United States District Court, D. Colorado
DORDER DENYING § 2255 MOTION
E. BLACKBURN UNITED STATES DISTRICT JUDGE
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.
STANDARD OF REVIEW
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).
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.
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")
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.
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.
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
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.
change of plea hearing was attempted on December 17, 2015,
with a Korean interpreter present. 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.
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.
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.
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
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.
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.
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.
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. Id.
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
• 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
• 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
• 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
• 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.
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.
change of plea hearing, the court gave the following
advisement and asked the following question ...