2002 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

9-27-2002

USA v. Vanasse

Precedential or Non-Precedential: Non-Precedential

Docket No. 01-3717

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Recommended Citation

"USA v. Vanasse" (2002). 2002 Decisions. Paper 620.

http://digitalcommons.law.villanova.edu/thirdcircuit_2002/620
 NOT PRECEDENTI

 UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT 

 

 NO. 01-3717 

 

 UNITED STATES OF AMERICA 

 v. 

 MICHAEL VANASSE, 

 Appellant 

 

 

 On Appeal from the United States District Court 

 for the Eastern District of Pennsylvania 

 (D.C. Crim. No. 91-cr-00063-19) 

 District Judge: Hon. Bruce W. Kauffman 

 

 Submitted Under Third Circuit LAR 34.1(a) 

 September 9, 2002 

 Before: SLOVITER, RENDELL and FUENTES, Circuit Judges 

 (Filed September 27, 2002 ) 

 

 OPINION OF THE COURT SLOVITER, Circuit Judge. 

 Michael Vanasse appeals the judgment of conviction and sentence. After 

indictment in the United States District Court for the Eastern District of Pennsylvania, 

Vanasse pleaded guilty to one count of conspiracy to distribute and to possess with intent 

to distribute more than five kilograms of cocaine, contrary to 21 U.S.C. 841(a)(1), in 

violation of 21 U.S.C. 846. The District Court sentenced Vanasse to 300 months. In 

this appeal, Vanasse challenges the District Court’s conclusion that Vanasse was 

competent to stand trial, its denial of his motion to withdraw his guilty plea pursuant to 

Rule 32(e) of the Federal Rules of Criminal Procedure, its application of a two level 

increase for obstruction of justice under U.S.S.G. 3C1.1, its interpretation and 

application of Apprendi v. New Jersey, its calculation of drug quantity, and its denial of 

his request for a hearing on the government’s refusal to file a motion for a downward 

departure. We will affirm. 

 The District Court had jurisdiction under 18 U.S.C. 3231. This court has 

jurisdiction pursuant to 28 U.S.C. 1291 and 18 U.S.C. 3742. 

 I. 

 Vanasse first argues that the evidence presented at the hearing did not support the 

District Court’s determination that he was competent to stand trial. Vanasse concedes 

that the District Court’s determination of his competence "may not be set aside unless it 

is clearly erroneous." Gov’t of V.I. v. Williams, 892 F.2d 305, 312 (3d Cir. 1989). A 

district court does not commit clear error unless its factual findings are "’completely 

devoid of a credible evidentiary basis or bear[] no rational relationship to the supporting 

data.’" United States v. Haut, 107 F.3d 213, 218 (3d Cir. 1997) (quoting American 

Home Prods. Corp. v. Barr Labs., Inc., 834 F.2d 368, 370-71 (3d Cir. 1987)). As we 
have previously held, "[i]n order to be competent to stand trial, a defendant must be able 

to consult with counsel with a reasonable degree of rational understanding, and he must 

have a rational understanding of the nature and object of the proceedings against him." 

McFadden v. United States, 814 F.2d 144, 146 (3d Cir. 1987). 

 Vanasse suffered a head injury in an automobile accident in 1991, subsequent to 

the events for which he was convicted. After ordering a psychiatric examination, the 

District Court held a competency hearing. At the hearing, the government presented the 

written report and testimony of Dr. Edward Guy, a forensic psychiatrist and the director 

of psychiatric services for the Philadelphia prison system. Dr. Guy reported: 

 Mr. Vanasse has a clear understanding of his legal situation. 

 He was able to discuss this in detail with me and knows the 

 roles of the various participants in a criminal trial situation. 

 He was able to cooperate with me during my evaluation and I 

 feel that he could cooperate with an attorney in the 

 preparation of a defense. 

App. at 332. 

 Vanasse argues that the District Court erred in its conclusion that he was 

competent, and points to Dr. Guy’s concern that Vanasse’s memory was impaired "for 

the period of time before and after his head injury," App. at 332, which included the time 

period the conspiracy was in effect. Vanasse also argues that his ability to recall events 

during the trial was impaired. 

 Vanesse has pointed to no authority suggesting the test for competency requires a 

good memory. The test only requires a memory sufficient to permit a reasonable degree 

of rational understanding of the proceedings. Dr. Guy testified that Vanasse understood 

his legal situation. The District Court did not clearly err. 

 II. 

