The opinion of the court was delivered by: Michael M. Mihm United States District Judge
Before the Court is Petitioner Ronald Valle's ("Valle") Motion pursuant to 28 U.S.C. § 2255. Valle alleges his attorney, George Taseff ("Taseff"), failed to adequately represent him during his sentencing hearings before this Court. For the reasons set forth below, Valle's Motion is DENIED.
Valle was charged in case number 02-40201, with one count of aggravated bank robbery, one count of interstate transportation of a stolen motor vehicle, one count of false representation of a social security number, and six counts of bank fraud. In addition, Valle was charged in case number 02-40154, with a supervised release violation stemming from a previous bank robbery sentence imposed in 1994. Valle entered a guilty plea to Counts One, Two, and Three, pursuant to a written plea agreement and entered an admission to the supervised release violation. At that time, the Court directed probation services to complete a written pre-sentence report (PSR).
The PSR assigned a total offense level of 19. Valle's criminal history category was VI based on 13 total criminal points, resulting in a guideline sentencing range of 63-78 months. Valle faced a maximum term of imprisonment of three years on the revocation of his term of supervised release, which was required to be served separately.
The PSR found three bases for the Court to depart upwards from the guideline range. First, the PSR stated the Court could depart upwards for counts of conviction not accounted for in the base offense level. Second, the PSR stated the Court could depart upwards if reliable information indicated that the criminal history category did not adequately reflect the seriousness of Valle's past conduct or likelihood he would commit other crimes. The PSR indicated that Valle would have qualified as a career offender had his prior armed bank robbery and five bank robbery convictions not been combined in the 1994 case. Third, the PSR stated the Court could depart upwards if it determined that, pursuant to USSG § 5K2.0, the case was outside the heartland of other bank robbery cases.
During the first sentencing hearing held on July 18, 2003, the Government adopted the PSR's assessment of the grounds for upward departure. The Government informed the Court that the Defendant, represented by Taseff, would agree to a five level upward departure and a 120 month total sentence.
The Court responded that the recommended 120 month sentence was acceptable as long as it was coupled with consecutive terms of supervised release on all three counts of conviction. The Court noted its concern that, due to Valle's extensive criminal history, he was likely to re-offend without a lengthy supervised release.
Prior to imposing this sentence, the Court was advised that the Seventh Circuit held 18 U.S.C. § 624(e) prohibited consecutive terms of supervised release. See United States v. Danser, 270 F.3d 451 (7th Cir. 2001). As a result, the Court withdrew its approval of the proposed sentence and explained that without the availability of a lengthy supervised release term, it could not agree to the parties' recommended sentence. The Court continued the sentencing to a later date and stated that Valle would have the opportunity to withdraw his guilty plea if he so desired.
At the second sentencing hearing held on July 23, 2003, the Court gave Valle the opportunity to withdraw his plea, conceding that it intended to impose a sentence with an upward departure. After discussing the plea agreement with the Government, where the Government agreed to rescind the paragraphs addressing appeal waivers and 2255 waivers, Valle agreed to plead guilty. The Court informed Valle that the sentencing would be held August 22, 2003, and that Valle could again choose to withdraw his guilty plea.
At this third sentencing hearing, the parties presented the Court with an amended plea agreement. This new plea agreement indicated it superseded the previous agreement, added Valle's acknowledgment that the Government would be seeking an upward departure at sentencing, and deleted the waiver provisions. The Court reviewed the plea agreement and the new provisions with Valle, and Valle confirmed that he did not wish to withdraw his guilty plea.
The Court adopted the factual findings and guideline application set forth in the PSR. In imposing an upward departure from the guidelines, the Court expressed concern over Valle's past criminal history. In addition, the Court found Valle admitted to having robbed many additional banks, even though he was never convicted in these bank robberies. Further, the Court found that Valle would have career offender status had the bank robberies where he was convicted not been joined together for sentencing. Finally, the Court expressed concern that after the prior bank robberies and supervised release, when Valle had "an opportunity to either go straight or commit another bank robbery, [he] chose to commit another bank robbery." The Court concluded that, under the totality of the circumstances, the case was "outside the heartland."
Accordingly, the Court sentenced Valle to 139 months of imprisonment for the current bank robbery and 24 months imprisonment for violating his supervised release, to run consecutive to the first sentence. Valle appealed his sentence to the Seventh Circuit, and the Seventh Circuit ordered a limited remand to determine, based on United States v. Booker, whether the Court would impose the same sentence. Thereafter, the Court entered an order finding that the sentence imposed was the correct sentence. The Seventh Circuit affirmed the judgment and held that the sentence of 163 months for aggravated bank robbery was not unreasonable, even if there was some doubt in the PSR that Valle confessed to 19 additional bank robberies.
Valle filed this current motion, arguing his attorney (1) failed to object to and demand a hearing on the confession of non-charged bank robberies used to enhance this sentence; (2) failed to object and argue against the court's statement related to Valle's alleged mental problems, which, he claims, were used to warrant the enhancement; and (3) failed to object to the ...