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United States v. Lee

United States District Court, D. Hawaii

January 30, 2017

ROBIN LEE, Defendant.


          Leslie E. Kobayashi United States District Judge

         Before the Court is pro se Defendant/Petitioner Robin M. Lee’s (“Lee”) Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (“§ 2255 Motion”), filed on June 20, 2016. [Dkt. Nos. 1030 (§ 2255 Motion), 1031 (memorandum in support).[1]] Plaintiff/Respondent the United States of America (“the Government”) filed its response to the § 2255 Motion (“Response”) on August 31, 2016. [Dkt. nos. 1058 (Response), 1059 (sealed exhibits).] After careful consideration of the § 2255 Motion, the supporting and opposing memoranda, and the relevant legal authority, Lee’s § 2255 Motion is HEREBY DENIED, and a certificate of appealability is also DENIED, for the reasons set forth below.


         On September 12, 2013, Lee and seventeen others were indicted in an eleven-count Indictment. [Dkt. no. 1.] The Indictment alleged that the defendants, and others, “were members and associates of a criminal organization in Hawaii known as the ‘USO Family,’ whose members and associates engaged in acts involving narcotics trafficking, violence, threats of violence, bribery, and fraud.”[2] [Indictment at 2.] Lee was indicted for racketeering conspiracy, in violation of 18 U.S.C. § 1962(d) (“Count One”), [id. at 7-9,] and seven counts of making false claims to the United States Government, in violation of 18 U.S.C. § 287 (“Counts Five-Eleven”) [id. at 13-14].

         Lee initially entered a plea of not guilty, [Minutes, filed 11/20/13 (dkt. no. 183),] but, on July 30, 2014, he withdrew his plea and entered a plea of guilty to Count One, pursuant to a plea agreement. [Dkt. nos. 416 (Minutes), 423 (Memorandum of Plea Agreement (“Plea Agreement”)).] In the Plea Agreement, Lee acknowledged that the conduct which formed the basis of Counts Five-Eleven would be considered by this Court at sentencing. [Plea Agreement at ¶ 4.] As of May 5, 2014, Gurmail “Gary” Singh, Esq., represented Lee. [C]A 20 form, filed 5/9/14 (dkt. no. 304).]

         This Court held Lee’s sentencing hearing on December 4, 2014. [Minutes, filed 12/4/14 (dkt. no. 766).] It accepted the plea agreement and adopted the factual findings in the presentence report. [Presentence Investigation Report (“PSR”), filed 12/12/14 (dkt. no. 774).] The PSR found that Lee’s base offense level for conspiracy to possess with intent to distribute methamphetamine and marijuana was fourteen, with a two-level increase because the conspiracy involved the distribution of a controlled substance in a correctional facility, and another two-level increase for bribing a law enforcement officer, resulting in an adjusted offense level of nineteen because the offense level was less than the minimum alternative level. [Id. at ¶¶ 71-76.] For the mail fraud and wire fraud activities, the base offense level was seven, with a twelve-level increase for the actual or intended tax loss, and a four-level increase for a leadership role in the offense, for an adjusted offense level of twenty-three. [Id. at ¶¶ 77-82.] The PSR took the greater of the two offense levels, with a two-level adjustment, for a combined adjusted offense level of twenty-five. After a total decrease of three levels for acceptance of responsibility, Lee’s total offense level was twenty-two. [Id. at ¶¶ 84-90.] His criminal history category was VI. [Id. at ¶ 134.] His imprisonment range under the United States Sentencing Guidelines (“U.S.S.G.” or “the Guidelines”) was therefore 84 to 105 months, and his range for supervised release was 1 to 3 years. [Id. at ¶¶ 202, 205.] The PSR noted that restitution in the amount of $353,810.00 to the Internal Revenue Service (“IRS”) was to be ordered pursuant to the plea agreement. [Id. at ¶ 212.]

         This Court sentenced Lee to 105 months of imprisonment and three years of supervised release, and it ordered Lee to pay $353,810.00 in restitution and a $100 special assessment. This Court granted the Government’s oral motion to dismiss Counts Five through Eleven. [Minutes, filed 12/4/14 (dkt. no. 766).] The Judgment in a Criminal Case was filed on December 8, 2014. [Dkt. no. 769.]

         Lee filed his Notice of Appeal on December 16, 2014. [Dkt. no. 777.] Lee’s counsel filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967) (“Anders Brief”), along with a motion to withdraw as counsel. [United States v. Lee, No. 14-10553 (9th Cir.) (“Lee Appeal”), Appellant’s Opening Brief & Motion to Be Relieved of Counsel Pursuant to Filing an Anders Brief on Behalf of Appellant Robin Lee, filed 4/9/15 (dkt. nos. 8-1, 8-2).] Lee filed a pro se supplemental opening brief on June 1, 2015. [Id., dkt. no. 15.] The Ninth Circuit Court of Appeals disposed of the appeal and granted the motion to withdraw in a memorandum disposition, filed on August 5, 2015 (“Memorandum Opinion”). [Dkt. no. 920.] The Ninth Circuit affirmed the Judgment as to the amount of restitution ordered and declined to review Lee’s ineffective assistance claims. It dismissed the remainder of Lee’s appeal in light of the valid waiver of his appeal rights. The Ninth Circuit issued its Mandate on August 28, 2015. [Dkt. no. 922.]

