United States District Court, D. Maine
ORDER DENYING MOTION FOR RECONSIDERATION OF ORDER ON PETITION FOR WRIT OF AUDITA QUERELA PURSUANT TO THE ALL WRITS ACT, 28 U.S.C. § 1651, DENYING MOTION TO EXPUNGE CONVICTION, AND GRANTING PRO SE MOTION TO REDUCE SENTENCE
JOHN A. WOODCOCK, Jr., District Judge.
On August 20, 2014, William Leland moved for reconsideration of his pro se motion for writ of audita querela, which asked the Court to recalculate his sentencing guideline range to eliminate a two-level enhancement for obstruction of justice, to grant a three-level reduction for acceptance of responsibility, and to allow a further two-level reduction pursuant to Amendment 782 of the United States Sentencing Guidelines. Mr. Leland separately asks the Court to expunge his conviction for possession of a firearm by a felon. Finally, he later filed a separate pro se motion to reduce sentence. The Court denies the motion for reconsideration of its order denying the motion for writ of audita querela, denies the motion to expunge his firearms conviction, denies the motion based on ineffective counsel, but grants the motion for reduction of sentence under Guidelines Amendment 782 and reduces his sentence from 252 months to 201 months.
I. BACKGROUND OF MOTION FOR WRIT OF AUDITA QUERELA PURSUANT TO ALL WRITS ACT, 28 U.S.C. § 1651
A. Motion and Order
Sentenced on October 28, 2005 to 252 months of incarceration for seven federal felonies, representing his leadership role in a major drug trafficking conspiracy involving cocaine, methamphetamine, oxycodone, marijuana, and MDMA (Ecstasy) and possession of a firearm by a felon, William Leland has waged a determined and relentless campaign to obtain a court order reducing his sentence. The primary source of Mr. Leland's discontent is that the sentence was more severe than the one he thought he was going to receive under the terms of the plea agreement with the Government.
1. The Plea Agreement
The plea agreement provided in part:
3. Pursuant to Fed. R. Crim. P. 11(c)(1)(B) the parties agree to take the following positions at sentencing:
A. The parties agree to recommend that the Court find that the Base Offense Level pursuant to U.S.S.G. § 2D1.1 is 32 and that the amount of the narcotics and other illegal substances involved in all reasonably foreseeable acts or omissions of the defendant and other co-conspirators totals between 1, 500 and 3, 000 kilograms of marijuana on the drug equivalency table.
B. The parties agree to recommend that the evidence does not support a finding that any dangerous weapon (including a firearm) was possessed in relation to any of the drug offenses.
C. The parties agree to recommend that the Court find that the offense level should be increased by four (4) points under U.S.S.G. § 3B1.1(a) because the defendant was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive.
D. The Government agrees to recommend that the Court find that the Defendant has accepted responsibility for the offenses of conviction in the above-captioned Indictment, and that the Court should reduce by 3 levels Defendant's Adjusted Offense Level under U.S.S.G. § 3E1.1.
The Government reserves the right not to recommend a reduction under U.S.S.G. § 3E1.1 if, at any time between his/her execution of this Agreement and sentencing Defendant (a) fails to admit a complete factual basis for the plea; (b) fails to truthfully admit his/her conduct in the offenses of conviction; and (c) falsely denies or frivolously contests relevant conduct for which Defendant is accountable under U.S.S.G. § 1B1.3. Defendant understands that he/she may not withdraw his/her guilty plea if, for any of the reasons listed above, the Government does not recommend that he/she receive a reduction in Offense Level for acceptance of responsibility.
4. The Government and the Defendant agree to recommend that the Court impose a period of imprisonment within the applicable guideline range, in addition to restitution and supervised release to be determined by the Court at the time of sentencing. The parties agree not to seek any further additions or reductions to the guidelines, other than those set forth in section Three. The parties agree not to seek nor recommend any upward or downward departures. The parties expressly agree and understand that these recommendations will not be binding on the Court and should the Court reject the recommendations of the parties, Defendant will not thereby be permitted to withdraw his/her guilty plea. The parties agree and understand that the Court has the discretion to impose any lawful sentence.
Agreement to Plead Guilty at 4-5 (ECF No. 207) ( Plea Agreement ). Finally, in paragraph 6, Mr. Leland agreed not to "appeal or collaterally attack any matter pertaining to this prosecution and sentence as long as the sentence of imprisonment is less than 210 months." Id. at 5.
