Opinion
4:20-cr-20-CDL-MSH 4:22- cv-00188-CDL-MSH
06-05-2023
JEFFREY MCBRIDE, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
REPORT AND RECOMMENDATION
STEPHEN HYLES UNITED STATES MAGISTRATE JUDGE
Pending before the Court is Petitioner Jeffrey McBride's motion and amended motion to vacate his sentence pursuant to 28 U.S.C. § 2255 (ECF Nos. 77, 79). For the reasons stated below, it is recommended that McBride's motion to vacate be denied.
BACKGROUND
On July 15, 2020, a federal grand jury returned an indictment against Petitioner, charging him with possession of firearms by a convicted felon in violation of 18 U.S.C. § 922(g)(1) and § 924(a)(2), possession with intent to distribute methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A) and 18 U.S.C. § 2, and possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A). Indictment 1-3, ECF No. 1. Petitioner was arrested on August 5, 2020. Arrest Warrant 1, ECF No. 11; ECF 21. On the same day, Petitioner appeared for an initial appearance via video conference and entered a plea of not guilty. Text-only Minute Entry, ECF No. 19; Plea Sheet 1, ECF No. 32.
On December 3, 2020, the Government filed a Superseding Information, which charged Petitioner only with one count of possession of methamphetamine with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A). Superseding Information, ECF No. 36. That same day, Petitioner signed a plea agreement and pled guilty to the Superseding Information. Plea Sheet, ECF No. 37; Plea Tr. 19, ECF No. 68; Plea Agreement, ECF No. 38. In doing so, Petitioner agreed that the Government could prove that on September 20, 2019, he possessed and intended to distribute methamphetamine with a net weight of 498.73 grams and a purity of 72% +/- 5%, resulting in 334.15 grams of pure methamphetamine. Plea Tr. 20-22; Plea Agreement 10. Additionally, the parties agreed that, during the search of the vehicle occupied by Petitioner, the Government uncovered a loaded handgun under the driver side floor mat. Plea Sheet; Plea Tr. 19; Plea Agreement 10.
Following Petitioner's guilty plea, the United States Probation Office (“USPO” or “Probation”) prepared a pre-sentence report (“PSR”) (ECF No. 47) using the United States Sentencing Guidelines (“U.S.S.G.” or “Guidelines”). In calculating the offense level, the USPO assigned a base level offense of 32, PSR ¶ 19, ECF No. 47, with an adjusted level of 34 due to the special offense characteristics. Id. ¶¶ 20, 24. After a three-level reduction for acceptance of responsibility and entering the plea in a timely manner, the final total offense level was 31. Id. ¶¶ 26-28. The USPO calculated a criminal history category of V and determined that Petitioner's Guidelines imprisonment range was 168-210 months. Id. ¶ 55. Neither party filed an objection to the PSR. PSR Addendum, ECF No. 47-1. Petitioner filed a sentencing memorandum through counsel on March 1, 2021, requesting the Court not to apply the 2-point enhancement for a firearm located in the vehicle operated by Petitioner's partner, noting that Petitioner “was arrested outside of the vehicle” and “neither had the firearm on his person nor within his reach.” Sent'g Memo 1, ECF No. 48.
On March 2, 2021, the Court conducted a sentencing hearing via zoom and considered Petitioner's arguments. Sent'g Tr., ECF No. 69. Petitioner's counsel stated she was not officially objecting to the PSR in making the argument against the two-point firearm enhancement, noting it was a discretionary matter for the court. Id. at 6. The Court determined this was effectively an objection, id. at 11, and overruled it. Id. at 13-14. The Court sentenced Petitioner to 168 months' imprisonment, three years supervised release, and imposed a $100 mandatory assessment. Sent'g Tr. 22-23 Judgment 2-7, ECF No. 51.
