United States v. Roman
5:12-cr-00093
W.D. La.Feb 1, 2018Background
- Alcides Roman pled guilty to one count of attempt and conspiracy to commit wire fraud; intended loss attributed was $340,000 and restitution was ordered for that amount.
- PSR (using 2012 Guidelines) set base offense level at 7, added 12 levels for loss, and granted a 3-level acceptance reduction for a total offense level of 16; criminal history category I.
- Judge Tom Stagg imposed an upward variance/ departure to an offense level of 20 and sentenced Roman to 41 months’ imprisonment; the Fifth Circuit affirmed on direct appeal.
- Roman filed a § 2255 motion claiming ineffective assistance of counsel at sentencing for failure to investigate his prior criminal/civil history and victim statements and for inadequate advice on allocution.
- The district court held an abbreviated review of the record, found counsel’s performance not constitutionally deficient, found no Strickland prejudice, and denied the § 2255 motion and COA.
Issues
| Issue | Roman's Argument | Government/Court's Argument | Held |
|---|---|---|---|
| Whether counsel was ineffective for failing to investigate Roman's prior civil/criminal litigation and business dealings | Counsel failed to investigate records which would have shown many matters were civil/minor and would have prevented upward variance | Roman knew the facts; PSR and allocution already informed the court; Roman did not specify what additional investigation would have shown or how it would change the sentence | Denied — no deficient performance shown and no prejudice proven |
| Whether the district court impermissibly relied on arrests not resulting in convictions | Roman argued arrests improperly influenced the court's sentence | Court clarified it could not consider arrests as convictions and Fifth Circuit found no clear error in mere reference to arrests | Denied — references were not a basis for reversible error |
| Whether the victim-impact letter (Jason Bell) was given undue weight and required investigation | Roman claimed counsel should have investigated Bell's allegations before sentencing | Bell's letter was consistent with PSR and Roman's own admissions; counsel had no duty to prove Bell's assertions and investigation would be futile | Denied — letter properly considered and did not render counsel ineffective |
| Whether counsel failed to advise Roman on allocution causing loss of acceptance-of-responsibility credit | Roman asserts poor advice caused him to appear to deflect responsibility and lose mitigating effect | Court observed Roman was afforded allocution, he initially minimized responsibility but then accepted responsibility after judge’s comment | Denied — allocution occurred, and no showing that better advice would have reduced sentence |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (attorney performance and prejudice test for ineffective assistance)
- United States v. Booker, 543 U.S. 220 (Sentencing Guidelines are advisory)
- Gall v. United States, 552 U.S. 38 (district court must make individualized § 3553(a) assessment)
- Lafler v. Cooper, 566 U.S. 156 (ineffective assistance at sentencing and prejudice analysis concerning additional jail time)
- Glover v. United States, 531 U.S. 198 (any additional jail time can constitute prejudice under Strickland)
- Bousley v. United States, 523 U.S. 614 (habeas review is extraordinary and limited)
- Frady v. United States, 456 U.S. 152 (habeas is not a substitute for direct appeal)
- Green v. United States, 882 F.2d 999 (no evidentiary hearing required when claims are contradicted by the record)
- Shaid v. United States, 937 F.2d 228 (presumption of finality after direct appeal)