Abramo v. United States, 1:12-cv-01803

Background

Philip Abramo, a member of the DeCavalcante crime family, pled guilty by superseding information (July 9, 2009) to conspiracy to commit murder (18 U.S.C. §1959(a)(5)), conspiracy to commit loansharking, and receiving proceeds of an extortion (18 U.S.C. §880) pursuant to a written plea agreement that waived appeals and collateral attacks for any sentence of 18 years or less.
Abramo was previously convicted at trial (2003) and sentenced to life; the Second Circuit vacated that conviction for plain Crawford error and remanded, leading to the 2009 plea before Judge Rakoff.
The plea stipulated use of the Sentencing Guidelines as of November 1, 2008 and an agreed Guidelines sentence of 18 years; Judge Rakoff sentenced Abramo to 15.5 years (granting 30 months credit for a prior Florida sentence) and explicitly stated he would have imposed the same sentence under the older Guidelines.
Abramo appealed despite the waiver; the Second Circuit enforced the waiver, dismissing the appeal but noting ineffective-assistance claims that attack counsel's advice during plea negotiations may survive a waiver and should be raised under 28 U.S.C. §2255.
Abramo filed a §2255 petition alleging (inter alia) ineffective assistance of counsel for failing to identify Ex Post Facto problems in applying 2008 Guidelines, an issue as to Count Three (allocution to 1990 conduct predating the 1994 statute), incorrect criminal history calculation, insufficient credit/concurrency for the Florida sentence, and failure to object to Booker application.
Magistrate Judge Pitman recommended dismissal: the plea and waiver were knowing and voluntary; the Ex Post Facto and Count Three claims failed for lack of prejudice or were unrelated to plea negotiation; the CHC claim was waived; the concurrency claim was procedurally defaulted and meritless.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Enforceability of plea waiver re: §2255	Abramo: waiver not knowing/voluntary because counsel was ineffective in plea negotiations (failed to identify Ex Post Facto and Count Three defects).	Gov: waiver was knowingly made at allocution; ineffective-assistance claims must be meritorious and tied to plea process to invalidate waiver.	Waiver enforceable; allocution and plea colloquy show knowing, voluntary waiver; ineffective-assistance claims did not invalidate waiver.
Ex Post Facto challenge to using 2008 Guidelines for 1989 murder conspiracy	Abramo: counsel failed to advise that applying 2008 Guidelines increased punishment (Ex Post Facto problem).	Gov: Judge Rakoff considered the issue and stated he would have imposed the same sentence under older Guidelines; any error harmless.	No prejudice shown; sentencing judge would have imposed same sentence, so ineffective-assistance claim fails.
Count Three (receiving extortion proceeds) dated 1990 but statute effective 1994	Abramo: allocution admitted only 1990 conduct; counsel ineffective for not recognizing crime post-dated allocution, rendering plea involuntary/invalid.	Gov: disagreement on significance; even if identified pre-plea, government likely would have substituted another charge; no prejudice shown.	Claim does not invalidate waiver; no prejudice shown and unrelated to plea-negotiation deficiencies.
Credit/concurrency for prior Florida sentence (U.S.S.G. §5G1.3)	Abramo: should have received full credit / total concurrency for time served in Florida.	Gov: Abramo reserved limited right but failed to raise on direct appeal; Florida sentence was fully served so §5G1.3(b) did not apply; sentencing judge has discretion on concurrency.	Procedurally defaulted and meritless; record shows Florida term completed and Judge Rakoff permissibly awarded only partial concurrency.

Key Cases Cited

United States v. Riggi, 541 F.3d 94 (2d Cir.) (background conviction and appellate ruling on plain error)
United States v. Riggi, 649 F.3d 143 (2d Cir. 2011) (enforcing appeal waiver but noting ineffective-assistance claims tied to plea may survive)
Crawford v. Washington, 541 U.S. 36 (2004) (Confrontation Clause framework referenced for prior appellate vacatur)
Peugh v. United States, 133 S. Ct. 2072 (2013) (Ex Post Facto analysis for Guidelines changes)
Strickland v. Washington, 466 U.S. 668 (1984) (standard for ineffective assistance of counsel)
Hill v. Lockhart, 474 U.S. 52 (1985) (Strickland applied to plea process)
Blackledge v. Allison, 431 U.S. 63 (1977) (reliance on plea colloquy sworn statements)
Bousley v. United States, 523 U.S. 614 (1998) (cause and prejudice standard for procedural default)
United States v. Monzon, 359 F.3d 110 (2d Cir.) (appeal-waiver enforceability and ineffectiveness claims)