UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

Ugochukwu Ossai

v. Civil No. 08-cv-436-JD

Opinion No. 2009 DNH 021

United States of America

O R D E R

Ugochukwu Ossai was convicted under the Hobbs Act, 18 U.S.C.

§ 1951(a), of committing robbery and conspiring to commit

robbery, and he was sentenced to 100 months of incarceration. 

His conviction and sentence were affirmed on appeal. United

States v. Ossai, 485 F.3d 25 (1st Cir. 2007). Ossai, who is

proceeding pro se, moves for relief from his conviction and

sentence under 28 U.S.C. § 2255, on the grounds of ineffective

assistance of counsel and sentencing disparity.

Background

Ossai’s girlfriend, Chanrathana Khem, worked at a Dunkin’

Donuts in Bedford, New Hampshire. On December 29, 2004, at about

6:00 p.m, Ossai and Khem were parked in the Dunkin’ Donuts

parking lot, while two other employees, Justin Cassidy and John

Chick, were working in the store. Cassidy went out to the

parking lot to talk with Ossai and Khem. Ossai told Cassidy he

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was going to rob the store later that night, showed Cassidy a

gun, and asked Cassidy if he wanted to participate. Cassidy went

back to the store.

At 7:15 p.m. the same evening, Ossai, wearing a ski mask,

entered the Dunkin’ Donuts through a side door. He ordered John

Chick to lie down on the floor, and when Chick knelt instead, he

held a gun to Chick’s neck, stating that he did not want to hurt

him. Ossai handed Cassidy a pillowcase, and Cassidy emptied

money from the cash register into it. Ossai left.

When the police arrived, Chick told them that he recognized

Ossai’s voice and thought he was the robber. No videotape was

made of the robbery by the surveillance camera. Within an hour

of the robbery, police stopped Ossai, and he was arrested.

Ossai was represented by the Assistant Federal Public

Defender, Jonathan R. Saxe. Ossai was convicted following a

three-day jury trial in July of 2005. He was sentenced, on March

31, 2006, to 100 months imprisonment, to be followed by three

years of supervised release. He appealed, challenging the

district court’s denial of his motion to dismiss due to an

alleged destruction or loss of the surveillance tape, the

sufficiency of the evidence, and the reasonableness of his

sentence. His conviction and sentence were affirmed.

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1To the extent Ossai intended to raise the timely notice and

impeachment issues on their merits, rather than in the context of

ineffective assistance of counsel, the claims were procedurally

defaulted, and Ossai has not shown cause for the default or

resulting prejudice. See Owens v. United States, 483 F.3d 48, 56

(1st Cir. 2007). 

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Discussion

For purposes of his § 2255 motion, Ossai contends that his

counsel was constitutionally ineffective in failing to appeal the

issue of the lack of timely notice that the prosecutor would seek

a variance based on Ossai’s conduct in jail and in failing to

impeach John Chick by showing that he was a willing coconspirator.1 Ossai also argues that the length of his sentence

in comparison to the treatment of others who were involved in the

robbery amounts to an unlawful sentencing disparity. 

A. Ineffective Assistance of Counsel

To show constitutionally ineffective assistance of counsel,

Ossai must demonstrate that his counsel’s representation fell

below an acceptable standard and that the deficient

representation caused prejudice. Strickland v. Washington, 466

U.S. 668, 687 (1984); see also United States v. Ofray-Campos, 534

F.3d 1, 34 (1st Cir. 2008). Counsel’s performance is measured

deferentially, and the petitioner must show that the

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representation “fell below an objective standard of

reasonableness” based on what counsel knew or should have known

“at the time his tactical choices were made and implemented.” 

Yeboah-Sefah v. Ficco, --- F.3d. ---, 2009 WL 400383, at *8 (1st

Cir. Feb. 19, 2009). A showing of prejudice requires “‘a

reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different.’”

Malone v. Clarke, 536 F.3d 54, 64 (1st Cir. 2008) (quoting

Strickland, 466 U.S. at 697).

1. Notice

At the sentencing hearing, the court calculated a total

offense level of 26 and a criminal history category II, which

resulted in an advisory Guideline sentencing range of 70 to 87

months. The prosecutor recommended a sentence at the top of the

range, and defense counsel requested a sentence no greater than

70 months. At that point, the prosecutor informed the court that

she had a witness from the jail where Ossai was being held who

would testify about circumstances that would affect the sentence

under factors provided in 18 U.S.C. § 3553(a) and stated that,

based on the § 3553(a) factors, she would ask for a ten-year

sentence.

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Defense counsel objected on the ground that the prosecutor

failed to provide notice as required under the local rules. The

prosecutor admitted her mistake but explained that she had

provided the reports from the jail the day before and that

defense counsel was aware of what she intended to do. The court

noted the anomaly that the prosecutor first recommended a

sentence at the high end of the Guideline range and then asked

for a ten-year sentence outside of the range. The court allowed

the prosecutor to call the witness.

Bruce Pelkie, the first shift supervisor at the Strafford

County House of Corrections, where Ossai was being held,

testified about Ossai’s behavior at the jail. Pelkie described

numerous incidents, including instances where Ossai removed his

handcuffs, flooded his cell, threw urine and feces, broke

sprinkler heads off their fixtures, and scratched the glass in

his cell. Pelkie testified that Ossai was the worst inmate he

had ever encountered. In response, defense counsel stated that

the behavior Pelkie described indicated that Ossai had serious

psychological problems, which needed psychiatric treatment. 