         In the § 2255 Motion, Lee argues that: 1) his guilty plea “was unlawfully induced, not made voluntarily and without understanding the consequences of the plea” (“Ground One”); [§ 2255 Motion at 5;] and 2) he was denied the effective assistance of counsel, in violation of the Sixth Amendment to the United States Constitution (“Ground Two”) [id. at 6]. In addition, although not identified as numbered grounds in the § 2255 Motion, Lee raises the following arguments in his Memorandum in Support: prosecutorial misconduct deprived him of a fair trial and of his right to appeal, in violation of the Fifth Amendment (“Ground Three”); a challenge to the amount of the restitution order (“Ground Four”); a challenge to the imposition of the four-point enhancement for a leadership role (“Ground Five”); and an argument that his sentence should be overturned because it does not reflect his significant history of mental illness and substance abuse and because it is disproportionate to the sentences given to his co-defendants (“Ground Six”). Lee cites various events which occurred during the course of this case that he alleges support each ground. The Government responds that all of Lee’s arguments, except for those asserting ineffective assistance of counsel, are waived in light of the Plea Agreement and the Ninth Circuit’s Memorandum Opinion. The Government also argues that Lee has failed to establish that his counsel rendered ineffective assistance.


         Section 2255(a) states:

A prisoner in custody under sentence of a court established by Act of Congress claiming 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, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

         This district court has described the standards applicable to § 2255 motions as follows:

A court may dismiss a § 2255 motion if “it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief.” R. 4(b), Rules Governing Section 2255 Proceedings. A court need not hold an evidentiary hearing if the allegations are “palpably incredible [or] patently frivolous,” Blackledge v. Allison, 431 U.S. 63, 76 (1977), or if the issues can be conclusively decided on the basis of the evidence in the record. See United States v. Mejia-Mesa, 153 F.3d 925, 929 (9th Cir. 1998) (noting that a “district court has discretion to deny an evidentiary hearing on a § 2255 claim where the files and records conclusively show that the movant is not entitled to relief”). . . .

Leon v. United States, Civ. No. 15-00099 JMS-BMK, 2015 WL 3965895, at *4 (D. Hawai`i June 29, 2015) (some alterations in Leon).

         The issues raised in Lee’s § 2255 Motion are legal issues that “can be conclusively decided on the basis of the evidence in the record,” including the record of the underlying proceedings. See Mejia-Mesa, 153 F.3d at 929. This Court has previously concluded that an evidentiary hearing is not necessary in this case. See Order Denying Def.’s Request for an Evidentiary Hearing & Denying Def.’s Request for the Appointment of Counsel, filed 9/7/16 (dkt. no. 1062).


         I. Waiver and the Law of the Case

         At the outset, the Government argues that this Court cannot consider Lee’s arguments, except for those associated with Ground Two, because Lee waived his right to bring such challenges on appeal and on collateral review. In the Plea Agreement, Lee agreed:

14. Defendant is aware that he has the right to appeal his conviction and the sentence imposed. Defendant knowingly waives the right to appeal, except as indicated in subparagraph “b” below, his conviction and any sentence within the maximum provided in the statute(s) of conviction or the manner in which that sentence was determined, on any ground whatever, in exchange for the concessions made by the prosecution in this plea agreement.
a. Defendant also waives his right to challenge his conviction or sentence or the manner in which it was determined in any collateral attack, including, but not limited to, a motion brought under Title 28, United States Code, Section 2255, except that defendant may make such a challenge (1) as indicated in subparagraph “b” below, or (2) based on a claim of ineffective assistance of counsel.
b. If the Court imposes a sentence greater than specified in the guideline range determined by the Court to be applicable to Defendant, Defendant retains the right to appeal the portion of his sentence greater than specified in that guideline range and the manner in which that portion was determined under Section 3742 and to challenge that portion of his sentence in a collateral attack.

[Plea Agreement at 9.]

         This Court acknowledges that Lee has taken the position that the Plea Agreement is invalid because, among other things, he asserts that he did not enter into the Plea Agreement knowingly and voluntarily. However, the Ninth Circuit has already held that Lee made a valid waiver of his right to appeal his conviction and sentence, except for challenges to the amount of the restitution order. [Memorandum Opinion at 2.] The Ninth Circuit’s ruling “is the law of the case,” and this Court must follow it in considering Lee’s § 2255 Motion. See United States v. Jingles, 702 F.3d 494, 498 (9th Cir. 2012) (citing In re Rainbow Magazine, Inc., 77 F.3d 278, 281 (9th Cir. 1996) (“[T]he decision of an appellate court on a legal issue must be followed in all subsequent proceedings in the same case”); Odom v. United States, 455 F.2d 159, 160 (9th Cir. 1972) (“The law in this circuit is clear that when a matter has been decided adversely on appeal from a conviction, it cannot be litigated again on a 2255 motion”) (some citations omitted)).