2. The Rule 11 Hearing
On January 27, 2004, the Court engaged Mr. Leland in an extensive Rule 11 colloquy. Tr. of Proceedings at 1-29 (ECF No. 306). The Court specifically advised Mr. Leland that the statutory maximum for two of the counts was life imprisonment. Id. at 7:15-23. The Court warned Mr. Leland that depending on the drug quantity, there were statutory minimum sentences of either ten or five years. Id. at 8:21-9:8. The Court reviewed detailed contents of the plea agreement with Mr. Leland. First, the Court established that Mr. Leland was pleading guilty to the charged crimes because he was actually guilty and that he was truthfully admitting to the facts underlying the offenses:
THE COURT: Now, Mr. Leland, have you pled guilty to Counts 1, 2, 3, 6, 8, 10, and 14 of the second superseding indictment of this case because you are actually guilty?
THE DEFENDANT: Yes.
Tr. of Proceedings at 5:16-19 (ECF No. 306) ( Rule 11 Hr'g ).
THE COURT: Now, as a part of your pleading guilty, I must find there's a factual basis for your guilty plea, and to assure myself there is such a factual basis, I will be asking you questions about the conduct that gave rise to these charges, and you must answer my questions truthfully. Do you understand?
THE DEFENDANT: Yes, sir.
Id. at 16:8-14. Later, the Court returned to the prosecution version of the offenses and asked Mr. Leland direct questions about the underlying facts:
THE COURT: Now, Mr. Leland, have you had an opportunity to review [the] government's version of the offense dated January 27, 2004?
THE DEFENDANT: Yes, sir.
THE COURT: I'm going to ask a very important question, Mr. Leland, and I want your honest answer. Is there any respect with which you disagree with what is set forth in government's version of the offense dated January 27, 2004?
THE DEFENDANT: No, sir.
THE COURT: Is the information contained in the government's version of the offense dated January 27, 2004, true to your own personal knowledge?
THE DEFENDANT: Yes, it is.
Id. 18:5-18. Before turning to the Plea Agreement, the Court directly asked Mr. Leland whether anyone had threatened him or attempted to force him in any way to plead guilty:
THE COURT: Now, the next part of this process, Mr. Leland, is for me to assure myself that you're pleading guilty today voluntarily, of your own free will. So I am going to ask you a number of questions directed to that issue. Has anyone threatened you or has anyone attempted to force you to get you in any way to plead guilty?
THE DEFENDANT: No.
The Court also questioned Mr. Leland closely about his understanding of the Plea Agreement's sentencing provisions:
THE COURT: This contains a number of references to recommendations that the parties agree to make to the court concerning base offense levels and whether the evidence supports a finding of a dangerous weapon possessed in relation to the drug offense, increases in points, acceptance of responsibility, and other matters. Did you review that paragraph before coming into court today?
THE DEFENDANT: Yes, I did.
THE COURT: What I want you to understand, Mr. Leland, is this. That as far as sentencing is concerned, this plea agreement permits you and your lawyer, Mr. Largay, and the prosecutor to make recommendations to the court regarding sentencing, but the authority to determine the appropriate sentence in this case rests with me as the judge in this court. Do you understand that, sir?
THE DEFENDANT: Yes, sir.
THE COURT: If I do not accept the recommendations, even those recommendations that are set forth in paragraph 3, you will have no right to withdraw your guilty plea. Do you understand?
THE DEFENDANT: Yes, I do.
Id. at 22:24-23:19.
The Court addressed with Mr. Leland the potential impact of the Sentencing Guidelines:
THE COURT: I can't determine the guideline sentence until I've read a presentence report the probation office will prepare and until I've given your lawyer and the prosecutor an opportunity to challenge the facts in the probation office report. After I determine what guideline does apply to the case, I still have the authority in some circumstances to impose a sentence that is more severe or it could be less severe than the sentence called for by the applicable guideline. Do you understand?
THE DEFENDANT: Yes, sir.
THE COURT: What I want you to understand, Mr. Leland, [is] that even if I impose a sentence that is more severe than the one called for by the applicable guideline, you will still not be permitted to withdraw your guilty plea. Do you understand?
THE DEFENDANT: Yes, I do.