 Vanasse next argues that the District Court abused its discretion in refusing to 

permit him to withdraw his guilty plea. Under Rule 32(e) of the Federal Rules of 

Criminal Procedure, a district court may permit a defendant to withdraw his or her guilty 

plea before the sentence is imposed, "if the defendant shows any fair and just reason." 

Fed. R. Crim. P. 32(e). The defendant bears the burden of demonstrating such a "fair 

and just reason." United States v. Isaac, 141 F.3d 477, 485 (3d Cir. 1998). Three factors 

are relevant in evaluating whether a defendant has demonstrated a "fair and just reason:" 

"(1) whether the defendant asserts her innocence; (2) whether the government would be 

prejudiced by the withdrawal; and (3) the strength of the defendant’s reason to withdraw 

the plea." United States v. Brown, 250 F.3d 811, 815 (3d Cir. 2001). We review the 

District Court’s decision not to grant a withdrawal of a guilty plea for abuse of 

discretion. Isaac, 141 F.3d at 485. 

 Vanasse contends that he presented strong reasons for withdrawing his plea, 

namely that his court-appointed attorney provided him ineffective assistance. Under 

Strickland v. Washington, 466 U.S. 668 (1984), Vanasse must demonstrate that (1) 

"counsel’s representation fell below an objective standard of reasonableness," id. at 688, 

and (2) "there is a reasonable probability that, but for counsel’s unprofessional errors, the 

result of the proceeding would have been different," id. at 694. Because the 

constitutional effectiveness of counsel is a mixed question of law and fact, "we may 

freely review the district court’s conclusions." Lewis v. Mazurkiewicz, 915 F.2d 106, 

110 (3d Cir. 1990). 

 Vanasse asserts his counsel was ineffective for two reasons. First, he suggests 

counsel failed to present adequate evidence at the competency hearing. Vanasse urges 

that his case is similar to Hull v. Freeman, 932 F.2d 159 (3d Cir. 1991), in which we 

determined a defendant had satisfied the first prong of Strickland where his attorney 

"neither cross-examine[ed] the Commonwealth’s sole witness nor present[ed] any 

rebuttal evidence" in a state competency hearing. Hull, 932 F.2d at 163. We noted that 

"at the time of the competency hearing, Hull’s counsel was well aware that two other . . . 

psychiatrists . . . recently had diagnosed Hull to be incompetent." Id. at 168. 

 Hull is not applicable. Vanasse’s counsel engaged in an extensive crossexamination of Dr. Guy. App. at 249-80. She introduced into evidence two medical 

reports, and Vanesse does not suggest there were any other diagnoses she was aware of 

but failed to bring forward. As we noted in Hull, "In assessing an attorney’s 
performance, courts must be ’highly deferential,’ and ’must indulge a strong presumption 

that counsel’s conduct falls within the wide range of reasonable professional assistance . . 

. .’" Id. at 167 (quoting United States v. Gray, 878 F.2d 702, 710 (3d Cir. 1989) (quoting 

Strickland, 466 U.S. at 689)). 

 Vanasse also argues that counsel was ineffective in negotiating his guilty plea 

agreement. The plea agreement provided that if the government determined Vanasse had 

substantially assisted in the investigation or prosecution of another person, it would make 

a motion for a downward departure under U.S.S.G. 5K1.1 and 18 U.S.C. 3553(e). 

According to Vanasse, counsel should have made a proffer to the government of the 

information that might be of assistance so that counsel could ascertain whether Vanasse’s 

cooperation would likely result in a downward departure. As a corollary argument, 

Vanasse urges that, based on his mental deficiencies, "[his] counsel had no reasonable 

basis for concluding that his cooperation would result in the filing of a substantial 

assistance motion." Br. of Appellant at 15. 

 At his plea hearing, Vanasse acknowledged that he understood the meaning of the 

plea agreement. He admitted that he had played a role in initiating the conspiracy, and 

that he "was going to buy it once they got the cocaine home." App. at 223. Vanasse 

agreed that he understood that the court need not accept any recommendation or request 

of the government. His attorney stated that "we had extensive discussions about the 

terms of the plea agreement and that the 5(k)(1) would not be[] guaranteed by the 

government . . . . [I]t [is] my belief that . . . Mr. Vanasse . . . will be eligible for a 

5(k)(1), but I cannot tell him that now." App. at 227. She also observed that "since the 

competency hearing, I have had numerous conversations with Mr. Vanasse, discussed the 

evidence with him, and I am convinced at this point, although he does have memory loss, 

. . . that he is competent and does understand what’s going on." App. at 231. The terms 

of the plea agreement appear to have been reasonable at the time counsel negotiated 

them. 

