Francesco Graziano appeals from an order of the United States District Court for the Eastern District of New York (I. Leo Glasser, Judge) denying his motion to vacate his sentence pursuant to 28 U.S.C. § 2255. For the reasons set forth below, we affirm the judgment of the district court.
On May 11, 1993, Graziano was indicted for (1) conspiring to murder Louis DiBono for the purpose of gaining entrance to or enhancing his position in the Gambino Organized Crime Family, in violation of 18 U.S.C. § 1959(a)(5), and (2) the October 2, 1990, murder of DiBono, in violation of § 1959(a)(1). On June 15, 1994, Graziano entered into a plea agreement and a sentencing bargain by which he agreed to plead guilty to the conspiracy count. He also agreed that pursuant to Rule 11(e)(1)(C)
The plea allocution was also conducted on June 15, 1994. After determining that Graziano had reviewed the agreement with his attorney, the court asked Graziano about the factual basis for his plea, and Graziano admitted that he had entered into an agreement to murder DiBono in order to maintain his position in the Gambino Crime Family. The court accepted Graziano's guilty plea, reserving decision on whether to impose the sentence agreed upon by the parties in the plea agreement.
At the sentencing hearing on September 14, 1994, Graziano's counsel made no objections to the presentence report, noting only that the court should consider Graziano's limited income in imposing any fine. The court approved the ten-year term of imprisonment stipulated to by the parties, and imposed a three-year term of supervised release and a $50 special assessment. After noting that it had "considered the financial implications [of imposing a fine]," the court also sentenced Graziano to a fine of $250,000. Judgment was entered on September 15, 1994.
Graziano brought no direct appeal from his conviction or his sentence, but on April 10, 1995, filed this motion pursuant to 28 U.S.C. § 2255, pro se and in forma pauperis. Graziano raised several issues before the district court, including (1) that his guilty plea was induced by misrepresentations and erroneous advice from his counsel regarding the applicable Sentencing Guidelines range for the conspiracy charge to which he pled; (2) that his three-year term of supervised release was not authorized by 18 U.S.C. § 1959(a)(5); and (3) that the fine imposed by the district court exceeded the statutory maximum under § 1959(a)(5). In a Memorandum and Order dated September 1, 1995, the district court dismissed Graziano's motion as meritless and procedurally barred due to his failure to bring a direct appeal. Significantly, the district
Graziano filed his notice of appeal pro se on September 21, 1995, and the district court denied his motion for reconsideration on October 25, 1995. Subsequently, Graziano retained counsel who filed a supplemental memorandum of law and argued on his behalf.
On appeal, Graziano raises eight issues — several for the first time. He contends that (1) the court erred in imposing the $250,000 fine without a proper inquiry into his ability to pay, pursuant to 18 U.S.C. § 3572(a); (2) the $250,000 fine was not authorized by the statute defining the offense, 18 U.S.C. § 1959(a)(5); (3) the fine imposed exceeded the Sentencing Guidelines range in effect at the time he committed the crime; (4) his guilty plea should be vacated due to ineffective assistance of counsel; (5) his sentence to a three-year term of supervised release was not authorized by § 1959(a)(5); (6) his guilty plea should be vacated because his indictment was defective; (7) 18 U.S.C. § 1959 is unconstitutional; and (8) the court erred in failing to grant him an evidentiary hearing on his § 2255 motion.
We begin with Graziano's three challenges to the $250,000 fine imposed by the district court. Insofar as Graziano was proceeding pro se before the district court, we interpret those pleadings liberally and construe his challenge to the statutory authority for the $250,000 fine before the district court as encompassing the two other challenges to the fine that have been "refined" with the assistance of appellate counsel. See Billy-Eko v. United States, 8 F.3d 111, 117 (2d Cir.1993). We find them all to be without merit. First, Graziano's claim that the district court did not consider the factors enumerated in 18 U.S.C. § 3572(a)
Although Graziano's third claim — that the fine was improper because it exceeded the applicable range established by the Sentencing Guidelines in effect at the time he committed the offense — is colorable, we find that it is procedurally barred due to Graziano's failure to raise the claim on direct appeal.
We have previously held that "collateral attack on a final judgment in a criminal
This approach to violations of the Sentencing Guidelines is consistent with our view that the scope of review on a § 2255 motion should be "narrowly limited" in order to preserve the finality of criminal sentences and to effect the efficient allocation of judicial resources. Bokun, 73 F.3d at 12; Napoli v. United States, 32 F.3d 31, 35, 36 (2d Cir. 1994), amended on reh'g on other grounds, 45 F.3d 680 (2d Cir.), cert. denied, ___ U.S. ___, 115 S.Ct. 1796, 131 L.Ed.2d 724 (1995). Furthermore, we have previously applied the "complete miscarriage of justice" standard in the sentencing context to a defendant's § 2255 challenge to his guilty plea where the district court had committed a procedural error in failing to inform the defendant of the possibility of a fine and a special parole term. Lucas v. United States, 963 F.2d 8, 12-14 (2d Cir.1992), cert. denied, 506 U.S. 895, 113 S.Ct. 270, 121 L.Ed.2d 199 (1992).
We find that the circumstances in the instant case do not amount to a "complete miscarriage of justice." Graziano was explicitly informed that he faced a $250,000 fine, and so informed, he voluntarily entered a plea of guilty. Any challenge that Graziano had regarding alleged violations of the Sentencing Guidelines should have been raised on direct appeal. Accordingly, his claim is procedurally barred.
We find Graziano's claims regarding ineffective assistance of counsel and his three-year term of supervised release to be without merit for substantially the same reasons set forth in the district court's Memorandum and Order of September 1, 1995. The remainder of his claims on appeal are barred due to his failure to raise them in the district court. Finally, insofar as all of the claims raised by Graziano in the district court were properly found to be either clearly meritless or procedurally barred, we find that the court did not err in failing to grant a hearing on his § 2255 motion. See United States v. Aiello, 900 F.2d 528, 534 (2d Cir. 1990).