Finally, the Court directly asked Mr. Leland whether there were any side deals not set forth in the Plea Agreement:
THE COURT: Now, aside from this written plea agreement, has anyone made any promises to you in an effort to get you to plead guilty?
THE DEFENDANT: No, sir.
THE COURT: Has anyone made any promises to you as to what kind of sentence I will ultimately impose?
THE DEFENDANT: No, sir.
THE COURT: Has anyone made any promises to you, other than what is contained in paragraph 3 of the agreement to plead guilty? Has anyone made any promises to you, other than what is set forth there -
THE DEFENDANT: No.
THE COURT: - as to what the prosecutor's recommendation will be?
THE DEFENDANT: No.
3. The Presentence Report
On May 4, 2004, the Probation Office (PO) issued its first version of the
Presentence Report (PSR) in this case and it revised the PSR on May 26, 2004 and October 19, 2005. PSR at 2. The PSR contained some disturbing news. Regarding the PO's comments on obstruction of justice, paragraph 60 of the PSR read:
In March 2004, following his guilty plea, defendant Leland wrote a letter to members of the Hell's Angels noting his desire to cause bodily injury to codefendant Robert Stewart, as Stewart provided incriminating information to authorities regarding Leland. Therefore, the defendant, directly or indirectly, attempted to threaten, intimidate or otherwise unlawfully influence a codefendant or witness. Further, in March 2004, defendant Leland disseminated discovery material to others, including prison inmates, known felons in the community and other Hell's Angels.
Id. at 17. The PO recommended that the Court impose a two-level enhancement for obstruction of justice and deny the three-level reduction for acceptance of responsibility. Id. at 18. The PO calculated Mr. Leland's offense level as follows: (1) it began with a base offense level of 32 based on drug quantity, (2) it applied a two-level dangerous weapons enhancement, (3) it applied a four-level organizer or leader enhancement (4) it recommended a two-level enhancement for obstruction of justice, and (5) it denied acceptance of responsibility. The result was a total offense level of 40. Id. at 17-18. The PO calculated Mr. Leland's criminal history category at Category II. Id. at 20. It arrived at a Guideline sentence range of imprisonment of between 324 and 405 months. Id. at 23.
4. The Motion to Withdraw the Guilty Plea
On January 19, 2005, Mr. Leland moved to withdraw his guilty plea. Mot. to Withdraw Guilty Plea (ECF No. 279). In his motion, he argued that (1) he had discovered that his wife was involved in an affair with one of the Government's confidential informants and that together they had plotted to put him in prison, (2) his wife had the opportunity and apparent desire to place methamphetamine in the vehicle in which he was traveling, (3) that there were repeated weight changes, color changes, and packing differences in the alleged methamphetamine found in the spare tire of the vehicle in which the Defendant was traveling, (4) that the Government improperly seized the Defendant's camera and film, (5) that the then-recent issuance of the United States v. Booker, 543 U.S. 220 (2005) required that the Defendant be allowed to withdraw his guilty plea, (6) that the Government failed to provide the Defendant with all pertinent discovery, and (7) that Pamela Paradis, a co-conspirator, admitted she perjured herself when she testified at Mr. Leland's detention hearing. Id. at 1-2. In the motion, Mr. Leland's counsel wrote that "there are many issues with the discovery that the Defendant believes support his claim of innocence." Id. at 3.
5. The Hearing on the Motion to Withdraw Guilty Plea
On March 10, 2005, the Court held an oral argument on the motion to withdraw the guilty plea at which Mr. Leland was present. Tr. of Proceedings (ECF No. 290). During that hearing, his counsel confirmed that Mr. Leland was "without knowledge that the methamphetamine was in the tire in the trunk of his car." Id. Attach. 1 at 32:25-33:3. He also asserted that he was in fact innocent of any of the crimes to which he pleaded guilty, including the firearm possession charge. Id. at 30:24-31:1 ("I conferred with him a moment ago, Your Honor. He maintains innocence with respect to more than just that one crime"); 33:25-34:2 (THE COURT: "So he didn't possess the firearm? MR. LARGAY: That's what he maintains").
6. The Order on the Motion to Withdraw Guilty Pleas
On April 7, 2005, the Court denied Mr. Leland's motion to withdraw his guilty pleas. Order on Def.'s Mot. to Withdraw Guilty Plea (ECF No. 291).
