United States of America v. Denmark

Full title: UNITED STATES OF AMERICA, PETITIONER v. MICHAEL GLENN DENMARK, RESPONDENT

Court: United States District Court, W.D. Kentucky, Louisville

Date published: Apr 27, 1999

Criminal Action No. 3:95CR-70-S; Civil Action No. 3:98CV-P674-S (W.D. Ky. Apr. 27, 1999)

Opinion

Criminal Action No. 3:95CR-70-S; Civil Action No. 3:98CV-P674-S

April 27, 1999.

MEMORANDUM OPINION

CHARLES R. SIMPSON III, Chief Judge, United States District Court.

This matter is before the court on motion of the petitioner, Michael Glenn Denmark ("Denmark"), pro se, to vacate, set aside, or correct his sentence, pursuant to 28 U.S.C. § 2255.

In December of 1995, Denmark was tried and convicted on a two count indictment for possession of cocaine and cocaine base with the intent to distribute it, in violation of 21 U.S.C. § 841(a)(1), and possession of marijuana in violation of 21 U.S.C. § 844.

On April 3, 1996, a sentencing hearing was held and Denmark was sentenced to a term of imprisonment of 360 months, and 5 years supervised release. His conviction was affirmed by the United States Court of Appeals for the Sixth Circuit on August 13, 1997.

Denmark has filed this collateral appeal alleging 1) that this court lacked jurisdiction over the alleged acts with which he was charged; 2) that there was insufficient evidence presented at sentencing to establish that the substance for which he received an enhanced sentence was "crack" cocaine; and 3) that his counsel was ineffective. We will address these issues seriatim.

I.

Denmark has challenged the jurisdiction of the court over offenses delineated in the Controlled Substances Act, 21 U.S.C. § 801 et seq. This contention is without merit. The Sixth Circuit has held that

. . . drug trafficking is an "economic enterprise" that substantially affects interstate commerce in numerous clear ways. Each individual instance of cocaine dealing, for example, represents the end point of a manufacturing, shipping, and distribution network that is interstate — and international — in nature. In fact, Congress included specific findings to that effect when it passed the Controlled Substances Act [citations omitted]. For these reasons, this circuit upheld federal criminalization of intrastate drug dealing under the Commerce Clause before Lopez, see United States v. Scales, 464 F.2d 371, 375 (6th Cir. 1972), as has every jurisdiction that has considered the issue after Lopez [citations omitted]. Lopez does not give us cause to question Congress's power to regulate an activity as clearly commercial as drug trafficking.

United States v. Tucker, 90 F.3d 1135, 1140 (6th Cir. 1996).

II.

Denmark has challenged the sufficiency of the evidence at sentencing to support the finding that he possessed with intent to distribute "crack" cocaine.

This challenge was not raised by Denmark either at sentencing or on appeal.¹ We find guidance in the opinions of the fifth and ninth circuits in this matter:

1 Denmark contends that his counsel was ineffective in failing to make this argument at sentencing. His challenge to the ineffectiveness of his counsel on this basis is addressed later in this opinion, and the merits are addressed therein.

We have consistently held that a § 2255 petitioner cannot challenge nonconstitutional sentencing errors if such errors were not challenged in an earlier proceeding. United States v. Schlesinger, 49 F.3d 483, 485 (9th Cir. 1995); United States v. Keller, 902 F.2d 1391, 1393 (9th Cir. 1990). Petitioners waive the right to object in collateral proceedings unless they make a proper objection before the district court or in a direct appeal from the sentencing decision . . . The precise question at issue here has been addressed by the Court of Appeals for the Fifth Circuit in United States v. Seyfert, 67 F.3d 544 (5th Cir. 1995). There, as here, the petitioner brought a § 2255 motion challenging his sentence on the grounds that the government has failed to meet its burden of proving that the substance involved was D-methamphetamine. The court rejected this collateral attack because the issue had not been raised at sentencing or on direct appeal. Seyfert, 67 F.3d at 546. We find the Seyfert analysis persuasive and consistent with our holdings in Schlesinger and Keller. Because McMullen failed to raise any objection regarding the type of methamphetamine, either at sentencing or on direct appeal, he is barred from raising the issue in a § 2255 motion.

United States v. McMullen, 98 F.3d 1155, 1157 (9th Cir. 1996), cert. denied, 520 U.S. 1269, 117 S.Ct. 2444, 138 L.Ed.2d 203 (1997).

We conclude that his objection to the sufficiency of the evidence at sentencing has been waived.

III.

Denmark has alleged that it was improper to include a felony conviction which occurred before the passage of the Federal Sentencing Guidelines in calculating his sentence. This contention has been rejected by the Sixth Circuit in United States v. Ykema, 887 F.2d 697, 700 (6th Cir. 1989)²:

2 This issue was not raised at sentencing or on appeal and is therefore waived under the principle enunciated in United States v. McMullen, 98 F.3d 1155, 1157 (9th Cir. 1996), cert. denied, 520 U.S. 1269, 117 S.Ct. 2444, 138 L.Ed.2d 203 (1997). However, the court will address the argument on the merits in the interest of a fulsome review.

