UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

Jerome Griffin

v. Civil No. 06-486-JD

Opinion No. 2007 DNH 008

United States of America

O R D E R

The petitioner filed a motion pursuant to 28 U.S.C. § 2255

on December 26, 2006.

Background

On September 25, 2002, the petitioner waived indictment and

pled guilty to a second superceding information charging him with

conspiracy to distribute and to possess with intent to distribute

cocaine and cocaine base crack (count 1), and with distribution

of crack cocaine (counts 2, 3 and 9). United States v. Jerome

Griffin, 02-CR-22-JD. The petitioner’s plea was entered pursuant

to a written plea agreement between him and the government dated

September 25, 2002. As part of that agreement, the government

and petitioner entered into the following binding stipulation

pursuant to Fed. R. Crim. P. 11(e)(1)(C):

5-1. Stipulations Pursuant to Rule 11(e)(1)(C)

The Government and defendant have reached

the following stipulation pursuant to Rule 11(e)

(1)(C), Federal Rules of Criminal Procedure:

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a. The parties agree that the Government’s

evidence will establish that the defendant’s base

offense level (U.S.S.G. 2D1.1) should be premised

on the distribution of in excess of 1.5 kilograms

of cocaine base (“crack”) (Base Offense Level

38 (U.S.S.G. 2D1.1(c)(1) (1.5 KG or more of 

Cocaine Base)).

The above stipulation is intended by the

parties to be “binding” under Rule 11(e)(1)(C).

By using the word “binding” under Rule 11(e)(1)

(C), the parties mean that if the Court cannot

or will not accept the stipulation, and finds

that the drug amount is greater or more serious

than stipulated, the defendant will be allowed

the choice of withdrawing his guilty plea and

demanding a trial on the original (or other)

charge(s). The defendant will not be allowed to 

withdraw his plea for any other reason. 

Plea Agreement, document #70, pp. 9-10.

During the plea colloquy, the Court explained the binding

stipulation to the petitioner and pointed out specifically that

offense level 38 with a Criminal History Category of I would

result in a guideline range of approximately 19.5 years to 24.1

years, “well in excess of the mandatory minimum.” Transcript of

Plea, September 25, 2002, document #97, pp. 10-11. At that time,

the parties and the court were laboring under the assumption that

10 years was the mandatory minimum.

When the sentencing hearing was held on December 20, 2002,

the issue of a 10 versus 20-year mandatory minimum was raised.

The court gave the petitioner the opportunity to withdraw his

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plea if the 20-year mandatory minimum was applicable and granted

a continuance so the parties could try to resolve the issue.

On January 13, 2003, the petitioner filed an assented to

motion to withdraw his guilty plea (document #90). At a hearing

held on that date, the government indicated that it would be

seeking a 10-year rather than a 20-year mandatory minimum

sentence. Defense counsel wanted more time to review the matter

with his client and to decide whether to go to trial or proceed

with sentencing.

On February 5, 2003, the matter was scheduled for sentencing

again. The court was informed that the petitioner decided to

withdraw his motion to withdraw his guilty plea and to proceed

with sentencing. The following colloquy took place at that

hearing:

BEFORE THE COURT

THE COURT: The Court notes in the file, Mr.

Wiberg, that the defendant has decided to withdraw his 

motion to withdraw his guilty plea. Is that correct?

MR. WIBERG: That’s correct, your Honor.

THE COURT: And you have reviewed that matter

with the defendant?

MR. WIBERG: Entirely, your Honor.

THE COURT: And he has assessed and you have

assessed with him the risks and the benefits of either 

proceeding with a motion or withdrawing it?

MR. WIBERG: Yes, Judge, and the withdrawal

is mostly based on the fact that the government is no 

longer talking about the 20-year mandatory minimum.

THE COURT: All right, Mr. Griffin, then the

Court understands that you’ve considered this matter 

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and have decided to proceed based on your guilty plea. 

Is that correct?

THE DEFENDANT: Yes, Judge.

Transcript, Sentencing Hearing, February 5, 2003, p.2.

What is also significant is that during the sentencing

hearing that followed, the quantity of drugs attributable to the

petitioner was specifically discussed.

THE COURT: All right. The Court has before it

a presentence investigation report and two addenda. 

Have you had a chance to review those with your client,

Mr. Wiberg?

MR. WIBERG: Yes, I have, your Honor.

THE COURT: Any exceptions or objections?

MR. WIBERG: No. The only minor issue was the issue

raised in I believe paragraph 26, and it’s really kind 

of a distinction without a difference because when Mr.

Griffin first saw that Nathaniel Ceasar was claiming 60

ounces of crack cocaine per month, he thought that that

was somewhat – well, he thought it was greatly inflated

from his own personal knowledge. However, after 

looking at the situation and discussing what Mr.