7. The Presentence Conference
At the final Presentence Conference on October 24, 2005, the Court raised the question of the Probation Officer's recommendation to impose an obstruction of justice enhancement. Tr. of Proceedings at 5:25-8 (ECF No. 341) ( Presentence Conf. Tr. ). The Court confirmed that Mr. Leland objected to the obstruction of justice enhancement on two grounds: "First, that the letter about Mr. Stewart is not as some would interpret it to be; and, secondly, that he didn't disseminate discovery, rather, the discovery was stolen from his cell." Id. at 6:11-14. The Government took the position that under the terms of the plea agreement, it could not argue for an obstruction enhancement. Id. at 6:15-20. The Court also discussed acceptance of responsibility. Id. at 9:4-20.
8. The Sentencing Hearing
The Court sentenced Mr. Leland on October 27, 2005. Tr. of Sentencing Hr'g (ECF No. 339) ( Sentencing Hr'g ). During the sentencing hearing, the Court adopted much of what the parties had agreed to in the Plea Agreement in calculating the Guideline sentence range. The Court began with the base offense level of 32, Plea Agreement ¶ 3(A); it added a four-level enhancement for leadership role, id. ¶ 3(C); and, although the issue was a close one, the Court accepted the parties' argument that the firearms enhancement would not apply. Id. ¶ 3(B).
a. The Obstruction Enhancement
This left two issues: whether Mr. Leland had attempted to obstruct justice and whether he should be accorded acceptance of responsibility. The obstruction of justice issue first related to a letter in Mr. Leland's distinctive handwriting to a man named "David" discussing Robert Stewart, a codefendant and witness against Mr. Leland. Sentencing Hr'g at 62-63. Referring to Mr. Stewart, Mr. Leland's letter stated in part:
Sending some paperwork that you and others in your area will be interested in... That bastard has been a rat since 2000. He told a lot of lies about me.
Id. at 62. Mr. Leland's letter then referred to a man named Alan McDougal and said:
Both of them have been rats for a long time... The club didn't support me through this because of them, and now the club knows the difference. I hope they come around. Well, David, I always like you a lot and wanted you to know what he was. I pray I meet him in here someday. He thinks he's tough. I'll show the asshole what tough is. You take care of yourself.
Id. Mr. Leland signed the letter "Your real friend, Bill Leland, Hells Angels." Id. at 62-63. Mr. Leland attached seven pages of investigative reports that detailed Mr. Stewart's involvement in the greater conspiracy. Id. at 63. At the end of the investigative report, Mr. Leland wrote:
Look at that. The asshole gave up his in-laws. What a nice guy.
A second matter was a letter dated April 26, 2004 that Mr. Leland wrote his son, Derek Leland, thanking him for "photocopying all that stuff on Omar and Donny Grace." Id. Mr. Leland says that the information "is going to help me a lot." Id. He asked his son to mark the information "Legal correspondence" in the lower right-hand corner and mail it to Walter Cobb at the same address as his, namely the Maine State Prison. Id. The Government produced evidence that Mr. Leland's request to his son violated the prison's mail policy. Id. Omar and Don Grace were both prosecuted, convicted and sentenced as members of Mr. Leland's drug trafficking conspiracy. See United States v. Don Grace, Docket No. 1:07-cr-00007-JAW, Docket No. 1:02-cr-00017-JAW; United States v. Omar Grace, Docket No. 1:02-cr-00017-JAW.
A third matter was the fact that when law enforcement executed a search warrant at the Old County Road, Hampden, Maine residence of a man named Thomas Dunroe, a known and convicted drug dealer, they came upon an extensive Drug Enforcement Agency (DEA) investigative report, detailing the status of a number of DEA investigations in the Bangor, Maine area. Sentencing Hr'g at 63-64. A cover letter in the report was from Assistant United States Attorney (AUSA) Daniel Perry to Attorney Christopher Largay, who was Mr. Leland's defense counsel, and the cover letter referenced the criminal docket number of this case. Id. at 64.
