Friday, June 17, 2005

Elderly Defendant Not Permitted to Withdraw Plea Despite Poor Advice from Attorney about Guidelines Exposure

United States v. Anthony Guidice, Docket No. 04-3729-cr (2d Cir. June 16, 2005) (Feinberg, Sack, Katzmann) (Op. by Feinberg): The Circuit sets a very high hurdle in this case for defendants wishing to withdraw their guilty pleas based on grossly erroneous advice from counsel about their sentencing exposure. Although the Court does not create any per se rules in this decision, it relies heavily on the fact that the defendant could not point to any "weaknesses" in the Government's case against him to conclude that, despite counsel's admittedly awful advice, there is no reasonably probability that defendant would have proceeded to trial if he had been given correct information about his sentencing exposure (despite his claims to the contrary). Unfortunately, many defendants will be unable to make such a showing.

The essential facts are simple. Guidice was charged in a 4-count indictment with extortion-related offenses. Shortly before trial, he pleaded guilty to a single count of conspiracy to commit extortion, pursuant to a plea agreement. Among other things, Guidice and the Government agreed that he faced a Guidelines range of 37 to 46 months. (This is of course a pre-Booker case; therefore, this was a "mandatory" range and not merely an advisory one).

Unfortunately, the Probation Office in preparing the PSR determined that Guidice qualified as a career offender under ยง 4B1.1, thus elevating his sentencing range to 151 to 188 months. When he learned of this, Guidice moved to withdraw his plea, claiming ineffective assistance of counsel. Guidice explained to the court that "I'm no angel, but twelve or more years [in prison] is a death sentence for me," and that, as a result, he would've taken his chances and gone to trial had he been told of the correct range by counsel. (Although the opinion does not disclose Guidice's precise age, he is apparently quite elderly and infirm -- so much so that the district court (Judge Cote, no less) departed downward on the basis of his age and poor health to an eventual sentence of 72 months.). The district court denied the motion, concluding that Guidice had not met the prejudice component of the Strickland because, among other things, he could not point to "any weaknesses in the government's case that would have influenced his decision to proceed to trial." Op. at 7.

The Circuit affirmed, largely adopting the district court's reasoning: Guidice could not meet his burden on the prejudice prong of Strickland because he did not demonstrate a "reasonable probability" that, but for the bad advice, he would have gone to trial. The Court dismissed Guidice's statements -- that given his age, he would've gone to trial if his sentencing exposure, even on a guilty plea, was 151 to 188 months -- as "self-serving". The Court also rejected Guidice's contention that the district court imposed an "unduly burdensome" task upon him -- i.e., the burden of showing weaknesses in the Government's case in order to demonstrate that he would have gone to trial but for his attorney's bad advice. The Circuit explained that the district court merely "suggested that evidence of weakness in the government's case might have been one means of proving that Guidice would have gone to trial had he known his true sentencing exposure." Op. at 17.


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