United States v. Choi

          DORDER DENYING § 2255 MOTION

          ROBERT E. BLACKBURN UNITED STATES DISTRICT JUDGE

         The matter is before me on the Motion To Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 [#78');">78]^{[1" name="FN1" id= "FN1">1]} filed November 14, 2017. The government filed a response [#81], and the defendant-movant filed a reply [#85]. I conducted a hearing on the motion on June 18 through 20, 2018, and took the matter under advisement. I now deny the motion.

         I. STANDARD OF REVIEW

         Under 28 U.S.C. § 2255(a), a federal prisoner claiming the right to be released on the ground that his federal 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," may move to have his or her sentence vacated, set aside, or corrected. The defendant-movant has the burden to establish his or her claim by a preponderance of the evidence. U.S. v. Washington, 1');">890 F.3d 891, 895 (10th Cir. 2018).

         The defendant-movant, Jung Yoon Choi (Ms. Choi), asserts in her motion that her counsel was ineffective in the course of proceedings which led to her entry of a guilty plea in this case. To prevail on any discreet claim of ineffective assistance of counsel, Ms. Choi must show as to that specific claim "that counsel's performance was deficient," i.e., "that counsel made errors so serious that counsel was not functioning as the ‘counsel' guaranteed the defendant by the Sixth Amendment." Strickland v. Washington, 466 U.S. 668, 687 (1984). She also must demonstrate that counsel's "deficient performance prejudiced the defense." Id. Although not insurmountable, the Strickland standard is "highly demanding." Kimmelman v. Morrison, 65');">65');">477 U.S. 365');">65, 382 (1986). In the context of a claim of ineffective assistance of counsel in connection with a plea agreement, prejudice can be shown only if the defendant demonstrates a reasonable probability that, but for the constitutionally deficient performance of counsel, the defendant would not have pleaded guilty and would have insisted on going to trial. Hill v. Lockhart, 74 U.S. 52');">474 U.S. 52, 59 (1985). I may address the two elements in any order, and I need not reach both if I find that Ms. Choi has failed to meet the requirements of one. Strickland, 466 U.S. at 697.

         Addressing the first element, my inquiry must be whether, considering all the circumstances as of the time of the conduct, "counsel's representation fell below an objective standard of reasonableness." Id. at 688. I review the performance of counsel with great deference, indulging "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.'" Id. at 689 (quotation omitted). “(C)ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Id. at 690; see also Ransom v. Johnson, 126 F.3d 716, 721 (5th Cir. 1997) ("Tactical and strategical decisions of counsel ‘if based on informed and reasoned practical judgment' will not be second-guessed") (quotation omitted).

         Even if Ms. Choi is able to show that the performance of her counsel was constitutionally deficient, she is not entitled to relief under § 2255 unless she can affirmatively prove the deficiencies created prejudice. Strickland, 466 U.S. at 693. The Supreme Court summarized this element of the Strickland test as requiring that the defendant show "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. The Court viewed a reasonable probability as "a probability sufficient to undermine confidence in the outcome." Id. In the context of a plea agreement, the defendant must show that she would not have pleaded guilty and would have insisted on going to trial. Hill, 474 U.S. at 59.

         Given the circumstances of this case and to ensure that Ms. Choi had a full opportunity to circumstantiate her claims, I conducted a hearing on her motion. Seven witnesses testified at the hearing. In assessing the credibility of the witnesses who testified at the hearing, I have considered all facts and circumstances shown by the evidence that affected the credibility of the witnesses, including the following factors: each witness's means of knowledge, his or her ability to observe, and his or her strength of memory; the manner in which he or she might be affected by the outcome of the hearing; the relationship each witness has to either side in the case; and the extent to which, if at all, he or she was either supported or contradicted by other evidence presented during the hearing or elsewhere in the record.

         II. BACKGROUND

         A. Timeline

         Ms. Choi claims her guilty plea in this case was involuntary because her counsel did not inform her adequately of the potential immigration consequences of her plea. In addition, Ms. Choi claims that, just before her change of plea hearing, one of her lawyers threatened her with dire consequences if she did not enter a guilty plea. To understand the context of the guilty plea of Ms. Choi and the information known to Ms. Choi in the context of her guilty plea, a timeline of events is helpful.

         Ms. Choi was charged by Information [#1] on October 2, 2015. She was charged with violation of 26 U.S.C. § 7212(a). That statute makes it a crime to corruptly endeavor to obstruct or impede the due administration of the Internal Revenue Code. After she was charged, Ms. Choi was released on bond. Order Setting Conditions of Release [#7]. A short time later, the government and Ms. Choi agreed to the terms of a Plea Agreement [#18]. When Ms. Choi and the government agreed to the terms of the Plea Agreement, the government agreed to

consider recommending a probationary sentence depending on the level of substantial assistance provided [by Ms. Choi]. However, in the event that the Defendant is deemed to have committed any new federal, state or local law offenses (as established by probable cause), the government no longer is obligated to file a Motion for Downward Departure under the terms of the plea agreement and is free to recommend any sentence up to the statutory maximum.

Plea Agreement [#18], pp. 4 - 5.