         Because the Ninth Circuit has already ruled that the waiver of Lee’s appellate and collateral review rights in the Plea Agreement is valid, this Court DENIES Lee’s § 2255 Motion as to Ground One.

         Lee’s waiver of his appellate and collateral review rights was subject to only two exceptions – ineffective assistance of counsel and the imposition of a sentence that exceeded either the statutory maximum or the Guideline range applicable to him. Because there was no express exception for prosecutorial misconduct, Lee also waived any argument – on appeal or on collateral review – alleging prosecutorial misconduct. See, e.g., United States v. Dykstra, No. 93-55747, 1994 WL 5726, at *2 (9th Cir. Jan. 7, 1994) (holding that the defendant was “precluded from raising these issues [of alleged prosecutorial misconduct] in her § 2255 motion because she made a knowing and voluntary waiver of her right to appeal in her plea agreement” (citing United States v. Broce, 488 U.S. 563, 569 (1989); United States v. Abarca, 985 F.2d 1012, 1014 (9th Cir. 1993) (some citations omitted))); United States v. Coleman, Case No. 11-cr-00904-PJH-1, 2015 WL 1548986, at *3 (N.D. Cal. Apr. 7, 2015) (noting in order dismissing a § 2255 motion that, “[b]y entering the plea agreement, . . . movant waived any claim of prosecutorial misconduct or request to withdraw the guilty plea”). In addition, Lee also waived the arguments that he raises in Ground Five and Ground Six.

         This Court therefore DENIES Lee’s § 2255 Motion as to Ground Three, Ground Five, and Ground Six, based on the valid waiver in his Plea Agreement of his appellate and collateral review rights.

         Ground Four challenges the amount of the restitution order. The Ninth Circuit held that Lee’s Plea Agreement did not waive his right to challenge the amount of restitution. However, it also held that its “independent review of the record pursuant to Penson v. Ohio, 488 U.S. 75, 80 (1988), disclose[d] no arguable grounds for relief on direct appeal as to the amount of restitution ordered by the district court.” [Memorandum Opinion at 2.] In Penson, the United States Supreme Court stated:

Once the appellate court receives th[e Anders] brief, it must then itself conduct “a full examination of all the proceeding[s] to decide whether the case is wholly frivolous.” [Anders, 386 U.S. 738.] Only after this separate inquiry, and only after the appellate court finds no nonfrivolous issue for appeal, may the court proceed to consider the appeal on the merits without the assistance of counsel.

488 U.S. at 80 (some alterations in Penson). In Lee’s direct appeal, the Ninth Circuit conducted a full examination of the record and found that there was no nonfrivolous issue for appeal of the restitution order. Thus, the Ninth Circuit’s affirmance of the restitution order precludes the arguments that Lee now brings in Ground Four.

         In the alternative, even if the Ninth Circuit’s holding in the direct appeal only precludes arguments that Lee expressly raised in his direct appeal, Ground Four raises the same challenges to the restitution order as those presented in Lee’s direct appeal. In the § 2255 Motion, Lee argues that the restitution award: included alleged losses from returns that were not part of the conspiracy; exceeded the amount of the actual loss because there was no proof that his co-conspirators received and cashed all of the tax return checks; was disproportionate to the restitution awards in his co-conspirators’ sentences; and imposes a severe hardship on him during his incarceration, and will continue to impose a severe hardship after his release. He also argues that all of these errors show that this Court improperly determined the restitution amount, in violation of his constitutional right to due process.

         The law of the case doctrine would preclude this Court from revisiting Lee’s challenges to the restitution order if the are same arguments that the Ninth Circuit rejected in his direct appeal. The Anders brief that Lee’s counsel filed in his direct appeal argued that the Ninth Circuit should vacate the restitution award because: 1) the Government failed to meet its burden of proof as to the amount of restitution because it presented no facts or evidence to support the amount of the award; [Lee Appeal, Anders Brief at 31-33;] 2) the amount of restitution should not have included the alleged losses associated with Counts Five-Eleven, which were dismissed; [id. at 33;] 3) although acts that Lee co-defendants committed were considered in the determination of Lee’s sentence, he was the only one ordered to pay the total restitution amount; [id. at 33-34;] and 4) the restitution portion of Lee’s sentence was substantively unreasonable [id. at 35-37]. Lee made similar argument in the supplemental brief that he filed pro se.

         Thus, the Ninth Circuit has already considered and rejected the arguments that Lee raises in the § 2255 Motion regarding the sufficiency of the evidence and the reasonableness of the restitution award. It does not appear that Lee raised the due process argument during his direct appeal. However, the Ninth Circuit’s holding that there was no error in the determination of the restitution award necessarily means that Lee’s cumulative effect/due process argument also fails.

         Because the Ninth Circuit has already affirmed the restitution order, this Court DENIES Lee’s § 2255 Motion as to Ground Four. The only issue raised in the § 2255 Motion which is properly before this Court is Ground Two, which alleges that Lee received ...

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