. 74 and McFadden, 135 S.Ct. 2298. As explained in greater detail below, neither Watson nor McFadden has any bearing on the offenses for which Raghoonanan was convicted. Under § 2255(f)(3), moreover, Raghoonanan did not file the instant Motion within one year of either case.

         In Watson, the Supreme Court held that trading drugs for a gun cannot constitute a “use” of a firearm for purposes of 18 U.S.C. § 924(c). 552 U.S. at 83. The Court decided Watson on December 10, 2007, approximately 10 years before the pretrial proceedings that led to Raghoonanan's guilty plea and conviction. (Doc. 146.) Because Watson was decided before Raghoonanan's conviction became final, 28 U.S.C. § 2255(f)(3) affords him no relief as to that claim.

         In McFadden, the Supreme Court held that when a defendant is charged with dealing a controlled substance analogue, the government must show that “the defendant knew that the substance was controlled under the [Controlled Substances Act] or the Analogue Act, even if he did not know its identity.” 135 S.Ct. at 2302. The Court decided McFadden on June 18, 2015, almost two years before Raghoonanan filed the present § 2255 Motion. Compare McFadden, 135 S.Ct. 2298, with (Doc. 210). Thus, the date on which Raghoonanan's conviction became final is the controlling statute of limitations date under § 2255(f)(1). As with the Watson claims, because Raghoonanan did not file his § 2255 Motion within one year of the date in which his conviction became final, that claim is untimely as well. Dodd, 545 U.S. at 357 (holding § 2255 motion filed almost two years from date of decision was untimely).

         Raghoonanan also asserts that his counsel was ineffective for failing to challenge the Superseding Indictment based on a Sixth Circuit decision: United States v. Combs, 369 F.3d 925 (6th Cir. 2004). In Combs, the court held that 18 U.S.C. § 924(c) provides for two distinct offenses, one in which the offender “uses or carries” the firearm “during and in relation to” a drug trafficking crime (the “use” offense), and the other in which the offender “possesses” the firearm “in furtherance of” the drug trafficking crime (the “possession” offense). Again, Raghoonanan cannot overcome the statute of limitations. Combs was decided by the Sixth Circuit and did not create a right recognized by the Supreme Court and made retroactive by the Court. See 28 U.S.C. § 2255(f)(3). Further, the Sixth Circuit decided Combs more than a year before Raghoonanan filed the instant Motions, giving Raghoonanan one year to seek collateral review under § 2255(f)(3), which he failed to do. As a result, Raghoonanan's ineffective-assistance claim based on Combs is barred by the statute of limitations.

         Alternatively, Raghoonanan seeks an equitable exception to the statute of limitations by asserting that he is “actually innocent” of possessing a gun in furtherance of a drug trafficking crime. (Doc. 210-1 at 4); see also 18 U.S.C. § 924(a)(c)(1)(A)(i). But Raghoonanan's actual-innocence claim depends on Watson, 552 U.S. 74, which is not applicable here. Thus, he ...


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