About Boris Goldberg's sentence:
http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=search&case=/data2/circs/2nd/952216.htmlUNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
S U M M A R Y O R D E R
THIS SUMMARY ORDER WILL NOT BE PUBLISHED IN THE FEDERAL REPORTER AND MAY NOT BE CITED AS PRECEDENTIAL AUTHORITY TO THIS OR ANY OTHER COURT, BUT MAY BE CALLED TO THE ATTENTION OF THIS OR ANY OTHER COURT IN A SUBSEQUENT STAGE OF THIS CASE, IN A RELATED CASE, OR IN ANY CASE FOR PURPOSES OF COLLATERAL ESTOPPEL OR RES JUDICATA.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the United States Courthouse, Foley Square, in the City of New York, on the 10th day of January, one thousand nine hundred and ninety-six.
Present: HONORABLE J. EDWARD LUMBARD,
HONORABLE RALPH K. WINTER,
HONORABLE JOHN M. WALKER, JR.,
Circuit Judges .
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BORIS GOLDBERG,
Plaintiff-Appellant ,
- v. - No. 95-2216
UNITED STATES OF AMERICA,
Defendant-Appellee .
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Appearing for Appellant: Boris Goldberg, pro se .
Appearing for Appellee: Emily Berger and William Gurin, Assistant United States Attorneys, E.D.N.Y.
Appeal from the United States District Court for the Eastern District of New York (Nickerson, Judge ).
This cause came on to be heard on the transcript of record from the United States District Court for the Eastern District of New York and was submitted.
ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the judgment of the District Court is hereby affirmed.
Boris Goldberg, pro se , appeals from Judge Nickerson's order denying his motion to vacate his sentence and set aside his guilty plea pursuant to 28 U.S.C. § 2255. We affirm.
On January 9, 1992, Goldberg pleaded guilty to one count of conspiring to violate the Racketeer Influenced and Corrupt Organizations Act in violation of 18 U.S.C. § 1962(c). As part of the plea agreement, the government agreed that the criminal activities encompassed in the plea would be limited to events occurring prior to November 1987 and thus the United States Sentencing Guidelines would not apply. Judge Nickerson sentenced Goldberg to a prison term of 15 years, a fine of $250,000, and a special assessment of $50.00.
On June 8, 1994, Goldberg filed a petition under 28 U.S.C. § 2255 alleging that the district court erred in accepting his guilty plea because the allocution was insufficient and the court did not fully appraise Goldberg of the maximum sentence he faced. He also raised a challenge to his sentence based on ineffective assistance of counsel. The district court dismissed the petition.
On appeal, Goldberg contends that he received ineffective assistance of counsel at his sentencing proceeding. He further argues that the district court erred in failing to determine whether he could afford to pay the fine imposed by the court; in not ordering an evidentiary hearing to consider whether he could pay the fine or whether a new presentence report (PSR) was warranted; and in denying his motion for a new presentence investigative interview and PSR. We reject each claim.
Goldberg is unable to demonstrate that his attorney's performance fell below an objective standard of reasonableness as required by Strickland v. Washington , 466 U.S. 668 (1984). His argument that counsel should have mounted a statute of limitations defense is without merit because the indictment charged Goldberg with a predicate act of mail fraud that clearly occurred within five years of indictment. See United States v. Persico , 832 F.2d 705, 714 (2d Cir. 1987)(only one of the predicate acts charged needs to have occurred within five years of the indictment), cert. denied , 486 U.S. 1022 (1988).
Goldberg's claim that counsel promised him a sentence of no more than seven years is also baseless because he stated during the plea colloquy that he had not been promised anything with regard to his guilty plea. See United States v. Gonzalez , 970 F.2d 1095, 1101 (2d Cir. 1992)(a defendant's statements during plea colloquy should be regarded as conclusive in the absence of a believable reason for justifying a departure from the apparent truth of those statements). Moreover, even assuming that his attorney provided a mistaken estimate of Goldberg's likely sentence, this is insufficient to support a claim for ineffective assistance of counsel. Cf. United States v. Sweeney , 878 F.2d 68, 69-70 (2d Cir. 1989)(lawyer's "erroneous estimate" of guideline sentencing range not ineffective assistance of counsel).
Appellant's argument that his attorney was informed of alleged inaccuracies in the PSR and nevertheless failed to challenge them is also meritless. Goldberg's attorney at the presentence hearing challenged the credibility of the hearsay witnesses at the presentence hearing who alleged Goldberg's involvement in various criminal activities in order to rebut the PSR's contention that Goldberg was a "leader" of the enterprise. The attorney also argued the unreliability of those witnesses on direct appeal. Moreover, other than disputing the PSR's characterization of him as a "leader" of the criminal enterprise, Goldberg did not articulate any specific flaws in the PSR until this appeal. Thus, his counsel responded to the PSR in an appropriate fashion. Finally, Goldberg praised his counsel's performance in a letter to Judge Nickerson requesting that the same counsel be assigned for sentencing. Thus, his ineffective assistance of counsel claim is wholly undermined by the record.
Because Goldberg did not raise in his direct appeal or in his original Section 2255 motion before the district court his claim that the sentencing court failed to determine his ability to pay the fine, he is procedurally barred from raising it here. See Campino v. United States , 968 F.2d 187, 190 (2d Cir. 1992). Moreover, his claim lacks foundation in law since, under the pre-Guidelines regime, a fine may be imposed regardless of a defendant's ability to pay. See United States v. Torres , 901 F.2d 205, 247 (2d Cir.), cert. denied , 498 U.S. 906 (1990) (indigency does not bar a substantial fine).
The district court did not abuse its discretion in failing to hold an evidentiary hearing on the questions of whether a new PSR was required or whether the fine imposed was too harsh because Goldberg did not raise either of these issues in his petition. Similarly, because Goldberg's ineffective assistance claim is meritless, Judge Nickerson did not err in refusing to hold a hearing on this question.
Although Goldberg requests a new PSR, he failed to designate any inaccuracies in the PSR in his district court petition, and he is thus barred from making this claim now. See Sales v. Harris , 675 F.2d 532, 540 (2d Cir.), cert. denied , 459 U.S. 876 (1982) (appellate court cannot consider claims not raised in habeas petition in district court); cf. United States v. Brody , 808 F.2d 944, 947 (2d Cir. 1986) (issue not raised at sentencing or in Rule 35 motion is waived on appeal).
We therefore affirm.
He is already out if there were no other convictions, does anybody know if he is still active in the USA ?