The court sentenced Ossai to concurrent terms of 100 months

of imprisonment on each count and to a term of supervised

release. Defense counsel objected that the sentence was above

the Guideline range. The court noted counsel’s objection. In

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2Ossai cites Federal Rule of Criminal Procedure 32(h) which

does not apply to variances. Irizarry v. United States, 128 S.

Ct. 2198, 2204 (2008).

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explanation, the court stated that it considered both

recommendations on sentencing and the statutory maximum of twenty

years, the seriousness of the offenses which included holding a

gun to Chick’s neck while restraining him with his hand, the need

for a sentence sufficient to deter others, Ossai’s criminal

history and the guarded prognosis for appropriate behavior,

Ossai’s behavior while in jail, the relative culpability of Ossai

and his co-defendant, Khem, and Ossai’s history of substance

abuse. 

Under the local rules of this district, a party requesting a

departure under the Guidelines or a variance must file a motion

to that effect no later than four days prior to the scheduled

sentencing.2 LCrR 32(I). Defense counsel objected to the

prosecutor’s failure to provide notice as required by the local

rule. Counsel objected again after Pelkie testified. Ossai

faults his counsel for failing to raise the issue on appeal.

As the record demonstrates, Ossai’s sentence was based on 

multiple factors, including the considerations provided by §

3553(a). The court considered Ossai’s behavior in jail, along

with Ossai’s criminal history and recidivism, history of

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substance abuse, and behavior during the robbery. Taken in the

context of the sentencing factors, the dispute over Pelkie’s

testimony did not present a promising issue for appeal. 

Applying the deferential standard applicable to ineffective

assistance claims, counsel’s representation did not fall below an

objectively reasonable level based on his failure to appeal the

notice issue. In addition, Ossai cannot show prejudice. Under

the circumstances, there is no likelihood that he would have

received a more lenient sentence if the notice issue had been

successfully raised on appeal.

2. Impeachment

Ossai also contends that his counsel’s representation was

constitutionally ineffective because he failed to pursue

questioning of the government’s witness, John Chick, to impeach

him by showing that he was a willing co-conspirator. In

particular, Ossai contends that Chick’s testimony showed that he

willingly dropped to his knees, not that Ossai forced him to, and

that Chick contradicted himself in other testimony. The

testimony Ossai quotes and the transcripts of the trial document

defense counsel’s thorough efforts to impeach Chick.

Therefore, Ossai has not shown constitutionally ineffective

representation on that ground.

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B. Sentencing Disparity

Ossai contends that his sentence, 100 months, violates due

process and equal protection under the law because his coconspirator, Chanrathana Khem, received a 33-month sentence, and

Justin Cassidy and Andrew Pardi, who were also involved in the

conspiracy were not sentenced to prison time. In support of his

claim, Ossai cites § 3553(a)(6), which directs a sentencing court

“to consider the need to avoid unwarranted sentence disparities

among defendants with similar records who have been found guilty

of similar conduct.” 

Relief under § 2255 must be based on demonstrating that the

sentence was imposed in violation of the Constitution, the

sentencing court lacked jurisdiction, the sentence exceeded the

statutory maximum, or the sentence “was otherwise subject to

collateral attack.” A sentence is otherwise subject to

collateral attack only if the alleged error “reveal[s]

fundamental defects which, if uncorrected, will result in a

complete miscarriage of justice, or irregularities that are

inconsistent with the rudimentary demands of fair procedure.” 

Moreno-Morales v. United States, 334 F.3d 140, 148 (1st Cir.

2003) (internal quotation marks omitted).

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In this case, Ossai has not shown a fundamental defect or

irregularities. Section 3553(a)(6) focuses on whether

unwarranted disparities exist in sentences imposed for similar

conduct and on defendants with similar records. Khem was charged

with one count of violating the Hobbs Act, for her part as the

driver in the Dunkin’ Donuts robbery. She pled guilty and was

sentenced to 33 months. Justin Cassidy told the police about the

robbery, after it occurred, and was not charged. Andrew Pardi

was not involved in the robbery, although he knew about it. John

Chick was not part of the robbery conspiracy. 

Ossai committed the robbery, in conspiracy with Cassidy and

Khem. He also carried a gun during the robbery and held the gun

to Chick’s neck, forcing him to kneel on the floor. Kehm played

a more minor role, and Cassidy, who was sixteen years old, also

played a minor role. Therefore, Ossai’s conduct was not similar

to the others, and no sentencing disparity occurred. Even if the

circumstances suggested a disparity, which they do not, the

differences do not even begin to approach a miscarriage of

justice or unfair procedures. 

 To the extent Ossai intended to bring a claim that his

sentence violated the equal protection clause of the Fifth

Amendment, the claim fails. “The Constitution permits

qualitative differences in meting out punishment and there is no

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requirement that two persons convicted of the same offense

receive identical sentences.” Williams v. Illinois, 399 U.S.

235, 243 (1970); accord United States v. Lawrence, 179 F.3d 343,

347-48 (5th Cir. 1999). Ossai’s sentence was not arbitrary or

conscience-shocking in a constitutional sense that would violate

due process. See Espinoza v. Sabol, --- F.3d ---, 2009 WL

485455, at *3 (1st Cir. Feb. 27, 2009).

Conclusion

For the foregoing reasons, the petitioner’s motion for

relief under § 2255 is denied. The clerk of court shall enter

judgment accordingly and close the case.

SO ORDERED.

____________________________

Joseph A. DiClerico, Jr.

United States District Judge

March 4, 2009

cc: Aixa Maldonado-Quinones, Esquire

Ugochukwu Ossai, pro se

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