On September 23, 2021, Petitioner filed a notice of appeal (ECF No. 57). On appeal, the Eleventh Circuit affirmed Petitioner's sentence due to his appeal waiver. 11th Cir. Op. 2-4, ECF No. 73. Petitioner filed a motion to vacate his sentence (ECF No. 77) pursuant to 28 U.S.C. § 2255 on November 29, 2022, and an amended motion (ECF No. 79) on January 12, 2023. After the Court granted an extension of time to respond (ECF No. 81), Respondent filed a response on February 28, 2023 (ECF No. 83). Petitioner filed his reply on March 20, 2023 (ECF No. 84). Petitioner's motion to vacate is ripe for review.
DISCUSSION
I. Motion to Vacate
Petitioner's sole ground for relief in his motion to vacate is ineffective assistance of counsel. Respondent argues Petitioner's motion should be denied because Petitioner cannot meet his burden to show counsel was ineffective. The Court agrees and recommends that Petitioner's motion be denied.
A. Ineffective Assistance of Counsel
Petitioner alleges that counsel's assistance was ineffective (1) at sentencing; (2) on direct appeal; and (3) in misadvising Petitioner to plead guilty. As explained below, Petitioner fails to demonstrate ineffective assistance of counsel.
1. Standard
“A court considering a claim of ineffective assistance must apply a ‘strong presumption' that counsel's representation was within the ‘wide range' of reasonable professional assistance.” Harrington v. Richter, 562 U.S. 86, 104 (2011) (quoting Strickland v. Washington, 466 U.S. 668, 689 (1984)). A petitioner's burden when bringing an ineffective assistance claim “is not insurmountable” but “is a heavy one.” Chandler v. United States, 218 F.3d 1305, 1314 (11th Cir. 2000). To prevail on a claim of ineffective assistance of counsel, a petitioner must establish, by a preponderance of the evidence, that his attorney's performance was deficient and that he was prejudiced by the inadequate performance. Strickland, 466 U.S. at 687; Chandler, 218 F.3d at 1312-13.
To establish deficient performance, a petitioner must prove their counsel's performance “was unreasonable under prevailing professional norms and that the challenged action was not sound strategy.” Kimmelman v. Morrison, 477 U.S. 365, 384 (1986). To show that counsel's performance was unreasonable, a petitioner must establish that no competent counsel would have taken the action in question. Van Poyck v. Fla. Dep't of Corrs., 290 F.3d 1318, 1322 (11th Cir. 2002) (per curiam). There is a strong presumption that the challenged action constituted sound trial strategy. Chateloin v. Singletary, 89 F.3d 749, 752 (11th Cir. 1996).
To satisfy the prejudice prong, a petitioner must show there is a reasonable probability that, but for counsel's inadequate representation, “the result of the proceeding would have been different.” Meeks v. Moore, 216 F.3d 951, 960 (11th Cir. 2000) (quoting Strickland, 466 U.S. at 694). If a petitioner fails to establish he was prejudiced by the alleged ineffective assistance, a court need not address the performance prong of the Strickland test. See Holladay v. Haley, 209 F.3d 1243, 1248 (11th Cir. 2000).
Challenges to guilty pleas based on ineffective assistance of counsel are subject to the two-part Strickland test. Hill v. Lockhart, 474 U.S. 52, 58 (1985). A petitioner may only attack the “voluntary and intelligent character of the guilty plea.” Id. at 56-57. A petitioner may establish deficient performance by demonstrating that counsel's advice was not within the “range of competence demanded of attorneys in criminal cases.” McMann v. Richardson, 397 U.S. 759, 771 (1970). A petitioner must satisfy the prejudice prong by demonstrating 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.” Hill, 474 U.S. at 59; see also Martin v. United States, 949 F.3d 662, 667 (11th Cir. 2020). Further, a petitioner must also “convince the court that a decision to reject the plea bargain would have been rational under the circumstances.” Padilla v. Kentucky, 559 U.S. 356, 372 (2010); see Diveroli v. United States, 803 F.3d 1258, 1265 (11th Cir. 2015) (affirming denial of motion to vacate because “it would not have been rational for [the petitioner] to reject his plea bargain”). Failure to establish prejudice by the petitioner does not require the Court to address the performance prong of the Strickland test. See Hill, 474 U.S. at 59; Holladay, 209 F.3d at 1248.
