USA v. Robinson et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
UNITED STATES
vs. 	CR No. 11-147-ML
ROBERT O. ROBINSON
MEMORANDUM AND ORDER
Pending before the Court is a Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or
Correct Sentence by a Person in Federal Custody (Doc. #188) (“Motion”) and amendment thereto
(Doc. #189) (“Amended Motion”) filed by Petitioner Robert O. Robinson (“Petitioner” or
“Robinson”). The Government has filed an objection to the Motion (Doc. #190) (“Objection”), to
which Robinson filed a reply (Doc. #191) (“Reply”). No hearing is necessary.
FACTUAL BACKGROUND AND TRAVEL
On August 17, 2011, a grand jury sitting in the District of Rhode Island returned an
indictment charging Robinson with one count of conspiracy to possess with intent to distribute 280
grams or more of cocaine base and ten counts of possession with intent to distribute cocaine base,
in violation of 	21 U.S.C. §§ 841(a)(1), 841(b)(1), and 846. 	After a jury trial, Robinson was
convicted on June 20, 2012, of each count. 	He was sentenced on October 31, 2012, to a term of
240 months imprisonment. Judgment entered on November 7, 2012. Robinson appealed, and the
Court of Appeals for the First Circuit affirmed Robinson’s convictions in their entirety. United
States v. Robinson, 753 F.3d 31 (1st Cir. 2014). On October 6, 2014, the United States Supreme
Court denied Robinson’s petition for writ of certiorari. Robinson v. United States, 135 S. Ct. 313
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(2014).
Robinson timely filed the instant Motion on September 23, 2015, followed by the Amended1
Motion. 	He alleges ineffective assistance of both plea and appellate counsel.2
DISCUSSION
I. 	Section 2255 and AEDPA
Generally, the grounds justifying relief under 28 U.S.C. § 2255 are limited. A court may
grant such relief only if it finds a lack of jurisdiction, a constitutional error, or a fundamental error
of law. See United States v. Addonizio, 442 U.S. 178, 185 (1979)(“[A]n error of law does not
provide a basis for collateral attack unless the claimed error constituted a fundamental defect which
inherently results in a complete miscarriage of justice.”)(internal quotation marks omitted).
Section 2255 states that:
(a) A prisoner in custody under sentence of a court established by Act of Congress
claiming the right to be released upon the ground that the sentence was imposed in
violation of the Constitution or laws of the United States, or that the court was
without jurisdiction to impose such sentence, or that the sentence was in excess of
the maximum authorized by law, or is otherwise subject to collateral attack, may
move the court which imposed the sentence to vacate, set aside or correct the
sentence.
28 U.S.C. § 2255(a).
In 1996, Congress enacted the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”),
which “imposed significant new constraints on proceedings under section 2255.” Trenkler v. United
States, 536 F.3d 85, 96 (1st Cir. 2008)(footnote omitted). “Some of these constraints were temporal;
The Motion, received by the Court on September 29, 2015, was placed in the prison mailing system	1
on September 23, 2015, and is deemed filed on that date. See Houston v. Lack, 487 U.S. 266, 276 (1988).
The Court granted Robinson’s Motion to Amend 28 U.S.C. § 2255 Petition by text order on	2
November 3, 2015. See Docket.
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for example, AEDPA established a one-year statute of limitations for filing a section 2255 petition.”
Id. (citing 28 U.S.C. § 2255(f)). Others were numerical, requiring a petitioner to obtain preclearance
from the circuit court before filing a second or successive petition. Id. (citing 28 U.S. § 2255(h)).
II. 	Strickland
A defendant who claims that he was deprived of his Sixth Amendment right to the effective
assistance of counsel must demonstrate:
(1) 	that his counsel’s performance fell below an objective standard of reasonableness;
and
(2) 	a reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.
Strickland v. Washington, 466 U.S. 668, 687-88 (1984); United States v. Manon, 608 F.3d 126, 131
(1st Cir. 2010)(same). In assessing the adequacy of counsel’s performance, a defendant “‘must
identify the acts or omissions of counsel that are alleged not to have been the result of reasonable
professional judgment,’ and the court then determines whether, in the particular context, the
identified conduct or inaction was ‘outside the wide range of professionally competent assistance.’”