Regarding Mr. Leland's letter about Robert Stewart, the Court found that "it constitutes a threat against Mr. Stewart" and observed that "I can't understand any other purpose in the letter other than to alert other individuals who may know Mr. Stewart that he was acting as a witness against Mr. Leland and to have them take the kinds of action that Mr. Leland promises to take." Id. at 64-65. The Court noted that the threat against Mr. Stewart was serious enough in itself, but that Mr. Leland later filed a motion to withdraw his guilty plea and if that motion had been successful, Mr. Stewart "would have been front and center during the course of that trial." Id. at 65. The Court found the information that Mr. Leland had received from his son and had urged his son to send to Walter Cobb to involve Omar and Don Grace, "both of whom are mentioned as being connected with Mr. Leland in the drug distribution crime to which he has pleaded guilty." Id. at 65. Finally, the Court said that "whoever sent [the DEA] information to Mr. Dunroe had the intent to obstruct or interfere with an ongoing governmental investigation." Id. It offered two possibilities: Mr. Leland or Attorney Largay. Id. at 65. Although Mr. Napolitano offered a third possibility, namely another inmate, the Court noted that there was "no evidence other than what I have before me" and the "only inference I can draw is that it was sent to Mr. Leland and then found its way one way or the other from Mr. Leland's cell to the Old County Road." Id. at 66-67.
Based on all of this information, the Court applied the two-level obstruction of justice enhancement under USSG § 3C1.1. Id. at 67-68. The Court concluded that Mr. Leland's letter to "David" was a threat against a material witness, that his letter to Derek Leland was a violation of prison regulations and involved co-conspirators, and that Mr. Leland was involved in the dissemination of information he had received from his attorney that obstructed or attempted to obstruct an ongoing federal investigation of Bangor area drug dealing. Id. at 67-68.
b. Acceptance of Responsibility
Unlike the obstruction of justice enhancement, where the Government did not seek the enhancement pursuant to the terms of its Plea Agreement, the Government actively argued that Mr. Leland should not receive the three-level reduction for acceptance of responsibility under USSG § 3C1.1. Id. at 69. The Government contended that Mr. Leland had breached the Plea Agreement by frivolously filing his motion to withdraw his guilty plea and falsely contending that he was actually innocent of the charged crimes. Id. The Government also noted that as the Court had imposed the obstruction of justice enhancement, the Guidelines provide that acceptance of responsibility should ordinarily not be given. Id.
The Court denied the acceptance of responsibility reduction because following the guilty plea, Mr. Leland had repeatedly falsely claimed his innocence in letters to the Court and by filing his motion to withdraw his guilty plea. Id. at 73-78.
c. Criminal History
At the sentencing hearing, counsel agreed that Mr. Leland was a criminal history category I, not II as was set forth in the PSR. Id. at 78.
d. Guideline Calculations
The Court found the base offense level to be 32. Id. at 81-82. The Court applied the following enhancements: (1) a four-level organizer or leader enhancement under USSG § 3B1.1(a), and (2) a two-level obstruction of justice enhancement under USSG § 3C1.1. Id. at 82. The Court declined to apply the two-level dangerous weapons enhancement, and declined to allow a reduction for acceptance of responsibility. Id. The total offense level was 38 and the criminal history category was I, resulting in a Guideline sentence of 235 to 293 months. Id. The Court imposed a 252-month sentence in the lower end of the applicable Guideline sentence range. Id. at 102.
B. Fourteen Post-Trial Motions
Mr. Leland has never accepted the 252-month sentence and has kept the courts and Government busy responding to his numerous legal challenges to the sentence; in particular, he rankles at the Court's obstruction of justice and acceptance of responsibility conclusions and has waged an unremitting and determined effort to force the Court to alter its judgment and impose a more lenient sentence.
First, on October 31, 2005, he appealed to the First Circuit Court of Appeals the Court's denial of his motion to withdraw the guilty pleas and he complained about the asserted ineffectiveness of his prior counsel. On September 22, 2006, the First Circuit rejected Mr. Leland's complaint about the motion to withdraw his guilty pleas and concluded that his arguments about ineffective counsel were premature; it affirmed the judgment of conviction and sentence. United States v. Leland, 196 Fed.App'x 9 (1st Cir. 2006).
Second, on January 29, 2007, acting on the First Circuit's suggestion, Mr. Leland moved to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. Leland v. United States, Docket No. 07-10-JAW, Mot. Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (ECF No. 1). In that filing, Mr. Leland objected to the fact that he was not allowed to withdraw his guilty pleas and he says that he tried to appeal that decision but his lawyer failed to prosecute it after filing the notice of appeal. Id. at 5. He also complained that his attorney had convinced him to plead guilty and that he did not understand that in entering into the plea agreement, he was waiving his rights. Id. at 6. ...