2. Sentencing
Petitioner raises four arguments related to his sentencing. He argues counsel did not object to (1) his status as a career offender, (2) the two-level firearm enhancement, (3) the quantity of pure methamphetamine, and (4) his criminal history points. Each argument lacks merit and is addressed, in turn, below.
a. Career Offender Status
Petitioner first argues that because counsel did not object to his status as a career offender, he was prejudiced as to the length of his sentence.Mot. to Vacate 6-13. Although the Government did assert at the change of plea hearing that Petitioner qualified as a career offender for purposes of sentencing, Plea Tr. 23, the USPO determined, after investigation, that Petitioner did not qualify for that status. PSR ¶ 40. The Government did not object to the PSR, nor did they object at the sentencing hearing. PSR Addendum; Sent'g Tr. 5-6. The Court agreed with the PSR and calculated Petitioner's guideline range under criminal history Category V. See Minute Sheet, ECF No. 49; Sent'g Tr. 22. Thus, Petitioner's argument lacks merit, because he was not sentenced as a career offender. See id. Counsel has no duty to raise a meritless argument. See Strickland, 466 U.S. at 687-91; see also Denson v. United States, 804 F.3d 1339, 1342 (11th Cir. 2015). Accordingly, counsel was not ineffective as to this issue.
Career offender status pursuant to U.S.S.G. §4b1.1 carries greater penalties for defendants, as their guideline range is automatically moved to the highest criminal history category of VI.
b. Firearm Enhancement
Petitioner next argues that, had counsel objected to the two-level firearm enhancement at sentencing, he would not have received this enhancement.Mot. to Vacate 20-22; see U.S.S.G. §2d1.1(b)(1). Although counsel did not object to the enhancement in the PSR, she did object at the sentencing hearing. Sent'g Tr. 6. Counsel articulated several arguments as to why the enhancement should not apply and preserved the argument for appeal. Id. at 6-14. The District Judge overruled the objection, stating, “I'm unable to conclude that it's clearly improbable that the gun was connected to the drug offense.” Id. at 13-14. Petitioner's argument lacks merit because counsel did, in fact, object to the enhancement. Sent'g Tr. 13-14; see, e.g., Cruz v. United States, No. W-99-CR-013, 2005 WL 8159510, at *2 (W.D. Tx. Nov. 1, 2005) (denying ineffective assistance of counsel claim on failure to object because counsel did object and was overruled). Thus, counsel was not ineffective as to this issue.
This enhancement applies when a defendant convicted of a drug trafficking offense is found to have possessed a dangerous weapon, see U.S.S.G. §2D1.1(b)(1), unless it is “clearly improbable that the weapon was connected with the offense.” Id. at n. (11)(A). In this case, the enhancement moved Petitioner's base level offense from 29 to 31. Sent'g Tr. 13.
c. Quantity of Actual Methamphetamine
Petitioner next argues that counsel should have objected to the PSR's calculation of actual methamphetamine because he should have been sentenced for a mixture as opposed to actual methamphetamine. Mot. to Vacate 13-20; Am. Mot. 2-4. For purposes of sentencing, methamphetamine is quantified based on purity or weight-whichever results in the greater sentence. See U.S.S.G. §2D1.1(c), n. B; see also United States v. Baez Perez, 515 F. App'x. 866, 867-68 (11th Cir. 2013) (per curiam). A quantity of actual methamphetamine between 150-500 grams results in a base offense level of 32. See U.S.S.G. §2D1.1(c)(4). Petitioner stipulated in the plea agreement that he possessed and intended to distribute methamphetamine with a net weight of 498.73 grams and a purity of 72% +/- 5%, resulting in 334.15 grams of actual methamphetamine. Plea Tr. 20-22; Plea Agreement 10. The PSR concluded the purity of the methamphetamine was 72%, resulting in 359.08 grams of actual methamphetamine. PSR ¶ 12. The Court used the slightly lower plea agreement number in sentencing. Sent'g Tr. 22. Regardless, both calculations are well above the threshold of 150 grams for a base offense level of 32. See U.S.S.G. §2D1.1(c)(4).