Manon, 608 F.3d at 131 (quoting Strickland, 466 U.S. at 690); see also Strickland, 466 U.S. at 689
(noting that the court “must indulge a strong presumption that counsel’s conduct falls within the
wide range of reasonable professional assistance ...”). 	To show prejudice under Strickland, the
defendant must demonstrate that “there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S.
at 694. A reasonable probability is one “sufficient to undermine confidence in the outcome.” Id.
In making the prejudice assessment, the court focuses on the “fundamental fairness of the
proceeding.” Manon, 608 F.3d at 131; see also Strickland, 466 U.S. at 696. “Unless a defendant
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makes both showings, it cannot be said that the conviction ... resulted from a breakdown in the
adversary process that renders the result unreliable.” Strickland, 466 U.S. at 687; see also Reyes-
Vejerano v. United States, 117 F. Supp. 2d 103, 106 (D.P.R. 2000)(“The petitioner has the burden
of proving both prongs of this test, and the burden is a heavy one.”). “The benchmark for judging
any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper
functioning of the adversarial process that the trial cannot be relied on as having produced a just
result.” Strickland, 466 U.S. at 686.
The same principles apply in the context of guilty pleas. See Hill v. Lockhart, 474 U.S. 52,
57 (1985). The Hill Court held that “the two-part Strickland v. Washington test applies to challenges
to guilty pleas based on ineffective assistance of counsel.” Id. at 58; see also Padilla v. Kentucky,
559 U.S. 356, 371 n.12 (2010)(“In Hill, the Court recognized–for the first time–that Strickland
applies to advice respecting a guilty plea.”). The first prong of the Strickland test is nothing more
than a restatement of the standard of attorney competence described above. Hill, 474 U.S. at 58.
The second, or “prejudice” requirement, on the other hand, focuses on whether
counsel’s constitutionally ineffective performance affected the outcome of the plea
process. 	In other words, 	in order to satisfy the “prejudice” requirement, the
defendant must show that there is a reasonable probability that, but for counsel’s
errors, he would not have pleaded guilty and would have insisted on going to trial.
Id. at 59 , ; see also Lafler v. Cooper, 156, 163 (2012)(“In the context of pleas a defendant must show
the outcome of the plea process would have been different with competent advice.”); id. at 164 (“In
these circumstances a defendant must show that but for the ineffective advice of counsel there is a
reasonable probability that the plea offer would have been presented to the court (i.e., that the
defendant would have accepted the plea and the prosecution would not have withdrawn it in light
of intervening circumstances), that the court would have accepted its terms, and that the conviction
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or sentence, or both, under the offer’s terms would have been less severe than under the judgment
and sentence that in fact were imposed.”). The Hill Court reiterated that, as stated in Strickland,
“these predictions of the outcome at a possible trial, where necessary, should be made objectively
....” 474 U.S. at 59-60; see also Padilla, 559 U.S. at 372 (noting that “to obtain relief on this type
of claim, a petitioner must convince the court that a decision to reject the plea bargain would have
been rational under the circumstances”).
III. 	Analysis
A. 	Ineffective assistance of plea counsel
Robinson first claims that his counsel’s “representation during the plea negotiation stage of
the proceedings violated the Sixth Amendment based upon his failure to provide Petitioner with the
requisite advice to make an informed decision to accept or refuse the government’s 10-13 year plea
offer.” Amended Motion at 8; see also id. at 9 (“Petitioner contends that to the extent that Smith[3]
failed to offer his informed opinion as to whether to accept the government’s final plea offer based
upon his knowledge of the relevant law and applicable facts his performance was constitutionally
deficient.”). He further argues that “[b]ut for counsel’s deficient performance, Robinson would have
accepted the government’s final plea offer.” Motion at 4. The Government responds that it “did not
offer the defendant a second plea agreement of ten to thirteen years.” Response at 8. Further, the
Government states, “even if a second plea agreement had been offered, the defendant cannot
establish that he was prejudiced by his attorney’s performance.” Id.
Robinson’s and the Government’s versions of events are markedly different. According to
Robinson:
Matthew B. Smith represented Robinson during the plea negotiation stage of the proceedings. See	3
Docket; see also Amended Motion at 2 n.1.
