Scribd Logo
Upload

Welcome to Scribd!

  • 17 views

    Clemente v. United States, 42 F.3d 1384, 1st Cir. (1994)

    Uploaded by

    Scribd Government Docs
    Gerald Clemente appealed the denial of his motion to vacate his sentence under 28 U.S.C. §2255. Clemente had pled guilty to racketeering charges for stealing civil service exams and selling them. He argued his plea was invalid because the prosecutor promised to recommend a concurrent sentence, which was impossible. The court affirmed the denial, finding the prosecutor recommended a concurrent sentence when the state sentence had many years left, and the court had lawful options to impose a concurrent sentence if it chose. Clemente received what he bargained for in the plea agreement.

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd

    Clemente v. United States, 42 F.3d 1384, 1st Cir. (1994)

    Uploaded by

    Scribd Government Docs
    17 views7 pages
    Gerald Clemente appealed the denial of his motion to vacate his sentence under 28 U.S.C. §2255. Clemente had pled guilty to racketeering charges for stealing civil service exams and selling them. He argued his plea was invalid because the prosecutor promised to recommend a concurrent sentence, which was impossible. The court affirmed the denial, finding the prosecutor recommended a concurrent sentence when the state sentence had many years left, and the court had lawful options to impose a concurrent sentence if it chose. Clemente received what he bargained for in the plea agreement.

    Original Description:

    Filed: 1994-12-09 Precedential Status: Non-Precedential Citations: 42 F.3d 1384 Docket: 94-1155

    Copyright

    © Public Domain

    Available Formats

    PDF or read online from Scribd

    Did you find this document useful?

    Is this content inappropriate?

    Gerald Clemente appealed the denial of his motion to vacate his sentence under 28 U.S.C. §2255. Clemente had pled guilty to racketeering charges for stealing civil service exams and selling them. He argued his plea was invalid because the prosecutor promised to recommend a concurrent sentence, which was impossible. The court affirmed the denial, finding the prosecutor recommended a concurrent sentence when the state sentence had many years left, and the court had lawful options to impose a concurrent sentence if it chose. Clemente received what he bargained for in the plea agreement.

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd
    Download as pdf
    17 views7 pages

    Clemente v. United States, 42 F.3d 1384, 1st Cir. (1994)

    Uploaded by

    Scribd Government Docs
    Gerald Clemente appealed the denial of his motion to vacate his sentence under 28 U.S.C. §2255. Clemente had pled guilty to racketeering charges for stealing civil service exams and selling them. He argued his plea was invalid because the prosecutor promised to recommend a concurrent sentence, which was impossible. The court affirmed the denial, finding the prosecutor recommended a concurrent sentence when the state sentence had many years left, and the court had lawful options to impose a concurrent sentence if it chose. Clemente received what he bargained for in the plea agreement.

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd
    Download as pdf
    of 7

    42 F.

    3d 1384

    NOTICE: First Circuit Local Rule 36.2(b)6 states unpublished


    opinions may be cited only in related cases.
    Gerald W. CLEMENTE, Petitioner, Appellant,
    v.
    UNITED STATES of America, Respondent, Appellee.
    No. 94-1155

    United States Court of Appeals,


    First Circuit.
    Dec. 12, 1994

    Appeal from the United States District Court for the District of
    Massachusetts [Hon. William G. Young, U.S. District Judge ]
    Gerald W. Clemente on brief pro se.
    Donald K. Stern, United States Attorney, and Alexandra Leake, Assistant
    U.S. Attorney, on brief for appellee.
    D.Mass.
    AFFIRMED.
    Before CYR, BOUDIN and STAHL, Circuit Judges.
    Per Curiam.

    George W. Clemente appeals the summary denial of his Sec. 2255 motion for
    relief from the sentence imposed upon his guilty plea. We affirm.