“When a defendant pleads guilty, his declarations under oath carry a strong presumption of truth.” Cedeno-Gonzalez v. United States, 757 Fed.Appx. 868, 870 (11th Cir. 2018) (per curiam) (citing Lee v. United States, 137 S.Ct. 1958, 1967 (2017)). At the plea hearing, under oath, Petitioner informed the Court he had read the plea agreement and gone over it with counsel, confirmed he had signed the agreement and the attached statement, and stated he was entering into the plea freely and voluntarily. Plea Tr. 7-24. Petitioner further agreed he was completely satisfied with the advice and representation of his counsel. Id. at 13. Based on Petitioner's desire to plead guilty, counsel was reasonable in not objecting to the quantity of methamphetamine. See Strickland, 466 U.S. at 690-91 .
To the extent that Petitioner asserts counsel was ineffective for not objecting to the calculation of methamphetamine, he has failed to demonstrate prejudice. See id. at 694. Petitioner states he wanted counsel to raise certain policy arguments against the drug weight calculation. Mot. to Vacate 13-14. Counsel could have raised these arguments in an objection, but Petitioner fails to demonstrate that there is a reasonable probability of a different or more favorable outcome if she had, given the quantity of methamphetamine met the threshold amount under any calculation. See Meeks, 216 F.3d at 960; see also Borbas v. United States, No. 1:13-CR-0025-SCJ-JFK-6, 2018 WL 5984860, at *12 (N.D.Ga. Oct. 16, 2018), recommendation adopted, 2018 WL 5983018, at *1-2 (N.D.Ga. Nov. 14, 2018). There is no basis for Petitioner's argument either in the Eleventh Circuit or in the Guidelines. See generally Baez Perez, 515 F. App'x. at 867-68. Accordingly, counsel was not ineffective as to this issue.
d. PSR Interview
Petitioner's final argument related to sentencing is that counsel's failure to appear at the PSR interview and allegedly only reviewing the PSR with him for “180-seconds” caused inaccuracies to be included in the report-namely the calculation of his criminal history points.Mot. to Vacate 24. Although counsel indicated she would appear at the PSR interview and failed to appear, this was not a critical stage of the criminal proceedings where representation is ensured by the Sixth Amendment. See, e.g., United States v. Simpson, 904 F.2d 607, 611 (11th Cir. 1990). Further, when asked by the Court at the sentencing hearing whether Petitioner had reviewed the PSR, discussed the PSR with counsel, and understood the PSR, Petitioner responded affirmatively to each question, under oath. Sent'g Tr. 5.
Petitioner also rehashes the firearm enhancement, drug quantity, and career offender arguments in this section, but those have already been dispensed with in the preceding paragraphs.
Petitioner alleges there were two errors in his criminal history calculation to which counsel should have objected, which would have resulted in nine criminal history points (Category IV) as opposed to twelve (Category V). Mot. to Vacate 23-25. Relying on U.S.S.G. § 4A1.2(c)(1), Petitioner first asserts he should not have been assessed one point for a misdemeanor conviction for possession of marijuana and possession of drug related objects because he was not sentenced to more than one year of probation or at least 30 days' imprisonment. Mot. to Vacate 23-24. Possession of marijuana and drug related objects, however, are not crimes listed in § 4A1.2(c)(1) for which that requirement applies. Thus, he was properly assessed one point for a misdemeanor offense under U.S.S.G. §4A1.1(c). Petitioner also contends he was improperly assessed two points for committing an offense while under probation pursuant to U.S.S.G. §4A1.1(d) because his probation officer had released him from probation and informed him he had satisfied the probation portion of his sentence. Mot. to Vacate 24-25; PSR ¶ 39. The record reveals Petitioner was eleven years into a 15-year sentence, PSR ¶ 36, and five years into a 7-year sentence at the time of the offense. PSR ¶ 38. There is no evidence to support Petitioner's argument he had been released from probation. Moreover, even if the two-point addition was error, he would still have a criminal history score of ten and remain in criminal history category V. See U.S.S.G. Sent'g Table. Therefore, even assuming counsel was deficient, Petitioner cannot show prejudice.
