Garrio v. United States

Background

Brian Joseph Garrio moved under 28 U.S.C. § 2255, a federal procedure allowing a person in custody to ask the sentencing court to vacate, set aside, or correct a sentence. He argued that his court-appointed attorney, Margaret M. Shalley, provided ineffective assistance of counsel.

Garrio pleaded guilty to one count of stalking under 18 U.S.C. § 2261A(2)(B). The government initially calculated an advisory Sentencing Guidelines range of 41 to 51 months, but the Probation Department later calculated a range of 46 to 57 months after identifying two additional prior convictions. The court sentenced Garrio to 51 months’ imprisonment and three years of supervised release. The Second Circuit later affirmed the conviction and sentence.

Claims and Analysis

Garrio raised three main ineffective-assistance claims. Under Strickland v. Washington, he had to show both that his attorney’s performance fell below reasonable professional standards and that the alleged error probably affected the result.

Sentencing calculation. Garrio argued that his criminal history should have placed him in Category II rather than Category III and that a six-level increase based on the victim’s status as a government employee was improper. The court rejected both arguments. It found that the Probation Department had correctly included the two previously unknown convictions and that the six-level increase was proper because the victim was an FBI special agent and the offense was motivated by that status. Because the Guidelines calculation was correct, the court found that an objection would have been futile and that Garrio could not show prejudice.

The court also rejected Garrio’s additional complaints that FBI agents’ presence at sentencing, the victim’s appearance, or other circumstances affected his sentence. The court stated that the sentence was within the correctly calculated Guidelines range and that those circumstances had no effect on the sentence imposed.

Request for more time before sentencing. Garrio argued that his lawyer should have requested an adjournment because the government’s sentencing submission was filed late. The court noted that it had admonished the government about the late filing, but counsel told the court that she had reviewed the submission several times, that it contained nothing new, and that she did not need an adjournment. The court found that this was a reasonable tactical decision. It also found no reasonable probability that delaying sentencing would have produced a different sentence, particularly because Garrio received a sentence in the middle of the applicable range despite the government’s request for a sentence at the top of the range.

Guilty plea. Garrio argued that his lawyer failed to explain the difference between an open plea and a plea deal, predicted that he would receive 24 months, coerced him into pleading guilty, and failed to seek withdrawal of the plea. The court found that no plea deal had been offered, making that part of the claim baseless. It also relied on Garrio’s sworn statements during the plea hearing that he understood the possible sentencing consequences, that no one had promised him a particular sentence, and that he had not been threatened or coerced.

The court further held that an attorney’s incorrect sentence prediction, standing alone, was not ineffective assistance because such predictions are estimates. Garrio also did not show that he would have rejected the guilty plea and gone to trial if he had received different advice. Finally, the court concluded that a motion to withdraw the plea would have been frivolous because Garrio offered no basis to overcome his sworn statements that the plea was voluntary.

Disposition

Judge Vincent L. Briccetti denied Garrio’s motion under § 2255 and dismissed the petition. The court stated that Garrio had not made a substantial showing that a constitutional right was denied, so it would not issue a certificate of appealability. It also certified that any appeal would not be taken in good faith and denied permission to appeal without paying filing fees. The court instructed the clerk to terminate the motion and close case number 24 CV 5504.