    Clemente is a former police captain in the Metropolitan District Commission


    Police. In April, 1986, he admitted to masterminding a long-standing scheme to
    steal advance copies of civil service examinations and sell them to policemen
    around the state so they could cheat and obtain fraudulent promotions. Pursuant
    to a plea bargain with federal and state prosecutors, Clemente agreed to
    cooperate with the authorities in exchange for various concessions relating to

    pending and future charges, and the conditions of his confinement. As part of
    the bargain, Clemente pled guilty to a single count of racketeering in violation
    of the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C.
    Sec. 1962. The crime carried a maximum possible imprisonment penalty of
    twenty years.
    3

    The government agreed to recommend, and did recommend, imposition of a


    twenty-year sentence on the RICO charge to run concurrently with a state
    sentence which Clemente was already serving for an unrelated theft from the
    Depositors Trust Company in Malden. The district court did not choose to
    follow the government's recommendation in this regard, however, instead
    sentencing Clemente to a fifteen-year term for his federal crime, to begin upon
    completion of the state sentence. This is Clemente's third assault in federal
    court on the consecutiveness of his sentence. In a direct appeal from imposition
    of the sentence, he argued that the government breached the plea agreement by
    failing to repeat the recommendation orally at the sentencing hearing. Finding
    no breach of the agreement, "either in its letter or spirit," this court affirmed the
    sentence. United States v. Doherty, 867 F.2d 47, 72 (1st Cir.), cert. denied, 492
    U.S. 918 (1989).

    Shortly thereafter, Clemente moved in the district court for a reduction of the
    sentence under Fed. R. Crim. P. 35(b), arguing that its effect was to unfairly
    require him to serve a minimum of thirty years in state custody before
    commencing his federal term. The government again joined in urging the court
    to revise Clemente's sentence to run concurrently with the state sentence. In an
    independent review, the court found Clemente's argument "to be utterly without
    substance." United States v. Clemente, 729 F. Supp. 165, 167 (D. Mass. 1990).
    In reaching this decision, the court clearly explained its reasoning under the
    sentencing laws applicable to Clemente's terms of imprisonment.

    Under his state sentence, Clemente is eligible for parole after serving one-third
    of his minimum term of confinement. He presently has a state parole eligibility
    date of December 7, 1995. Under the law in effect at the time this Court
    imposed its federal sentence on Clemente, he will become eligible for parole
    after serving one-third of his federal sentence, in this case five years. Even a
    twenty year concurrent federal sentence (it will be remembered that this Court
    imposed a 15 year sentence upon Mr. Clemente) would place his federal release
    date sometime before December 7, 1995, resulting in no time whatsoever being
    served for the extraordinarily serious racketeering offense of which he has been
    convicted.

    Id. Then, after carefully revisiting the equities and the law and, though not

    required to, consulting the new sentencing guidelines for purposes of


    comparison, the court again concluded that the sentence imposed was just. Id.
    at 170. Clemente did not appeal.

    Presumably spurred by the approach of his state parole eligibility date,


    Clemente now collaterally renews his quest for a concurrent sentence with an
    argument not previously urged. He now argues that the prosecution's promise
    to recommend imposition of a concurrent federal sentence was void ab initio,
    because the sentencing court did not have the "power" to impose such a
    sentence under the law applicable to his crime. For crimes committed prior to
    November 1, 1987, there is no formal mechanism for providing that a federal
    sentence will be served concurrently with an existing state sentence.1
    Generally, a sentencing court may achieve this result only by "recommending"
    to the Attorney General that the Bureau of Prisons designate the state prison as
    the place of confinement for service of the federal sentence. See 18 U.S.C. Sec.
    4082(b) (1982)2 ; James B. Eaglin, Sentencing Federal Offenders for Crimes
    Committed Before November 1, 1987 at 6-7 (Federal Judicial Center 1991)
    [Eaglin, Sentencing ]. In the absence of a recommendation from the district
    court, however, the sentence will be served in a federal prison and
    automatically run consecutively to the unexpired state sentence. See United
    States v. Pungitore, 910 F.2d 1084, 1119 (3d Cir. 1990), cert. denied, 500 U.S.
    915 (1991); Eaglin, Sentencing at 7.3

    In Clemente's view, this legal anomaly brings his case within a principle we
    have long recognized: that a plea agreement will be set aside if induced by a
    prosecutor's promise to recommend a sentence that is "impossible of
    fulfillment," as when it is "plainly contrary to law." Correale v. United States,
    479 F.2d 944, 946-47 (1st Cir. 1973) (following Brady v. United States, 397
    U.S. 742 (1970), and Santobello v. New York, 404 U.S. 257 (1971)); see also
    Bemis v. United States, 30 F.3d 220 (1st Cir. 1994); United States v.
    Kurkculer, 918 F.2d 295, 297-98 (1st Cir. 1990). We have never gone so far as
    to say, however, that "minor and harmless slips" will void a plea bargain.
    Correale, 479 F.2d at 947; see also United States v. Tursi, 655 F.2d 26 (1st Cir.
    1981).

