Criminal Law

Dist. Ct. erred in denying defendant’s habeas petition alleging that his defense counsel was ineffective for failing to file notice of appeal regarding issue regarding Dist Ct.'s designatoin of defendant as career offender when sentencing him to 180-month term of incarceration on drug distribution charge. While Dist. Ct. based instant denial on waiver of collateral attack language in plea agreement, Ct. of Appeals found that defendant could challenge propriety of his sentence via habeas petition where: (1) plea agreement allowed defendant to contest career offender finding in any direct appeal; and (2) defendant’s assertion that trial counsel failed to file notice of appeal would constitute ineffective assistance of counsel if Dist. Ct. on remand found that defense counsel had ignored defendant’s instruction to file notice of appeal.

Dist. Ct. did not err in sentencing defendant to 50-month term of incarceration on drug conspiracy charge even though defendant argued that Dist. Ct. improperly applied obstruction of justice enhancement after defendant had fled country to Philippines to avoid death threat from co-conspirator. While defendant argued that enhancement was improper even though he had stayed in Philippines for 4 years because of said threat, Dist. Ct. was entitled to discredit defendant's claim where defendant: (1) had fled country prior to filing of any formal charges against him; (2) was aware of possible formal charges being filed against him; and (3) hid in Philippines for extended period of time without contacting any authorities to explain his whereabouts.

Dist. Ct. erred, in part, in entering $218,952 restitution order as part of defendant's sentence on charge of conspiracy to commit wire fraud arising out of defendant's role in submitting home mortgage applications containing inflated income and asset representations. Dist. Ct. improperly included attorney fees and unspecified fees in restitution award, but properly found that relevant "offset value" of subject real estate used to establish restitution award was eventual cash proceeds recouped following foreclosure sale rather than fair market value of property on date of foreclosure as urged by defendant. Dist. Ct. could also include in restitution order all expenses related to sale of said properties.