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Prior to the commencement of the trial proceedings the government extended two
separate plea offers. The government initially offered a plea of 20 years. This plea
was rejected upon Smith’s explanation that the 21 U.S.C. § 851 enhancement[4]
would mandate the imposition of a mandatory minimum sentence of 20 years.
On the morning that the trial proceedings were scheduled to commence, Smith
informed Petitioner that the government had extended a second plea offer of 10-13
years. When Petitioner questioned Smith in regards to how the plea would affect the
penalty which would be imposed for the probation violation, Smith indicated that the
matter would be addressed when it became relevant. Smith declined to discuss any
other matters because he had become agitated by Petitioner’s question germane to the
plea’s effect on the pending probation violation. 	Smith abruptly departed and
informed Petitioner that he would see him in the courtroom. Of significance, Smith
exited without providing Petitioner with his professional and informed opinion as to
what plea should be entered based on his assessment of the relevant law and case
related facts. Lacking the informed opinion of his attorney as to what plea should be
entered, Petitioner opted to reject the 10-13 year plea offer and proceed to trial.
Amended Motion at 2-3 (internal citations omitted). Robinson has attached a sworn declaration
attesting to the above description of what transpired. Amended Motion, Attachment A at 22-23.
The Government states:
In this case, as the record indicates, the defendant was originally offered a plea
agreement 	which, 	among 	other 	things, 	offered 	the 	defendant 	a 	sentencing
recommendation from the government of the higher of the mandatory minimum, or
the guideline range as computed by the Court. 	This initial plea offer was never
accepted by the defendant. Instead, based upon the defendant’s witness tampering
while the plea offer was pending, a revocation of the plea offer was transmitted to the
defendant’s counsel with the only open issue being whether the government, in its
sole discretion, was going to file a second § 851 Information and increase the
defendant’s mandatory minimum sentence to life imprisonment.
Objection at 7-8 (internal citations omitted); see also id., Ex. A (March 23, 2012, letter from
Government to defense counsel with enclosed plea offer); id., Ex. B (April 6, 2012, letter
On October 17, 2011, the Government filed an Information Charging Prior Conviction pursuant to	4
21 U.S.C. § 851 (Doc. #45), which restricted Robinson’s sentencing guideline range to a twenty year
mandatory minimum term of imprisonment. Objection at 2 n.1. Subsequently, on March 22, 2012, the
Government filed an Amended Information Charging Prior Conviction (Doc. #71), “which did not change
the applicability of the twenty year mandatory minimum.” Id.
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withdrawing plea offer). The Government concludes: “Thus the claim that, on the ‘morning trial was
to commence’ the government would then offer the defendant a plea offer of ‘10-13 years,’ is
incredible.” Id. at 8.
Robinson argues that “the overall record supports Petitioner’s argument that a second plea
offer of 10-13 years was made and presented to him by counsel on the morning of the trial ....”
Reply at 2. On the contrary, the only “evidence” in the record which supports Robinson’s allegation
that a second plea offer was made is his own, albeit sworn, statement. The Assistant United States
Attorney (“AUSA”) who was prosecuting the case denies that such an offer was made. Objection
at 8. Although Robinson faults the Government for failing to submit an affidavit from the AUSA
“indicating that no oral plea had been discussed between the parties, viz., himself and the
Government, which eliminated the 21 U.S.C. § 851 enhancement and exposed Petitioner to a
sentencing range of 10-13 years,” Reply at 2, the AUSA is an officer of the Court, and, as such, his
statements carry more weight than Robinson’s “self-serving, post hoc assertions ... [which] rest
solely on the credibility of the defendant ...,” Objection at 7. Robinson’s credibility is questionable
given his statement that he “rejected” the Government’s March 23, 2012, plea offer when the record
indicates that said offer was withdrawn. 	See id., Ex. B. 	Moreover, Robinson has provided no
evidence, for example, an affidavit from defense counsel, to support his allegation that a purported
second plea offer was made.
The evidence of record demonstrates the following. As noted above, on October 17, 2011,
the Government filed an Information Charging Prior Conviction. See Docket. On March 22, 2012,
the Government filed an Amended Information Charging Prior Conviction. See id. On March 23,
2012, the Government sent defense counsel a letter with a proposed plea agreement attached. See
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Objection, Ex. A. 	Pursuant to that 	proposed agreement, the Government offered to make a
sentencing recommendation of “a term of imprisonment at the low end of the sentences for the
offense level determined by the Court under the United States Sentencing Guidelines ... or the
mandatory minimum term of imprisonment pursuant to statute, whichever term is greater ....” Id.
