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United States v. Bush-Bronson

United States District Court, District of Columbia

July 3, 2019

UNITED STATES OF AMERICA
v.
BIANCA BUSH-BRONSON, Defendant.

          MEMORANDUM OPINION

          TANYA S. CHUTKAN UNITED STATES DISTRICT JUDGE.

         Defendant Bianca Bush-Bronson has filed a Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody. (ECF No. 36 (“Def.'s Mot. to Vacate”).) Having considered the pleadings, the oral arguments of counsel, and for the reasons stated herein, the court will DENY Bush-Bronson's Motion to Vacate.

         I. BACKGROUND

         On April 22, 2016, Bush-Bronson pleaded guilty to one count of wire fraud, in violation of 18 U.S.C. § 1343. (ECF No. 6 (“Plea Agreement Letter”) at 1.) In signing the plea agreement, and in open court at her plea hearing, Bush-Bronson acknowledged that a violation of 18 U.S.C. § 1343 carries a statutory maximum sentence of 20 years of imprisonment and an estimated sentencing guidelines range of 30 to 37 months of imprisonment.[1] (Id. at 1, 3.) Bush-Bronson further acknowledged that the “sentence to be imposed is a matter solely within the discretion of the Court.” (Id. at 5.)

         On January 9, 2017, counsel for Bush-Bronson filed a Memorandum in Aid of Sentencing, arguing that the court should depart from the sentencing guidelines range and sentence her to a period of home confinement. (ECF No. 20 (“Def.'s Sentencing Mem.”) at 1.) Bush-Bronson further argued that a downward departure from the estimated sentencing guidelines range was warranted pursuant to U.S.S.G. § 5H1.6 because of her extraordinary family responsibilities. (Id. at 3-8.) The court denied Bush-Bronson's request for departure and imposed a sentence of 36 months of imprisonment and 36 months of supervised release. (See ECF No. 27 (“Judgment”) at 2-3.)

         Almost one year later, on January 19, 2018, Bush-Bronson filed a pro se motion to vacate her sentence under 28 U.S.C. § 2255, claiming, as she had at her sentencing, that a departure was warranted under U.S.S.G. § 5H1.6 due to her “Extraordinary Family Responsibilities.” (Def.'s Mot. to Vacate at 4.) Bush-Bronson argued that a departure from the guidelines range was warranted because she is the “[s]ingle parent of [a] severely mentally disabled son”; she is the sole provider of her son's financial, physical, and mental wellbeing; she is divorced; and her disabled son is currently under the care of her mother, who is also disabled. (Id.) She also claimed that her counsel “refused to file an appeal” to ask the court for a split sentence. (Id.)

         On April 16, 2018, Bush-Bronson filed an amendment to her § 2255 motion, expanding on her challenge to her counsel's performance. (ECF No. 37 (“Amendment”) at 1.) She also asserted four additional grounds, “Ground Two” through “Ground Five, ” for vacation of her sentence: (1) her base offense level was incorrectly calculated, (2) her criminal history score was incorrectly calculated, (3) the ordered restitution amount was incorrectly calculated, and (4) she is entitled to money from her former employer. (Id. at 1-2.) In the amendment, Bush-Bronson requested that the court reduce her sentence by six to nine months or permit her to serve the rest of her sentence under home confinement. (Id. at 2.) She also asked the court to correct the restitution amount and order her former employer to pay the money she is owed. (Id.)

         On April 27, 2018, the court ordered the government to file a response to Bush-Bronson's § 2255 motion by May 30, 2018. (Minute Order, dated Apr. 27, 2018.) The government complied with the court's order. (See ECF No. 47 (“Govt.'s Opp.”).) On June 6, 2018, Mary Elizabeth Davis noticed her appearance on behalf of Bush-Bronson. (ECF No. 48.) Almost a month later, the court ordered the parties to “file responses, if any, to pending motions on the docket by July 17, 2018.” (Minute Order, dated July 5, 2018.) Bush-Bronson's new counsel elected not to file a reply to address the arguments raised in the government's opposition to Bush-Bronson's § 2255 motion.

         On December 11, 2018, the court held a hearing on Bush-Bronson's § 2255 motion. At that hearing, defense counsel conceded that most of the claims raised by Bush-Bronson in her motion and amendment were filed out of time. (ECF No. 60 (“Mhrg. Tr.”) at 4:14-5:12.) And in a supplemental brief, defense counsel stated that “[t]here is a single remaining issue for this Court to decide, that is, was counsel ineffective for failing to file a notice of appeal when asked to do so.” (ECF No. 61 (“Def.'s Supp. Br.”) at 8.)

         II. LEGAL STANDARD

         To obtain relief under 28 U.S.C. § 2255, a defendant must show that her “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.” 28 U.S.C. § 2255(a). A defendant bears the burden of proving her claims by a preponderance of the evidence, United States v. Bell, 65 F.Supp.3d 229, 231 (D.D.C. 2014), and “must clear a significantly higher hurdle than would exist on direct appeal.” United States v. Burwell, 160 F.Supp.3d 301, 308 (D.D.C. 2016) (quoting United States v. Frady, 456 U.S. 152, 166 (1982)). If the court finds “a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence [her] or grant a new trial or correct the sentence as may appear appropriate.” 28 U.S.C. § 2255(b).