         A first change of plea hearing was attempted on December 17, 2015, with a Korean interpreter present.^[2] After commencing, but not completing, a Rule 11 advisement, the change of plea hearing was vacated and continued without date. Minutes [#15]. A second change of plea hearing was held on January 14, 2016. At the second change of plea hearing, Ms. Choi entered a plea of guilty to the crime charged in Count One of the Information, violation of 26 U.S.C. § 7212(a). At the conclusion of the hearing, her bond was continued.

         After preparation of a presentence report, a first sentencing hearing was convened on September 13, 2016. Before the hearing, the government filed a sentencing statement [#29]. There, the government contended Ms. Choi had committed new criminal offenses while she was on bond in this case. As a result, the government did not recommend a probationary sentence, but instead, recommended a custodial sentence of 19 months. Sentencing statement [#29], 13');">p. 13');">13');">p. 13.

         At the first sentencing hearing, both the position taken by the government on sentencing and some information in the presentence report raised concerns in the minds of Ms. Choi and her counsel. Counsel for Ms. Choi indicated that Ms. Choi may seek to file objections to the presentence report and may consider filing a motion to withdraw the guilty plea of Ms. Choi. As a result, the oral motion of Ms. Choi to continue the sentencing hearing was granted.

         Immediately after the first sentencing hearing, Ms. Choi and her counsel met together in an attorney conference room just outside of the courtroom. There, they continued to discuss the guilty plea of Ms. Choi and the possibility of filing a motion to withdraw her guilty plea. At the conclusion of this meeting, Ms. Choi elected not to file a motion to withdraw her guilty plea.

         A second sentencing hearing was convened on November 16, 2016. In the two months since the first sentencing hearing, Ms. Choi did not file a motion to withdraw her guilty plea. The government presented testimony to establish its contention that Ms. Choi had committed new criminal offenses while she was on bond in this case. The government continued to recommended a sentence of 19 months of imprisonment. I entered a judgment [#36] of conviction, sentenced Ms. Choi to 19 months in prison, and ordered her to pay restitution in the stipulated amount of 67, 560.00 dollars.

         Ms. Choi is a citizen of Korea. She was granted permanent resident status on June 15, 1989. Reply [#85], Exhibit A (Notice to Appear), CM/ECF p. 9. Ms. Choi now is subject to removal proceedings initiated by the U.S. Department of Homeland Security. Id., CM/ECF pp. 8 - 10. Her conviction in this case is the asserted basis for removal cited in the removal proceedings. Id.

         B. Guilty Plea

         Ms. Choi pled guilty to “obstructing and impeding the administration of the internal revenue laws, ” in violation of 26 U.S.C. § 7212(a). In her Plea Agreement [#18], Ms. Choi was advised that a conviction for violation of 26 U.S.C. § 7212(a) “may also carry with it significant immigration consequences, including deportation depending on the Defendant's status within the United States.” Plea Agreement [#18], pp. 5');">p. 5 - 6. Ms. Choi negotiated and signed her Plea Agreement with the assistance and advice of counsel. In her Statement by Defendant in Advance of Plea of Guilty [#19] (Statement In Advance), Ms. Choi also acknowledged: “I know that in addition to any punishment that the Court may impose, there are collateral consequences to pleading guilty to a crime. * * * If I am not a citizen of the United States, these consequences may include deportation from the United States….” Statement In Advance [#19], pp. 2 -3.

         At her second change of plea hearing on January 14, 2016, Ms. Choi was assisted by a Korean interpreter, Cheol B. Lee. Transcript [#65');">65], p. 3. Before commencing its Rule 11 plea colloquy, the court administered to Ms. Choi the solemn oath to tell the truth, subject to the pain and penalty of perjury. Id., p. 4. Immediately subsequent to the administration of the solemn oath to tell the truth, the court advised Ms. Choi of the criminal consequences she might suffer for making a false statement to the court during the change of plea hearing.^[3] Id.

         Asked if she understood and spoke some English, Ms. Choi indicated “not really.” Id., p. 5');">p. 5. She said she was able to communicate in Korean with the interpreter without difficulty. Id. Under oath, Ms. Choi acknowledged, inter alia, that she

• understood the importance of her oath to tell the truth and the possible consequences of making a false statement;

• had discussed the written plea agreement, which consisted of the Plea Agreement [#18] and the Statement by Defendant in Advance of Plea of Guilty [#19], with her attorney with the assistance of a Korean interpreter^[4];

• understood everything in the written plea agreement;

• understood that she had the right to a trial by jury and that she was waiving that right by entering her plea of guilty;

• had no questions or concerns about anything in the written plea agreement;

• signed the written plea agreement knowingly and voluntarily with the benefit of the advice and assistance of her counsel;

• understood her conviction may have severe immigration consequences, including deportation or removal; and

• was fully satisfied with her counsel, Mr. Steinberg and Mr. Kang.

Id., pp. 7 - 8, 12 - 16.

         The court asked “(h)as anyone forced you to participate in this plea agreement and (h)as anyone forced you to enter a plea of guilty to this crime?” To each question, Ms. Choi answered “No, Your Honor.” Id., p. 13. The court asked has “anyone made promises to you of which [the court is] unaware.” Id. Ms. Choi answered “No, Your Honor.” Id.

         At the change of plea hearing, the court gave the following advisement and asked the following question ...