Opinion
Cause No. CR 18-15-H-SEH Cause No. CV 21-13-H-SEH
05-19-2021
UNITED STATES OF AMERICA, Plaintiff/Respondent, v. JEREMY JAMES RUMMEL, Defendant/Movant.
ORDER
Defendant/Movant Jeremy James Rummel, a federal prisoner proceeding pro se, has moved to vacate, set aside, or correct his sentence. The motion will be liberally construed.
See 28 U.S.C. § 2255(a).
See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); Rishor v. Ferguson, 822 F.3d 482, 495 (9th Cir. 2016).
Rummel asserts ineffective assistance of counsel. Facts sufficient to support an inference (1) that counsel's performance fell below an objective standard of reasonableness, and (2) that there is "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different" must be alleged to warrant further proceedings.
See Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984).
Rummel was designated a career offender under the Sentencing Guidelines. The designation applied because he had two prior felony convictions for a "controlled substance offense." Courts employ a categorical approach, looking only to the elements of the statute underlying the conviction, not to the facts of the offense to determine whether a prior conviction counts as a controlled substance offense under the Guidelines.
See U.S.S.G. §§ 4B1.1, 1.2 (Nov. 1, 2018); Presentence Report ¶¶ 28, 45-46, 50.
See U.S.S.G. § 4B1.2(b) & rant n.1.
See United States v. Simmons, 782 F.3d 510, 513 (9th Cir. 2015); United States v. Lee, 704 F.3d 785, 788 (9th Cir. 2012).
Counsel argued that a federal conviction for conspiracy to manufacture methamphetamine was not a controlled substance offense. In fact it is.
See 21 U.S.C. §§ 846, 841(a); Order (Doc. 148) at 2-3.
Rummel was also convicted of criminal distribution of dangerous drugs, oxycodone, in violation of Mont. Code Ann. § 45-9-101(1) in 2009. A controlled substance offense categorically includes solicitation.
See Doc. 149-1 at 5-6, 20-21; see also Ragasa v. Holder, 752 F.3d 1173, 1176 (9th Cir. 2014); Coronado v. Holder, 759 F.3d 977, 983-85 (9th Cir. 2014) (following Descamps v. United States, 570 U.S. 254, 263-64 & n.2 (2013)). The focus remains on elements, not conduct.
See Am. Presentence Report ¶ 46.
See Mont. Crim. Jury Instr. No. 9-101; Mont. Code Ann. §§ 45-9-101(2), 50-32-101(6), (20), 50-32-224(1)(a)(xv) (2009) (now (xvi)); see also 21 U.S.C. § 812(c); 21 C.F.R. § 1308.12(b)(1)(xiv) (Oct. 30, 2020); 39 Fed. Reg. 22140, 22142 (June 20, 1974) (classifying oxycodone as Schedule II controlled substance).
Counsel's assistance was neither unreasonable nor prejudicial. Reasonable jurists may disagree about the method or outcome of categorical analysis, but all would agree that counsel's performance was reasonable under case law at the time of Rummel's sentencing.
A certificate of appealability is unwarranted.
See 28 U.S.C. § 2253(c)(2); Miller-El v. Cockrell, 537 U.S. 322, 327 (2003) (citing Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
ORDERED:
1. Rummel's motion to vacate, set aside, or correct the sentence under 28 U.S.C. § 2255 is DENIED.
Doc. 146.
2. A certificate of appealability is DENIED. The clerk shall immediately process the appeal if Rummel files a Notice of Appeal.
3. The clerk shall ensure that all pending motions in this case and in CV 21-13-H-SEH are terminated and shall close the civil file by entering judgment in favor of the United States and against Rummel.
DATED this 19th day of May, 2021.
/s/_________
Sam E. Haddon
United States District Court