¶ 2a. The offer included the following provisions:
a. 	Defendant has been served with an Amended Information Charging Prior
Conviction 	(“Amended 	Information”) 	pursuant 	to 	21 	U.S.C. 	§ 	851. 	He
acknowledges that the Amended Information is a true and accurate summary of his
[ ]	qualifying convictions in U.S. v. Robert O. Robinson, CR. No. 01-103-ML , and that
he is therefore subject to the enhanced penalties contained therein ....
b. 	Defendant understands that although he has at least one other prior felony
drug offense conviction not included in the preceding paragraph, the government has
agreed not to file a successive sentencing enhancement beyond the Amended
Information pursuant to 21 U.S.C. § 851. Defendant further understands that if the
government were to file such a successive enhancement information, Defendant
would face a mandatory term of life imprisonment without release and a $20,000 fine
on Count I.
Id. ¶ 4.
The plea offer, however, was withdrawn on April 6, 2012. Objection, Ex. B at 2. The letter
from the AUSA to defense counsel so stating reads:
This letter will confirm that the plea offer previously made to your client has been
withdrawn. In addition, I am attaching a copy of a letter that your client sent to [a
Government witness]. As we discussed, I have agreed not to file a second Notice of
Information which would increase your client’s maximum penalty to a mandatory life
sentence until on or after April 16, 2012. 	Thereafter, whether I file such an
enhancement will be in my sole discretion. Once filed, the Information will not be
withdrawn or otherwise dismissed.
Id.
It defies logic to believe that the Government would, on the eve of trial, offer a more
favorable plea agreement than that which it had already withdrawn under the circumstances noted
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above. Robinson provides no rationale as to why this would occur, nor would any such explanation
be reasonable. Moreover, given the existence of the Amended Information, which the Docket does
not indicate was withdrawn, see Docket, the Government could not offer a plea containing a sentence
of less than twenty years. It is illogical to assume, as Robinson suggests, that the Government would
have withdrawn the § 851 Amended Information at the last minute to allow it to do so.
Robinson’s second argument amounts to no more than semantics. 	He states that “the
Government’s response does not expressly deny that a second plea offer was discussed that
eliminated the § 851 enhancement,” and characterizes the Government’s response as “circuitous[].”
Reply at 2. The Government’s position could not be clearer: “the government did not offer the
defendant a second plea agreement of ten to thirteen years.” 	Objection at 8; see also id. at 7-8
(characterizing Robinson’s allegation as “unbelievable at best” and “incredible”). 	Based on the
foregoing, the Court rejects Robinson’s allegation that the purported second plea offer was made.
Finally, Robinson argues that “the Government’s contention that Petitioner would have
proceeded to trial even if the second plea existed is not supported by the record.” Reply at 3. The
Court need not address this argument given its conclusion that there was no second plea offer.5
Counsel’s performance cannot be deemed ineffective for failing to give advice regarding a
non-existent plea offer. Having found that counsel’s performance was not deficient, the Court need
not address Strickland’s prejudice prong. See Strickland, 466 U.S. at 687 (noting that defendant
Robinson correctly notes that if the Court dismisses a § 2255 claim without holding an evidentiary	5
hearing, it must “take as true the sworn allegations of fact set forth in the petition unless those allegations
are merely conclusory, contradicted by the record, or inherently incredible.” Owens v. United States, 483
F.3d 48, 57 (1st Cir. 2007)(internal quotation marks omitted); see also Reply at 1. 	The Court finds
Robinson’s allegation that a last-minute second plea offer was made to be both contradicted (and
unsupported) by the record and inherently incredible. Owens, 483 F.3d at 57.
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must make both showings); c.f. Knight v. United States, 37 F.3d 769, 775 (1st Cir. 1994)(“Since
Knight has not satisfied the second prong of Strickland, we need not address the first prong.”).