    We do not see an error here, and certainly no "plain" error. Nothing in the plea
    agreement required the prosecutor to recommend that the district court achieve
    concurrency by a particular means, let alone an illegal, or nonexistent
    mechanism. Had the court been persuaded by the prosecutor's recommendation,
    there were available ample lawful means for its fulfillment. See Eaglin,
    Sentencing at 5-12 (flexible sentencing options for crimes committed prior to
    November 1, 1987, include shortened terms, early parole eligibility, suspended

    sentences, fines, and recommended concurrent terms); see also House Report at
    37-141, 1984 U.S.C.C.A.N. 3220-324 (comparison with new sentencing laws).
    Cooperation by other officials with a recommendation from the court for a
    concurrent term is the norm, see Eaglin, Sentencing at 6; Nass, 755 F.2d at
    1135, 1137; Williams, 651 F.2d at 647 n.2; Janiec, 505 F.2d at 988; Herb, 436
    F.2d at 568; and there was no reason to doubt it in this case.
    10

    The availability of lawful means for achieving the recommended result is what
    distinguishes this case from Correale. In Correale, the prosecutor recommended
    a mechanism for effecting a concurrent sentence that was both unlawful, (a
    minimum term greater than that allowed by law), and illusory, because the state
    sentence was about to expire. Although aware of the defect, the sentencing
    court did not afford Correale an opportunity to withdraw his plea prior to
    imposing a term of lawful length which did not achieve concurrency. We
    decided that relief was required because,

    11

    "It is the defendant's rights that are being violated when the plea agreement is
    broken or meaningless. It is his waiver which must be voluntary and knowing.
    He offers that waiver not in exchange for the actual sentence or impact on the
    judge, but for the prosecutor's statements in court. If they are not adequate, the
    waiver is ineffective."

    12

    Correale, 479 F.2d at 949.

    13

    Clemente, however, got what he bargained for. The prosecution vigorously


    recommended a concurrent sentence at a time when the existing state sentence
    had many years to run. The specific means for achieving concurrency was not
    broached by either party because, after thoughtful consideration, the court
    rejected the recommendation for lawful reasons that were well within its
    discretion. Our cases do not require relief from a mistake that was not made,
    nor a remedy for hypothetical non-cooperation with the court that has not
    occurred. Cf. Bemis, 30 F.3d at 221 (considerations of remedy must await
    proof of a promise and its breach).

    14

    A review of the plea hearing transcript leaves no doubt that Clemente's guilty
    plea in this regard was knowing, intelligent and voluntary. The court warned
    Clemente in strong terms of its inclination to impose a consecutive sentence and
    recessed the plea hearing to permit him to consult with his attorney prior to
    accepting his plea. Clemente then chose to plead guilty after a full Rule 11
    colloquy in which he acknowledged his understanding of the court's warning
    and all other relevant matters. See Fed. R. Crim. P. 11.

    15

    Clemente argues that it was error for the district court to resolve this Sec. 2255
    motion without an evidentiary hearing. However, a petitioner under Sec. 2255
    bears the usual burden of showing that his motion cannot be effectively "heard"
    on the papers. See United States v. McGill, 11 F.3d 223, 225- 26 (1st Cir.
    1993). The mainstay of his challenge, above, did not require an evidentiary
    hearing because it raised only an issue of law.

    16

    A hearing also was not required on the remaining claims, discussed seriatim
    below, because each was invalid as a matter of law, or contradicted by the
    record. Id. at 225.

    17

    1. There is no merit to Clemente's arguments that his counsel provided


    ineffective assistance, and the court erred during the plea colloquy, by failing to
    advise Clemente of the statutory details pertaining to concurrent and
    consecutive sentences. Even if one, or both of them had a duty to impart this
    information (which we doubt), the record belies any plausible claim that
    Clemente would not have pled guilty but for the omission, or that it resulted in
    a miscarriage of justice. See Hill v. Lockhart, 474 U.S. 52, 57-59 (1985) (to
    prevail on a claim of ineffective assistance in a plea agreement petitioner must
    show that there is a reasonable probability that, but for counsel's error, he
    would not have pled guilty but would have insisted on going to trial); United
    States v. Timmreck, 441 U.S. 780, 783 (1979) (nonconstitutional error in a Rule
    11 colloquy does not provide a basis for relief under Sec. 2255 unless it
    amounts to a complete miscarriage of justice or an omission inconsistent with
    the rudimentary demands of fair procedure).

