Opinion
3:10-CR-00115-LRH-RAM
12-31-2013
UNITED STATES OF AMERICA, Plaintiff, v. AARON ROSS, Defendant.
ORDER
Before the Court is Defendant Aaron Ross's ("Ross") Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody. Doc. #119. The United States filed a Response (Doc. #125), to which Ross did not reply.
Refers to the Court's docket number.
I. Factual Background
On September 6, 2011, Defendant was convicted, following a jury trial, of two counts of transporting a minor across state lines for the purpose of prostitution in violation of 18 U.S.C. § 2423(a). Doc. #8; Doc. #98. The Court sentenced Ross to 168 months imprisonment, to be followed by 20 years of supervised release. Id. Ross appealed, and on September 14, 2012, the Ninth Circuit Court of Appeals affirmed his conviction and sentence in an unpublished opinion. United States v. Ross, 492 Fed. Appx. 808 (9th Cir. 2012). On September 13, 2013, Ross, acting pro se, filed the instant Motion before the Court. Doc. #119. The United States filed a Response on October 28, 2013. Doc. #125. Ross did not file a Reply.
II. Discussion
Ross asserts that his appellate counsel was ineffective because he failed to seek a stay of Ross's appeal pending the Supreme Court's adjudication of Alleyne v. United States, 133 S. Ct. 2151 (2013). See Doc. #119, p. 4. More specifically, Ross maintains that under Alleyne, the organizer, leader, manager or supervisor sentencing enhancement (U.S.S.G. § 3G1.1(c)), which the Court applied to his base offense level, should have been submitted to a jury and proven beyond a reasonable doubt. See id. at 5.
Pursuant to 28 U.S.C. § 2255, a prisoner may move the court to vacate, set aside, or correct a sentence if "the sentence was imposed in violation of the Constitution or laws of the United States, or . . . the court was without jurisdiction to impose such sentence, or . . . the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." 28 U.S.C. § 2255; 2 Randy Hertz & James S. Liebman, Federal Habeas Corpus Practice and Procedure § 41.3b (5th ed. 2005). To establish ineffective assistance of counsel, a petitioner must show that his counsel's performance was deficient and that the petitioner was prejudiced as a result of this performance. Strickland v. Washington, 466 U.S. 668, 687 (1984). In order to show prejudice, the petitioner "must then establish that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." United States v. Quintero-Barraza, 78 F.3d 1344, 1348 (9th Cir. 1995) (citing Strickland, 466 U.S. at 688-89).
Ross's interpretation of Alleyne is incorrect. In Alleyne, the Supreme Court held that under Apprendi v. New Jersey, 530 U.S. 466 (2000), "a fact increasing either end of the [sentencing] range produces a new penalty and constitutes an ingredient of the offense" and "must, therefore, be submitted to the jury and found beyond a reasonable doubt." 133 S. Ct. at 2160-63. The Supreme Court was careful, however, to note that their ruling "does not mean that any fact that influences judicial discretion must be found by a jury. We have long recognized that broad sentencing discretion, informed by judicial factfinding, does not violate the Sixth Amendment." Id. at 2163.
Here, the Court finds that its application of the organizer, leader, manager or supervisor sentencing enhancement (U.S.S.G. § 3G1.1(c)) to Ross's base offense level is wholly consistent with the broad discretion of a judge to select a sentence within the range authorized by law. In applying the aforementioned enhancement, the Court did not increase the prescribed mandatory minimum sentence, and thus Alleyne is inapplicable. Consequently, Ross cannot establish that his counsel's performance was deficient or that he was prejudiced as a result. Ross's Motion pursuant to 28 U.S.C. § 2255 is therefore without merit and shall be denied.
IT IS THEREFORE ORDERED that Ross's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (Doc. #119) is DENIED.
IT IS SO ORDERED.
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LARRY R. HICKS
UNITED STATES DISTRICT JUDGE