The Category V range in the Guidelines is 10-12 points.
3. Direct Appeal
Petitioner raises two arguments that he believes led to the dismissal of his appeal: that counsel (1) failed to communicate with him during the appeals process, which prevented counsel from including arguments he wanted raised, and (2) raised a meritless argument. Mot. to Vacate 2-6. The record reveals Petitioner timely filed his pro se notice of appeal (ECF No. 57), counsel was re-appointed to represent Petitioner on direct appeal (ECF 60), counsel ordered transcripts (ECF No. 63), and counsel filed a merits brief, arguing the same issue she argued at sentencing-that the 2-level firearm enhancement did not apply. Brief of Petitioner-Appellant, United States v. McBride, No. 21-13290-B (11th Cir. June 30, 2022). The Eleventh Circuit dismissed the appeal because of Petitioner's knowing and voluntary appeal waiver. 11th Cir. Op. 2-4.
a. Non-communication and failure to raise certain arguments
Petitioner first alleges counsel failed to communicate with him regarding his appeal, resulting in her failure to include certain arguments that he wanted raised. Mot. to Vacate 2-6. Defendants have a right to counsel to aid in the direct appeal of their criminal conviction. See Evitts v. Lucy, 469 U.S. 387 (1985); see also Heath v. Jones, 941 F.2d 1126, 1130 (11th Cir. 1991). To prove ineffectiveness of counsel on direct appeal, the petitioner must prove “counsel's performance was deficient and that his performance prejudiced the defense.” Heath, 941 F.2d at 1130 (citing Strickland, 466 U.S. at 687). To determine prejudice, the Court must perform a review of the merits of the claim to decide whether there is a “reasonable probability of success on appeal.” See Heath, 941 F.2d at 1132 (citing Cross v. United States, 893 F.2d 1287 (11th Cir. 1990)).
Assuming, arguendo, that counsel's failure to communicate constitutes deficient performance, Petitioner has failed to demonstrate prejudice, because there was not a reasonable probability of success on appeal due to the valid appeal waiver. 11th Cir. Op. 2-4; see Heath, 941 F.2d at 1132. Petitioner argues that had counsel included his desired arguments-those with which he had issue at sentencing-the outcome of the appeal would have been different.Mot. to Vacate 2-6. Irrespective of the valid appeal waiver, Petitioner cannot demonstrate his desired arguments related to the quantity of drugs and status as a career offender would have had a reasonable probability of success on appeal, as both of those arguments lack merit. See Heath, 941 F.2d at 1132; see also Card v. Dugger, 911 F.2d 1494, 1520 (11th Cir. 1990) (“Counsel cannot be labeled ineffective for failing to raise issues [on appeal] which have no merit.”). Therefore, counsel was not ineffective as to this issue.
Here, Petitioner refers to the already discussed issues of the drug quantity and career offender status.
b. Raising a “meritless” argument
Petitioner's final argument related to his direct appeal is that the 38-page brief counsel filed challenging the application of the 2-level firearm enhancement was a “‘meritless claim,' that even if granted, would not have gotten the petitioner any relief.” Mot. to Vacate 6. This “meritless claim,” however, is the same claim Petitioner believes counsel should have objected to at sentencing. Mot. to Vacate 21-24. Contrary to Petitioner's belief, had the argument been successful, he would have had a 2-level reduction in his base offense level. See U.S.S.G. §2D1.1(b)(1). Counsel made a valid argument that she had preserved on appeal. Therefore, counsel was not ineffective as to this issue. See Watkins v. United States, 887 F.Supp.2d 833, 849 (C.D. Ill. 2012) (determining that counsel adequately presenting an available argument on appeal and ultimately losing is not grounds for ineffective assistance of counsel).