         When confronted with motions to vacate, courts are to conduct a hearing “[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.” 28 U.S.C. § 2255(b). Here, out of an abundance of caution, the court held an evidentiary hearing to determine whether Bush-Bronson is entitled to relief.

         III. DISCUSSION [2]

         Bush-Bronson argues that she should be permitted to file a direct appeal for ineffective assistance of counsel because her former counsel, Elita Amato, did not file a notice of appeal when asked to do so, and incorrectly advised Bush-Bronson that she would be in breach of her plea agreement if she appealed. (Def.'s Mot. to Vacate at 5; Amendment at 1; Def.'s Supp. Br. at 4-11.)

         To demonstrate ineffective assistance of counsel, a defendant must show (1) that her counsel's performance was deficient, and (2) that the deficient performance prejudiced her defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). As to the first prong, district courts must “indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” Id. at 689. The second prong “requires the defendant to demonstrate that ‘there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'” United States v. Eli, 379 F.3d 1016, 1019 (D.C. Cir. 2004) (quoting Strickland, 466 U.S. at 694).

         A. Failure to File a Notice of Appeal

         1. Flores-Ortega

         In Roe v. Flores-Ortega, 528 U.S. 470 (2000), the Supreme Court examined “the proper framework for evaluating an ineffective assistance of counsel claim, based on counsel's failure to file a notice of appeal without respondent's consent.” Id. at 473. In that case, based on a conversation that took place after the pronouncement of sentence, Flores-Ortega believed that his counsel was going to file an appeal on his behalf. Id. at 475. He then underwent an evaluation that precluded him from communicating with his counsel during the remainder of the 60-day appeal period. Id. at 474. Although he wrote “bring appeal papers” in Flores-Ortega's file, defense counsel did not recall a conversation with Flores-Ortega about the appeal and did not file a notice of appeal. Id. at 474-75. After several challenges to his sentence, Flores-Ortega filed a habeas petition alleging constitutionally ineffective assistance of counsel based on his counsel's failure to file a notice of appeal on his behalf after promising to do so. Id. at 474. In remanding the case for further review, the Court set forth the relevant framework for assessing each Strickland prong when a petitioner alleges that her counsel is ineffective for failure to file a notice of appeal.

         With respect to the first prong-whether counsel's representation fell below an objective standard of reasonableness-the Court rejected a bright-line rule that counsel must always file a notice of appeal, and identified the proper application of the law in three scenarios. Id. at 477-81. Applying the law in the first two scenarios is relatively straightforward. If an attorney disregards “specific instructions” from a client to file a notice of appeal, the attorney acts in an objectively unreasonable manner. Id. at 477. And if a defendant instructs her counsel not to file an appeal, the defendant cannot later raise an ineffective assistance of counsel claim based on her attorney's failure to file a notice of appeal. Id. The third scenario-“when the defendant has not clearly conveyed [her] wishes one way or another”-requires more analysis. Id. The court must first determine “whether counsel in fact consulted with the defendant about an appeal.” Id. at 478. A consultation occurs when an attorney advises “the defendant about the advantages and disadvantages of taking an appeal and mak[es] a reasonable effort to discover the defendant's wishes.” Id. If counsel consulted with the defendant regarding the appeal, counsel performs in an unreasonable manner “only by failing to follow the defendant's express instructions with respect to an appeal.” Id. If counsel did not consult with the defendant, the court must determine whether the failure to consult constitutes deficient performance. Id. Counsel performs deficiently where (1) a “rational defendant would want to appeal, ” or (2) a “particular defendant reasonably demonstrated to counsel that [s]he was interested in appealing.” Id. at 480.

         On the second prong-whether counsel's deficient performance prejudiced the defendant-the Court held that “a defendant must demonstrate that there is a reasonable probability that, but for counsel's deficient failure to consult with [her] about an appeal, [s]he would have timely appealed.” Id. at 484. In making this showing, a defendant cannot rely solely on evidence “that [s]he sufficiently demonstrated to counsel [her] interest in an appeal.” Id. at 486. More is required. Id.

         2. Garza

         In Garza v. Idaho, 139 S.Ct. 738 (2019), the Supreme Court explored the scope of Strickland's second prong and its Flores-Ortega holding that “when an attorney's deficient performance costs a defendant an appeal that the defendant would have otherwise pursued, prejudice to the defendant should be presumed with no further showing from the defendant of the merits of his underlying claims.” Id. at 742 (internal citations and quotations omitted). Specifically, the Court examined whether the rule outlined in Flores-Ortega applies when “the defendant has, in the course of pleading guilty, signed what is often called an ‘appeal waiver'-that is, an agreement forgoing certain, but not all, possible appellate claims.” Id. In Garza, the defendant signed two plea agreements containing clauses waiving his right to appeal. Id. After his sentencing, Garza told his attorney that he wanted to appeal. Id. at 743. He then called his attorney multiple times and sent him letters reminding him of his desire to appeal. Id. Garza's attorney received the requests to file a notice of appeal, but he did not do so because he ...


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