 The government points to considerable evidence that it was Vanasse’s own 

conduct after he pleaded guilty that undermined the benefits he would have received 

under the agreement. For example, Vanasse refused to answer and evaded answering 

questions in later proffers. After withdrawing, Vanasse’s counsel testified that Vanasse’s 

refusal to testify appeared to have been motivated by a desire to protect individuals who 

were the subject of the government’s investigation. She noted that Vanasse discussed his 

statements to law enforcement agents with some of these suspects. Based on these facts, 

we cannot conclude that counsel’s representation fell below an objective standard of 

reasonableness. 

 We agree with the District Court that counsel did not provide strong reasons for 

withdrawing his guilty plea. Although Vanasse asserted his innocence, he does not 

dispute the District Court’s conclusion that the government would have been prejudiced 

by the withdrawal. The District Court did not abuse its discretion in denying Vanasse’s 

motion to withdraw his guilty plea. 

 III. 

 Vanasse next asserts that the District Court erred by imposing a two-level offense 

enhancement under U.S.S.G. 3C1.1 for obstruction of justice based on threatening 

statements Vanasse made to and regarding the prosecutor. Under U.S.S.G. 3C1.1, a 

two level enhancement is appropriate "[i]f the defendant willfully obstructed or impeded, 

or attempted to obstruct or impede, the administration of justice during the investigation, 

prosecution, or sentencing of the instant offense." U.S.S.G. 3C1.1 (1990). The 

commentary provides a "non-exhaustive list of examples of the types of conduct to 

which [ 3C1.1] applies" that includes "threatening, intimidating, or otherwise 

unlawfully influencing a co-defendant, witness, or juror, directly or indirectly, or 

attempting to do so." U.S.S.G. 3C1.1 cmt. n.3(a). We review "a district court’s 

finding of fact supporting an upward adjustment to a sentencing level for clear error." 

United States v. Bethancourt, 65 F.3d 1074, 1080 (3d Cir. 1995). 

 The government presented a number of letters Vanasse sent to the prosecutor 

which discuss the prosecutor’s minor children and the likelihood of their future 

involvement in drugs. The District Court found that Vanasse had attempted to intimidate 

the prosecutor through his letters, and referencing one of the letters, stated: 

 [A]t the third paragraph, "I do not think you are a bitch and 

 want your legs broken. I think you are a dumb" and then 
 there’s an obscenity "and your kids’ habit will pay you back 

 better than broken legs. So stop lying and making things up. 

 Remember, you make people swear to God to tell the truth 

 when they are lying. May God have mercy on your kids." 

 

 Those references to kids are outrageous. And those kinds of 

 letters . . . are unacceptable . . . I think the whole purpose of it 

 was to intimidate the Assistant United States Attorney and 

 clearly as part of a pattern constitute obstruction of justice. 

App. at 605-06. We certainly cannot hold that the District Court’s factual findings are 

"completely devoid of a credible evidentiary basis or bear[] no rational relationship to the 

supporting data." Haut, 107 F.3d at 218. 

 IV. 

 Vanasse next argues that it was error for the District Court to have sentenced him 

to life imprisonment rather than twenty years, which he claims was required under 

Apprendi v. New Jersey, 530 U.S. 466 (2000). Vanasse was indicted for conspiracy to 

possess with intent to distribute more than five kilograms of cocaine, which carries a 

maximum sentence of life imprisonment. 21 U.S.C. 841(b)(1)(A). 

 At the commencement of the plea hearing, the government read into the record 

Vanasse’s stipulation that: 

 [T]he possession with intent to distribute in excess of 1300 

 kilograms of cocaine was reasonably foreseeable to the 

 defendant and was within the scope of the criminal activity 

 that he jointly undertook with other members of the 

 conspiracy; and that the defendant’s sentencing guideline 

 range should be calculated on the basis of that quantity in 

 accordance with section 1(b)(1.3) of the sentencing 

 guidelines. 

App. at 216. 

 During the plea hearing, Vanasse disputed a contention by the government that he 

intended to purchase and distribute the entire 1,300 kilograms of the cocaine shipment, 

apparently repudiating the stipulation that the full planeload was attributable to him. He 

contends that the jury should have resolved the quantity and, in the absence of a jury 

finding, he should have been sentenced under 21 U.S.C. 841(b)(1)(C), to which he pled 

guilty, which carries a statutory maximum of twenty years. Although Vanasse stated at 

the hearing that he did not intend to purchase the entire shipment of cocaine, he is 

responsible for it. 