Robinson does not allege that plea counsel’s performance with respect to the Government’s March
23, 2012, proposed plea agreement was deficient. 	Robinson’s first claim of error, therefore, fails.6
B. 	Ineffective assistance of appellate counsel
Robinson next claims that appellate counsel’s “representation violated the Sixth Amendment
on direct appeal based on his failure to raise a non-frivolous issue regarding the Court’s failure to
instruct the jury on a lesser included offense where the relevant facts warranted such an instruction.”
Amended Motion at 13. 	He contends that counsel’s “failure to argue on direct appeal that a lesser
included offense instruction was warranted in light [of] the Supreme Court’s intervening decision
in Alleyne 	rendered his performance objectively unreasonable.” Id. Had the issue been raised,[7]
Robinson argues, “the result of the appellate proceedings would have been different.” Motion at 5.
The Government counters that Robinson cannot meet the “extraordinarily high burden” to prove
ineffective assistance of counsel on direct appeal because “it was reasonable for his attorney to omit
the claim in question.” Objection at 9.
Defendants have a right to effective assistance of counsel on appeal. 	Pinillos v. United
States, 990 F. Supp. 2d 83, 104 (D.P.R. 2013)(citing Evitts v. Lucey, 469 U.S. 387, 396-97 (1985)).
However, “[t]his does not mean that they have to raise every issue that an appellant directs them to
file.” Id. The Supreme Court has held that “appellate counsel who files a merits brief need not (and
In fact, Robinson states that he rejected the offer based on “Smith’s explanation that the 21 U.S.C.	6
§ 851 enhancement would mandate the imposition of a mandatory minimum sentence of 20 years.” Amended
Motion at 2.
Alleyne v. United States, — U.S. —, 133 S. Ct. 2151 (2013).	7
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should not) raise every nonfrivolous claim, but rather may select from among them in order to
maximize the likelihood of success on appeal.” Smith v. Robbins, 528 U.S. 259, 288 (2000)(citing
Jones v. Barnes, 463 U.S. 745 (1983)); see also Wyman v. United States, 62 Fed. Appx. 364, 367
(1st Cir. 2003)(quoting Smith). 	The Supreme Court stated that “it is still possible to bring a
Strickland claim based on counsel’s failure to raise a particular claim, but it is difficult to
demonstrate that counsel was incompetent.” Smith, 528 U.S. at 288.
In order to demonstrate ineffective assistance of counsel at the appellate stage, a petitioner
must show that the omitted claim “was so obvious and promising that no competent lawyer could
have failed to pursue it.” Cirilo-Muñoz v. United States, 404 F.3d 527, 530 (1st Cir. 2005)(quoting
Arroyo v. United States, 195 F.3d 54, 55 (1st Cir. 1999)); see also Smith, 528 U.S. at 288 (quoting
Gray v. Greer, 800 F.2d 644, 646 (7th Cir. 1986)(“Generally, only when ignored issues are clearly
stronger than those presented, will the presumption of effective assistance of counsel be
overcome.”)). Even if Robinson could show ineffectiveness, he must still demonstrate prejudice.
Smith, 528 U.S. at 289; Cirilo-Muñoz, 404 F.3d at 530.
In Alleyne v. United States, — U.S. —, 133 S. Ct. 2151 (2013), the Supreme Court held that
“[f]acts that increase the mandatory minimum sentence are ... elements and must be submitted to the
jury and found beyond a reasonable doubt.” Id. at 2158; see also id. at 2163. Robinson claims that,
in light of Alleyne:
[T]he evidence adduced at trial undoubtedly warranted that a lesser included offense
instruction be given in relation to the conspiracy offense. Had this issue been raised
on appeal, there is a reasonable probability that the First Circuit would have
concluded in light of the trial record that the jury could have rationally convicted
Petitioner of a lesser conspiracy but for the all-or-nothing choice with which it was
provided.
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Reply at 4-5; see also Motion at 5 (“Because the trial record contained evidence that the CI tampered
with the drugs purchased during several transactions, under the intervening Supreme Court decision
a viable argument existed that Robinson was entitled to a lesser included offense instruction with
respect to drug quantity in regards to the conspiracy offense charged in Count One.”).
