UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

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PEGUY ETIENNE, : 07 Civ. 3411 (LMM)

(99 Cr. 1073 (LMM))

Petitioner, : & 05 Cr. 353 (LMM))

- v - : MEMORANDUM AND ORDER

UNITED STATES OF AMERICA, :

Respondent. :

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McKENNA, D.J.

1.

On April 11, 2005, movant (hereinafter “Petitioner”)

pleaded guilty, pursuant to a written plea agreement, to: (a)

Counts One, Two and Three of a third superseding information

charging him with the violation of (i) 21 U.S.C. § 846, (2) 18

U.S.C. § 2113(a) & (d), and (3) 18 U.S.C. § 2113(a) & (d), and (ii)

Count One of an indictment (filed in the United States District

Court for the Eastern District of New York, and transferred to this

district pursuant to Fed. R. Crim. P. 20) charging him with the

violation of 18 U.S.C. § 1951.

The written plea agreement stipulated an offense level of

35 and a criminal history category of II, resulting in a Guidelines

sentence range of 188-235 months of imprisonment. (Gov’t Letter

Mem., July 20, 2007, Ex. A, at 3-7.) The Court accepted that

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sentence range. (Transcript, March 30, 2006, at 10.) The Court

sentenced petitioner to 150 months of imprisonment. (Id. at 17-

22.) Petitioner appealed to the Second Circuit Court of Appeals. 

His counsel filed a brief pursuant to Anders v. California, 386

U.S. 738 (1967), and, on October 16, 2006 (mandate November 6,

2006), the Court of Appeals granted the government’s motion for

summary affirmance.1

Petitioner challenges his sentence under 28 U.S.C.

§ 2255.

2.

In the written plea agreement, petitioner and the

government “agreed . . . that [petitioner] will not file a direct

appeal, nor litigate under Title 28, United States Code, Section

2255 and/or Section 2241, any sentence within or below the

Stipulated Guidelines Range of 188 to 235 months. . . .” (Gov’t

Letter Mem., July 20, 2007, Ex. A, at 9.) Petitioner as well as

his counsel signed the plea agreement. (Id. at 11.)

It is clear that the plea agreement was entered into by

petitioner knowingly and voluntarily, and with awareness of his

waiver of appeal and collateral attack. During the plea

allocution, the Court called petitioner’s attention to the waiver

of the right to challenge a sentence within or below the 188-235

 Petitioner did not file a pro se brief in support of his appeal. 1

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month range under 28 U.S.C. § 2255 (or § 2241), and he stated under

oath that he had read the plea agreement and discussed it with his

counsel and that he had not been forced to plead guilty

(Transcript, April 11, 2005, at 4, 5-6). In his papers in support

of his present petition he does not claim that his entry into the

plea agreement was anything but knowing and voluntary. In these

circumstances, his waiver is binding and will be enforced. See

Garcia-Santos v. United States, 273 F.3d 506, 507-509 (2d Cir.

2001) (per curiam).

3.

In any event, petitioner’s arguments are not persuasive

on the merits.

The first argument is that the Guidelines calculation

should have, but did not, include a 3-level reduction for the

reason that the robbery alleged in Count Three of the 99 Cr. 1073

information was not completed because the participants in the

robbery did not obtain any cash. See U.S.S.G. § 2X1.1(b) (2004). 2

The PSR, however, reports that the robbery charged in Count Three

of the 99 Cr. 1073 information involved a loss, albeit of less than

$10,000. (PSR, ¶ 32.)

 The Court, here, cites the November 1, 2004 Guidelines Manual, as 2

did Probation in calculating the Guidelines range. See Presentence

Investigation Report (“PSR”), revised July 27, 2005, ¶ 40.

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Petitioner’s second argument is that Count One of the

Eastern District indictment is duplicitous in alleging in one count

a Hobbs Act conspiracy to rob employees of multiple establishments. 

The argument fails, however, not only because “[t]he allegation in

a single count of a conspiracy to commit several crimes is not

duplicitous, for ‘The conspiracy is the crime, and that is one,

however diverse its objects[,]’” Braverman v. United States, 317

U.S. 49, 54 (1942) (quoting Frohwerk v. United States, 249 U.S.

204, 210 (1919) (other citation omitted)), but because petitioner

has not shown that the claimed duplicity prejudiced him so as to be

“impermissible duplicity.” United States v. Sturdivant, 244 F.3d

71, 75-76 & n.3 (2d Cir. 2001). (It may be added that, if the 3

count in question were duplicitous, and if petitioner’s counsel had

objected, the result would not have been dismissal, as petitioner

assumes, but an amendment of the charges to eliminate duplicity.)

Petitioner’s third argument is that Counts Two and Three

of the 99 Cr. 1073 information, alleging the violation of 18 U.S.C.

§ 2113(d) -- which enhances the penalty for the violation of 18

U.S.C. § 2113(a) or (b) where the defendant “assaults any person,

 Petitioner cites, in support of his duplicity argument, United 3

States v. Murray, 618 F.2d 892 (2d Cir. 1980). The discussion in that

case, 618 F.2d at 896-99, focusing on the issue of duplicity when two

statutes are cited in one count is not pertinent to the present case in

which Count One of the Eastern District indictment cites only one

statute, 18 U.S.C. § 1951.

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or puts in jeopardy the life of any person by the use of a

dangerous weapon or device,” 18 U.S.C. § 2113(d) -- do not properly

allege an offense because the information, in Counts Two and Three,

does not use the statutory phrase “dangerous weapon or device” but

rather the word “firearm.” The argument is not persuasive. 18

U.S.C. § 2113 does not define “dangerous weapon or device,” but

common sense suggests that a “firearm” is indeed a “dangerous

weapon or device,” and courts have used the words “firearm” (or

“gun”) as the equivalent of a “dangerous weapon” in the context of

18 U.S.C. § 2113. See United States v. Lugo Guerrero, 524 F.3d 5,

8 (1st Cir. 2008) (“firearm”), and McLaughlin v. United States, 476

U.S. 16, 17-18 (1986) (“gun”).

Petitioner also challenges the Guidelines calculation of

188-235 months of imprisonment, on two grounds. First, he disputes

the six-level enhancement as to Count Two of the information under

U.S.S.G. § 2B3.1(b)(2)(B) (use of firearm during commission of

offense) on the ground that he did not allocate to the use of a

“firearm”; in pleading guilty, however, petitioner admitted under

oath the use of a “firearm” during the offense charged in Count

Two. (Transcript, April 11, 2005, at 15-16.) 

Second, he objects to the two-level enhancement as to

Counts Two and Three under U.S.S.G. § 2B3.1(b)(3)(A) (victim

sustained bodily injury during commission of offense). The Court

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cannot find in the record any finding supporting the last mentioned 

enhancement. The motion is, in s respect, neverthe ss denied, 

but only for reasons set in Section 2 of this Memorandum 

and Order, above. 

Pet ioner argues that received inef assistance 

of counsel with respect to the rst two of the matters discussed 

above, claim that no cash was obtained in the robbery 

charged in Count Three of 99 Civ. 1073 in rmation and the 

claimed dupli Y of the Eastern strict indictment. He has not, 

however, shown that counsel was in any way ive in such 

matters. 

* * * 

The motion is and the petition is dismissed. 

SO ORDERED. 

Dated: March 17, 2011 

Lawrence M. McKenna 

U.S.D.J. 

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