 Vanasse was both a financial backer of the conspiracy and also intended to 

purchase cocaine from the cocaine shipment he had financed. We have stated, "[t]he 

leading case of Pinkerton v. United States, 328 U.S. 640 (1946), established that a 

defendant is responsible for a co-conspirator’s acts when those acts are (1) committed in 

furtherance of the conspiracy and (2) reasonably foreseeable by the defendant as a 

necessary or natural consequence of the unlawful agreement." United States v. Collado, 

975 F.2d 985, 993 n.7 (3d Cir. 1992). Vanasse’s attorney clarified his position by stating 

"people . . . were using Mr. Vanasse’s name and his guarantee to sell all of [the cocaine] 

basically as a sales pitch. . . . But he still, based on the facts, guaranteed a significant 

amount to sell." App. at 225. As the planeload was 1,300 kilograms of cocaine, and a 

conspiracy to distribute in excess of five kilograms of cocaine carries a sentence of life 

imprisonment, as to which Vanasse received ample notification, his assertion that he did 

not intend to distribute more than five kilograms of cocaine is of no moment since he did 

plead guilty to conspiracy to possess with intent to distribute more than five kilograms of 

cocaine. 

 Under Apprendi v. New Jersey, factors mentioned in a statute that result in an 

enhancement beyond the prescribed statutory maximum must be proved beyond a 

reasonable doubt. 530 U.S. at 490. A guilty plea is the functional equivalent of a jury 

conviction. See United States v. Broce, 488 U.S. 563, 569 (1989). Vanasse pleaded 

guilty to 21 U.S.C. 841(b)(1)(A) and his sentence of 300 months is not in excess of the 

maximum applicable sentence of life imprisonment. 
 V. 

 Vanasse argues the District Court erred in determining the amount of cocaine that 

should be attributable to him in relationship to the conspiracy under U.S.S.G. 2D1.1 

and 1B1.3. As discussed above, as part of his plea agreement Vanasse stipulated that he 

was responsible for 1,300 kilograms of cocaine, and a guilty plea is the functional 

equivalent of a jury conviction, Broce, 488 U.S. at 569. The District Court did not err. 

 VI. 

 Finally, Vanasse argues that the District Court erred in declining to hold a hearing 

on whether the government acted in good faith in refusing to file a motion for a 

downward departure as provided for in the plea agreement. Vanasse relies on this court’s 

decision in United States v. Isaac, 141 F.3d 477 (3d Cir. 1988). In Isaac, this court held 

that a district court should "call upon the government to explicate its reasoning" for 

refusing to file a substantial assistance motion, "and assuming that a facially plausible 

reason is advanced," the defendant should be given "an opportunity to produce evidence 

giving reason to question the justification advanced" by the government. Id. at 484. 

Only if the defendant produces such evidence is the district court "required to hold a 

hearing and make a finding as to whether the government has acted in good faith." Id. 

 The government explained that its decision not to file a motion for a sentencing 

departure was based on its belief that Vanasse had provided false testimony and on 

Vanasse’s failure to earn the departure by aiding the government in the prosecution of 

others. Vanasse failed to present evidence that he provided any substantial assistance to 

the government warranting a downward departure. 

 VII. 

 For the foregoing reasons, we will affirm the judgment of the District Court. 

______________________ 

TO THE CLERK: 

 Please file the foregoing opinion. 

 _______________________________ 

 Circuit Judge UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT 

 

 NO. 01-3717 

 

 UNITED STATES OF AMERICA 

 v. 

 MICHAEL VANASSE, 

 Appellant 

 

 

 On Appeal from the United States District Court 

 for the Eastern District of Pennsylvania 

 (D.C. Crim. No. 91-cr-00063-19) 

 District Judge: Hon. Bruce W. Kauffman 

 

 Before: SLOVITER, RENDELL and FUENTES, Circuit Judges 

 

 JUDGMENT 
 This cause came on to be heard on the record from the United States District 

Court for the Eastern District of Pennsylvania and was submitted pursuant to Third 

Circuit LAR 34.1(a) on September 9, 2002. 

 On consideration whereof, it is now here ORDERED AND ADJUDGED by this 

Court that the judgment of conviction and sentence of the said District Court entered 

October 3, 2001, be, and the same is, hereby affirmed. All of the above in accordance with th

 ATTEST: 

 

 Acting Clerk 

Dated:___September 27, 2002_______________