Previously, courts have held that an increase in sentence for a repeat offense does not violate the ex post facto clause simply because the first offense was committed before the passage of the repeat offender law. United States v. Ilacqua, 562 F.2d 399, 404 (6th Cir. 1977) (citing Gryger v. Burke, 334 U.S. 728, 68 S.Ct. 1256, 92 L.Ed. 1683 (1948)). This supports the proposition that augmenting punishment for a later offense, based on acts committed before a law is passed, does not violate the ex post facto clause. That is precisely the situation in the present case. Certain criminal acts committed by the appellant before the passage of the enhancement law were used to enhance the penalty for a crime occurring after the passage of the law. Such a rule is justified, as are repeat offender laws, because the heavier penalty for the offense is not an additional punishment for the earlier behavior but is a statutorily authorized punishment for criminal conduct that has occurred after the passage of the law. Furthermore, policy dictates allowing the use of all relevant information for sentencing under the new guidelines. Omitting all reference in sentencing to information that occurred before the effective date of the guidelines would cripple the use of the guidelines to bring conformity to punishment for like criminal conduct.

See also, United States v. LaSalle, 948 F.2d 215, 217-18 (6th Cir. 1991). Additionally, Denmark's contention that the court should have departed downward based upon the nature of his prior convictions is without merit, as the judgment regarding departure is discretionary. The Sixth Circuit has instructed that "it should be assumed `that the court, in the exercise of its discretion, found downward departure unwarranted'." United States v. Byrd, 53 F.3d 144, 145 (6th Cir. 1995)(quoting, United States v. Barrera-Barron, 996 F.2d 244, 245 (10th Cir.), cert. denied, 510 U.S. 937, 114 S.Ct. 358, 126 L.Ed.2d 321 (1993)).

IV.

Denmark has claimed that he received ineffective assistance of counsel. A defendant asserting an ineffective assistance of counsel claim generally must show not only that defense counsel's performance was deficient, but also that this deficient performance prejudiced the defense. Wong v. Money, 142 F.3d 313, 319 (6th Cir. 1998) (quoting, Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984)). As noted in Strickland, the court must begin from the strong presumption that counsel rendered adequate assistance and made all decisions in the exercise of reasonable professional judgment. Strickland, 104 S.Ct. at 2066. In order to establish ineffective assistance of counsel, Denmark must show that "counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment," and that "there exists a reasonable probability that, absent counsel's unprofessional errors, the results of the proceeding would have been different." Strickland, 104 S.Ct. at 2064.

Denmark has suggested that his counsel's failure to raise the issue of lack of jurisdiction constituted ineffective assistance. The court has determined earlier in this opinion that the jurisdictional issue is without merit. Therefore, Denmark cannot meet the "prejudice" prong of the Strickland test. Had this assertion been made by counsel, it would have been ineffectual, and thus the proceeding would not have been impacted by it.

Denmark has next asserted that counsel was ineffective in failing to raise the issue concerning the identification of the substance at sentencing. The court concludes that Denmark's argument fails on the merits, and he cannot, therefore, establish prejudice.

There was sufficient evidence to support the finding that the substance in question was "crack" cocaine. Two experienced officers and a forensic chemist identified the substance. The officers used the street term "crack" in identifying it, as did the lay witnesses. The chemist described the chemical properties of the substance, distinguishing it as base rather than powder. The substance itself was introduced into evidence. We conclude that there was sufficient evidence to support the factual determination concerning the identity of the substance at sentencing. See, United States v. Jones, 159 F.3d 969, 981-82 (6th Cir. 1998).

Denmark did not take the stand in his own defense at trial. He has asserted that his counsel was ineffective in advising him in this course of action. He claims that he would have testified that he was in Louisville in June of 1995 to pick up his daughter and bring her to his home in Florida. He also contends that counsel should have called his sister, his nephew, and his daughter's mother as witnesses because they would have provided similar testimony.

The testimony regarding transportation of Denmark's daughter would not have contradicted any of the trial evidence concerning possession and transportation of the drugs. Further, on cross-examination of Latrisha Clark, the passenger in Denmark's car at the time of the arrest, counsel elicited testimony that Denmark was a frequent visitor to Louisville, and that he had an eleven-year-old daughter who resided there. Thus, the jury heard that Denmark had reasons other than the alleged drug dealing for being in Louisville.

Denmark, a previously convicted felon, was advised by his counsel not to take the stand, and his family members were not called as witnesses. We find that such a decision falls well within the broad category of sound trial strategy, and we have been shown nothing to call counsel's judgment into question in hindsight.

Finally, the record belies Denmark's argument that his counsel failed to adequately prepare for trial. Counsel's cross-examination of the government witnesses evidences his understanding of the issues and adequate preparedness for trial.

The court concludes that Denmark has not met his burden to establish ineffective assistance by his counsel resulting in prejudice to the defense of his case.

For the reasons set forth herein above, the motion of Denmark to vacate, set aside, or correct his sentence must be denied. A separate order will be entered this date in accordance with this opinion.