According to Robinson, the following “facts” warranted a lesser included offense instruction:
(1) that the confidential informant (“CI”) had tampered with the evidence; (2) that the CI had
engaged in other conduct which violated the guidelines set by his informant contract; (3) that the
protocol established by Special Agent Michael Payne (the “SA”) of the Bureau of Alcohol, Tobacco,
Firearms and Explosives (“ATF”) left the CI alone and unmonitored for several minutes after
purchasing the drugs; and (4) that there was a discrepancy between the quantity of drugs purchased
by the CI and the drugs weighed by the toxicologist. Amended Motion at 15-17; see also id. at 19-
20. 	Thus, Robinson argues, “the accuracy of the total weight of crack cocaine attributed to the
conspiracy 	was tainted which necessarily implicated the concomitant question of whether this total[8]
amount (or some amount less than 280 grams) was properly attributable to Petitioner.” Id. at 19-20.
The Government counters that:
The government charged and proved to the jury the highest crack cocaine threshold
which was 280 grams or more for the defendant’s crime, see Alleyne, 133 S.Ct. at
2155, and thus the attorney did not err by choosing not to raise the issue on appeal.
Since the purported error would not have reduced the chargeable amount of crack
cocaine below 280 grams, the defendant cannot show that he was prejudiced as a
result of his attorney’s allegedly deficient performance.
Objection at 9-10.
Robinson overlooks the fact that, by his own account, the evidence he cites in support of his
The total amount of crack cocaine involved in the conspiracy was approximately 311 grams.	8
Amended Motion at 19; see also Objection, Ex. A ¶ 5.
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argument that a lesser included offense instruction should have been given was before the jury.
There was testimony that the evidence, i.e., the crack cocaine, was tampered with, although the
testimony differed as to how many times the tampering occurred. Amended Motion at 15-16. The
SA testified that the CI had purchased drugs during the period when the charged conspiracy took
place without being instructed to do so by the SA and without the SA’s knowledge. Id. at 16. The
SA also testified regarding the protocol as to how the transactions were conducted. Id. Finally, there
was evidence pertaining to a discrepancy in the weight of the drugs as weighted by the SA and the
toxicology lab. Id. at 17. Nonetheless, the jury found Robinson guilty of conspiring to distribute 280
grams or more of crack cocaine. Motion at 1.
It is clear that the fact necessary to trigger the mandatory minimum sentence, the 280 grams
of crack cocaine, was found by the jury, not by the Court. Therefore, no Alleyne violation occurred,
and Robinson’s argument to the contrary fails. It follows that an argument that a lesser included
offense instruction should have been given based on Alleyne was not “so obvious and promising”
that appellate counsel’s failure to raise such a claim constitutes ineffective assistance. Cirilo-Muñoz,
404 F.3d at 530; Wyman, 62 Fed. Appx. at 367 (“The two issues that Wyman argues were ignored
by counsel are not clearly stronger than those presented. To the contrary, the ignored issues appear
to be frivolous.”)(internal citations and quotation marks omitted). 9
Robinson has not rebutted the presumption that he received effective assistance of counsel
on direct appeal. Accordingly, his claim of ineffective assistance of appellate counsel is rejected.
CONCLUSION
The issues counsel raised on appeal “revolve[d] around an alleged pre-trial deprivation of	9
[Robinson’s] Sixth Amendment right to counsel of his choice, coupled with a claim that the district judge
erred in refusing his requests for continuances.” United States v. Robinson, 753 F.3d 31, 34 (1st Cir. 2014).
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Robinson has not demonstrated that he received ineffective assistance of counsel at either
the plea or appellate stages of these proceedings. For the foregoing reasons, the Motion is DENIED
and DISMISSED.
RULING ON CERTIFICATE OF APPEALABILITY
Pursuant to Rule 11(a) of the Rules Governing § 2255 Proceedings in the United States
District Courts (§ 2255 Rules), this Court hereby finds that this case is not appropriate for the
issuance of a certificate of appealability (COA), because Robinson has failed to make a substantial
showing of the denial of a constitutional right as to any claim, as required by 28 U.S.C. §2253(c)(2).
Robinson is advised that any motion to reconsider this ruling will not extend the time to file
a notice of appeal in this matter. See § 2255 Rule 11(a).
SO ORDERED:
/s/ Mary M. Lisi ____________
Mary M. Lisi
Senior United States District Judge
Date: February 28, 2017
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