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Lawyer Not Liable for Sentence Prediction

A trial counsel’s alleged faulty prediction as to the sentence petitioner was likely to receive if convicted on RICO charges arising from his participation in the Outlaws Motorcycle Club does not support his motion to vacate his sentence after he was convicted at trial; after an evidentiary hearing, the Richmond U.S. District Court concludes it was petitioner’s decision to reject the government’s plea offer.

Petitioner Mark Fiel contends counsel failed to properly advise him regarding a possible plea. This claim is premised on his perception that his counsel failed to effectively negotiate a plea agreement with the U.S., specifically by misjudging the chances of acquittal, miscalculating his sentencing guidelines, and inaccurately assessing his possible sentencing exposure if convicted.

According to Fiel, in the weeks preceding his trial his counsel expressed confidence in a favorable outcome. He maintains she expressed little interest in pursuing a plea agreement, advising that even if convicted he was facing an offense level of 19, and about 36 months in prison. At some point, the government offered a plea agreement of 21-27 months for a plea to two counts, Fiel alleges, and also a stipulation that Fiel played no aggravating or mitigating role in the offense. He says that after the government rejected his requested modifications, his counsel advised him to turn down the plea agreement.

In her affidavit, Fiel’s trial counsel recalls events differently. She denies having assessed his exposure at only 36 months, and asserted she disclosed that his minimum sentence at base offense level would be 36 months, but his sentence could be as high as 20 years. She says Fiel elected to wait until the jury trying the first group of Outlaws gang members returned a verdict before deciding on a plea. The government declined to defer entry of a plea until after a jury verdict in the other case, and withdrew the plea offer.

The 4th Circuit has been generally unsympathetic toward ineffective assistance of counsel claims based on inaccurate sentence predictions. Here, counsel’s predictions may have proven to be inaccurate, but they were never conveyed as a promise or guarantee. While her representation as retained counsel may have been lackluster, the court cannot conclude her advice regarding sentencing exposure fell below the objective standard of reasonableness articulated in Strickland.

The fatal flaw in Fiel’s quest to set aside his conviction is his own decision to reject the plea offer. In his somewhat murky and adumbrative explanation for rejecting the plea agreement, Fiel contends his counsel’s demeanor and prior sentencing predictions were instrumental in the rejection of the plea agreement. However, the hearing evidence clearly reflected that his decision to decline the plea agreement was the result of the government’s refusal to delete the description of the Outlaws Motorcycle Club as a criminal organization. The evidence also supported the conclusion that his pique was compounded by the prosecutor’s insistence that he either accept the plea or it would be withdrawn.

Careful application of the governing standard for representation in the plea agreement context could not support the conclusion that counsel’s representation was objectively unreasonable. Fiel has failed to show a reasonable probability that he would have accepted the plea offer had he been afforded effective assistance of counsel, and a reasonable probability that the plea would have been entered without the prosecutor canceling it.

The court denies petitioner’s motion under 28 U.S.C. § 2255.

U.S. v. Fiel (Hudson) No. 3:13cv526, March 3, 2015; USDC at Richmond, Va. VLW 015-3-129, 14 pp.

VLW 015-3-129

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