4. Advice to Plead Guilty
Petitioner's final argument is that counsel was ineffective in advising him to plead guilty and waive his right of appeal because she “misadvised [Petitioner] that he was a career offender,” and she did not object when the Government alleged that he would qualify as a career offender at the change of plea hearing. Am. Mot. 4. Petitioner argues that these errors led to his guilty plea and allowed the Court to paint a negative picture of him as a career offender. Id. Aside from the fact that Petitioner was neither sentenced as a career offender, nor was considered a career offender by either the Court or Probation, nowhere in Petitioner's motion to vacate does he allege that he would not have pleaded guilty and would have insisted on going to trial. Am. Mot. 2-4; see Hill, 474 U.S. at 59; see also Martin, 949 F.3d at 667.
Further, Petitioner cannot demonstrate that it would have been rational for him to reject the plea deal under the circumstances. See Padilla, 559 U.S. at 372; Diveroli, 803 F.3d at 1265 (comparing the favorability of the plea bargain to the petitioner's sentencing exposure in the event of rejection and “near-certain conviction”). Had Petitioner elected to proceed to trial under the original indictment, he would have exposed himself to a minimum sentence of 10 years to life under Count Three, 18 U.S.C. § 841(b)(1)(A), and a statutory mandatory minimum of 5 years as a consecutive sentence for Count Four, 18 U.S.C. §924(c)(1)(A). Indictment 2-3. The Government also notes that, if it had filed the requisite pretrial notice of qualifying convictions under 18 U.S.C. § 924(e), that would have subjected Petitioner to a statutory range of a mandatory minimum of 15 years to life imprisonment if convicted of either Counts One or Two. Resp. to Mot. to Vacate. 22, n.8; Indictment 1-2.
By pleading guilty to a single count of possession and intent to distribute methamphetamine under 21 U.S.C. § 841(b)(1)(C), Petitioner's sentencing exposure was capped at twenty-years with a guideline range of 168-210 months due to his three-level reduction for acceptance of responsibility and guilty plea. On the contrary, if he were convicted at trial of that same offense, his Guidelines range would have been 235-293 months imprisonment without the three-level reduction. Like in Diveroli, the record establishes that Petitioner faced overwhelming evidence of guilt that he attempted to sell methamphetamine to a law enforcement officer. See Diveroli, 803 F.3d at 1265. Petitioner has failed to establish prejudice; therefore, the Court recommends this claim be denied. See Hill, 474 U.S. at 59.
II. Certificate of Appealability
Rule 11(a) of Rules Governing Section 2255 Cases in the United States District Courts provides that “[t]he district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant.” A certificate of appealability may issue only if the applicant makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). If a court denies a collateral motion on the merits, this standard requires a petitioner to demonstrate that “reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). When a court denies a collateral motion on procedural grounds, this standard requires a petitioner to demonstrate that “jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right, and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Id. at 478. Petitioner cannot meet either of these standards and, therefore, a certificate of appealability in this case should be denied.
CONCLUSION
For the foregoing reasons, it is recommended that Petitioner's motion and amended to vacate his sentence (ECF Nos. 77, 79) under 28 U.S.C. § 2255 be DENIED. Additionally, a certificate of appealability should be denied. Pursuant to 28 U.S.C. § 636(b)(1), the parties may serve and file written objections to this Recommendation, or seek an extension of time to file objections, within fourteen (14) days after being served with a copy hereof. The district judge shall make a de novo determination of those portions of the Recommendation to which objection is made. All other portions of the Recommendation may be reviewed for clear error.
The parties are hereby notified that, pursuant to Eleventh Circuit Rule 3-1, “[a] party failing to object to a magistrate judge's findings or recommendations contained in a report and recommendation in accordance with the provisions of 28 U.S.C. § 636(b)(1) waives the right to challenge on appeal the district court's order based on unobjected-to factual and legal conclusions if the party was informed of the time period for objecting and the consequences on appeal for failing to object. In the absence of a proper objection, however, the court may review on appeal for plain error if necessary in the interests of justice.”
SO RECOMMENDED.