Griffin actually knew of personally as being sold 

either by himself or in transactions of which he was 

aware, the amount that was involved still comes above 

the 1.5 kilograms that establishes the base offense 

level of 38 which we’re talking about to start out. So

it’s really a distinction without a difference.

His take when he first saw it was that Mr. Ceasar

was attempting to inflate the amount involved because

he expected to get a benefit back on the understanding

that the government would be better impressed for the

purposes of the 5K1.1 motion with a debriefing, then

inflated the amounts. He’s got no question at all that

significant quantities of cocaine was distributed with

his knowledge and that it is in excess of the 1.5

kilograms necessary to establish the base offense

level.

Other than that, Judge, no problem with the 

report.

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THE COURT: All right. The Court accepts the

factual findings and guideline applications contained

in the Presentence Investigation Report. That results

in a total offense level of 35, a criminal history

category of three, yielding a guideline range of 210

to 262 months.

Does the government have a recommendation within

the range?

The Presentence Investigation Report (“PIR”) established the

base offense level at 38 which was consistent with the parties’

plea agreement. That level was reduced by 3 levels making the

total offense level 35. At criminal history category III, the

guideline range was 210 to 262 months. The court imposed a

prison sentence of 210 months which was at the bottom of the

guideline range.

On August 8, 2003, the petitioner filed a motion pursuant to

28 U.S.C. § 2255 claiming that his counsel failed to file an

appeal on his behalf. Following an evidentiary hearing on

November 12, 2003, at which the petitioner was represented by

Federal Defender Bjorn Lange, the court vacated the sentence

imposed on February 5, 2003, and reimposed it, effective February

5, 2003, to enable the petitioner to pursue an appeal.

The petitioner appealed and on June 16, 2005, the appeals

court remanded the case for resentencing under Booker. 

Resentencing was held on October 5, 2005. The petitioner was

again represented by Federal Defender Lange. There was no

objection by defense counsel to the PIR. The base offense level

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was 38. Taking into account acceptance of responsibility and

criminal history category III, the advisory guideline range was

210 to 262 months. Petitioner’s counsel made a very able Booker

argument for a sentence of 120 months, the mandatory minimum

under the law. The government recommended a sentence of 210

months. The court imposed a sentence of 198 months. The

petitioner appealed and the sentence was upheld.

Present Motion

The petitioner claims that at his resentencing on October 5,

2005, he asked his counsel to object to the statement of coconspirator, Nathaniel Caesar, given to the authorities after his

arrest, concerning the amount of crack cocaine he had sold. 

Counsel allegedly said nothing could be done about it. No

objection was lodged at the resentencing. The court again

accepted the factual findings and guideline applications

contained in the PIR. Petitioner claims that counsel’s failure to

object meant that the “aggravating drug quantity increased my

sentencing guidelines exposure.” He also claims Caesar’s

statements were hearsay and given after the conspiracy had ended

and therefore should not be relied on.

The petitioner overlooks several important undisputed

historical facts about his case. First, in his written plea

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agreement, he entered into a binding stipulation with the

government concerning the quantity of drugs and the base offense

level (38) that would be applicable to him, and the court

specifically reviewed this with him during the plea colloquy. 

The PIR was consistent with the binding stipulation and the court

accepted that stipulation when it accepted the guideline

calculations in the PIR. Secondly, the defendant pled guilty to

Count I which alleged a conspiracy to distribute and to possess

with intent to distribute in excess of 50 grams of cocaine base

crack and in excess of five kilograms of cocaine hydrochloride. 

At the plea colloquy the petitioner accepted the government’s

offer of proof as to the factual basis for the elements of the

offense. And thirdly, when the petitioner was sentenced the

first time on February 5, 2003, his counsel mentioned that the

petitioner was concerned about whether Nathaniel Caesar was

inflating the drug quantities for purposes of a 5K.1 motion, but

in the end the petitioner did not question that significant

quantities of cocaine were distributed and that they were in

excess of the 1.5 kilograms needed to establish the base offense

level of 38.

The bottom line is that the petitioner agreed to the

quantity of drugs for which he was to be held responsible and to

the base offense level of 38. His advisory guideline range was

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calculated based on what he agreed to, and Nathaniel Caesar’s

statements did not impact that calculation in any way. By the

petitioner’s own admissions large quantities of drugs were

involved and this was taken into consideration in imposing

sentence, a sentence that was below the advisory guideline range

for reasons stated by the court.

The petitioner’s claims of ineffective assistance of counsel

are without legal or factual merit.

Petition dismissed. 

SO ORDERED.

____________________________

Joseph A. DiClerico, Jr.

United States District Judge

January 24, 2007

cc: Jerome Griffin, pro se 

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