    18

    2. The record contradicts Clemente's claim that the court failed to warn him that
    he would not be permitted to withdraw his plea if the court rejected the
    prosecution's sentencing recommendation. Although the court did not use
    formulaic words, the court's repeated emphasis on the invariable repercussions
    of a guilty plea, and the recess to permit Clemente to consult with counsel about
    the court's warnings, combined to leave no doubt about the finality of the plea.
    Cf. United States v. Medina-Silverio, 30 F.3d 1 (1st Cir. 1994) (Rule 11 is
    satisfied by substantial compliance, courts are not required to follow a formula
    of "magic words"). There was no fundamental defect in the plea colloquy.

    19

    3. Clemente's allegation that he was misled during the plea hearing recess by
    prosecutorial pressures and promises, is contradicted by the hearing transcript
    as well as his own affidavit. His affidavit recites only that his attorney told him
    during the recess that the prosecutor had stated his "firm belief" that the judge
    would impose a concurrent sentence after he heard of Clemente's cooperation
    and testimony at trial. The transcript shows that when Clemente returned to the

    hearing he swore under oath that no additional promises had been made. See
    Bemis, 30 F.3d at 222- 23 (in the absence of unusual facts lending plausibility
    to belated allegations, a defendant is bound by his or her sworn representations
    in court disclaiming the existence of additional promise).
    20

    Finally, Clemente was not entitled to the appointment of counsel for this Sec.
    2255 motion, see United States v. Mala, 7 F.3d 1058, 1063 (1st Cir. 1993), cert.
    denied, 114 S. Ct. 1839 (1994), and his argument that the district judge should
    have recused himself from hearing the motion is specious. See PanzardiAlvarez v. United States, 879 F.2d 975, 985 (1st Cir. 1989) (there is nothing per
    se wrong with the sentencing judge reviewing a Sec. 2255 petition), cert.
    denied, 493 U.S. 1082 (1990); see also Liteky v. United States, 114 S. Ct. 1147,
    1155 (1994) (a judge is not recusable because he has formed an opinion of the
    case based on information acquired while presiding over it, unless his opinion
    is so extreme as to display clear inability to render fair judgment); McGill, 11
    F.3d at 226 (a district judge may rely upon his memory of earlier proceedings
    in ruling on a Sec. 2255 motion).

    21

    Affirmed.

    For offenses committed after November 1, 1987, 18 U.S.C. Sec. 3584(a)


    (1984), now expressly authorizes the district court to impose concurrent
    sentences. See H.R. Rep. No. 1030, 98th Cong. 2d Sess. 126-27, reprinted in
    1984 U.S. Code Cong. & Ad. News 3309-10 [House Report]

    As applied to crimes committed prior to November 1, 1987, Sec. 4082(a), has


    been construed to mean that the Attorney General has the sole authority to
    designate the place of confinement. See, e.g., United States v. Williams, 651
    F.2d 644, 647 (9th Cir. 1981); United States v. Naas, 755 F.2d 1133, 1137 (5th
    Cir. 1985); United States v. Huss, 520 F.2d 598 (2d Cir. 1975); United States v.
    Janiec, 505 F.2d 983, 987-88 (3d Cir. 1974), cert. denied, 420 U.S. 948 (1975);
    United States v. Herb, 436 F.2d 566, 567 (6th Cir. 1971). This authority was
    delegated to the Bureau of Prisons in 28 C.F.R. Sec. 0.96. Since 18 U.S.C. Sec.
    3568 (1966) (repealed eff. Nov. 1, 1987) prescribes that a sentence for such
    crimes begins to run only when the person is "received" at the place of
    confinement, designation of the state prison was usually required to effect
    concurrency with an unexpired state sentence

    The second prong of Clemente's argument, that the sentencing court was also
    deprived of the power to impose a consecutive sentence, has been rejected by
    the majority of courts. See United States v. Hardesty, 958 F.2d 910, 913 (9th

    Cir. 1992) (citations); Pungitore, 910 F.2d at 1119 (same)

    You might also like