Opinion
Case No. 99-40069-02, 02-3255-RDR
November 14, 2002.
MEMORANDUM AND ORDER
This matter is presently before the court upon defendant's pro se motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255. Having carefully reviewed the motion and the files and records in this case, the court is now prepared to rule.
The defendant has also filed the following additional motions: (1) motion to produce; (2) motion for evidentiary hearing; and (3) motion for appointment of counsel. For the reasons stated in this memorandum and order, the court shall deny all of these motions. The court has determined that the files and records in this case conclusively show that the defendant is not entitled to relief.
I.
On September 8, 1999, the defendant was indicted along with five co-defendants in a nineteen-count indictment. The defendant was charged with conspiracy to distribute in excess of one kilogram of a mixture or substance containing a detectable amount of methamphetamine in violation of 21 U.S.C. § 846 [Count 1], attempted distribution of approximately 1,261 grams of a mixture or substance containing a detectable amount of methamphetamine in violation of 21 U.S.C. § 846 [Count 17] and attempted intimidation of a witness in violation of 18 U.S.C. § 1512(a)(1)(b)(1) [Count 18]. On February 23, 2000, the defendant entered guilty pleas pursuant to a plea agreement to Count 1 and Count 18. Following his guilty pleas, a presentence report was prepared for the court. The defendant's counsel raised a variety of objections to it. The government filed a motion for downward departure pursuant to U.S.S.G. § 5K1.1. The court denied the defendant's objections and granted the government's motion. United States v. Butler, 2000 WL 1279496 (D.Kan. 2000). The court sentenced the defendant to a term of imprisonment of 204 months on Count 1 and 120 months on Count 18 with the sentences to run concurrently. Id. The defendant appealed his sentence. On July 18, 2001, the Tenth Circuit affirmed. United States v. Butler, 12 Fed.Appx. 664, 2001 WL 811904 (10th Cir.), cert. denied, 122 S.Ct. 309 (2001). The defendant filed the instant motion on August 16, 2002.
II.
In this motion, the defendant raises two grounds for relief. First, he argues the court erred in enhancing his offense level by two levels for use of a firearm pursuant to U.S.S.G. § 2D1.1(b)(1). Second, he contends he was denied effective assistance of counsel by his district court attorney and his appellate attorney in failing to raise three sentencing issues. Specifically, he asserts that his appellate counsel was ineffective in failing to raise the aforementioned firearm issue on appeal. He next argues that his district court counsel and appellate counsel were ineffective in failing to argue that (1) his offense level was improperly enhanced by two levels for obstruction of justice; and (2) the amount of drugs attributed to him was incorrect.
An evidentiary hearing must be held on a § 2255 motion "unless the motion and files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255; United States v. Galloway, 56 F.3d 1239, 1240 n. 1 (10th Cir. 1995). To be entitled to an evidentiary hearing, the defendant must allege facts which, if proven, would entitle him to relief. See Hatch v. Oklahoma, 58 F.3d 1447, 1471 (10th Cir. 1995), cert. denied, 517 U.S. 1235 (1996). "[T]he allegations must be specific and particularized, not general or conclusory." Id. The court finds that a hearing on the defendant's motion is not necessary. The court finds that the materials in the file demonstrate that a hearing is not required.
The claims raised by the defendant are procedurally barred because they were not raised in his direct appeal. Rogers v. United States, 91 F.3d 1388, 1391 (10th Cir. 1996). Therefore, we may not consider these claims unless the defendant establishes cause for his failure to raise the issues earlier and actual prejudice as a result, or a fundamental miscarriage of justice if we do not consider it. United States v. Cook, 997 F.2d 1312, 1320 (10th Cir. 1993). We may sua sponte raise the procedural bar. Id. Ineffective assistance of counsel can excuse procedural default but "only if the error amounts to constitutionally ineffective assistance of counsel." Rogers, 91 F.3d at 1391. Therefore, we turn to defendant's claims of ineffective assistance of counsel based on his counsel's failure to raise the sentencing arguments at trial and on appeal.
III.
"The benchmark for judging any claim of ineffectiveness must be whether the 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 v. Washington, 466 U.S. 668, 686 (1984). To obtain relief on an ineffective assistance of counsel claim, a defendant must satisfy a two-pronged test. First, he "must show that counsel's representation fell below an objective standard of reasonableness." Id. at 688. Second, he must show "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. To meet the first prong, a defendant must show that defense counsel's performance was neither reasonable under prevailing professional norms nor sound trial strategy. To meet the second prong, petitioner must show a reasonable probability that, but for the deficiencies in counsel's conduct, the result of the case would have been different. A probability is reasonable if it is sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 694. The court "may address the performance and prejudice components in any order, but need not address both if [the defendant] fails to make a sufficient showing of one." Cooks v. Ward, 165 F.3d 1283, 1292-93 (10th Cir. 1998), cert. denied, 120 S.Ct. 94 (1999) ; see also Davis v. Executive Director of Dept. of Corrections, 100 F.3d 750, 760 (10th Cir. 1996) (noting that court can proceed directly to prejudice without addressing performance), cert. denied, 520 U.S. 1215 (1997). "When a defendant alleges his appellate counsel rendered ineffective assistance by failing to raise an issue on appeal, we examine the merits of the omitted issue." United States v. Cook, 45 F.3d 388, 392 (10th Cir. 1995).
There is a strong presumption that counsel provided effective assistance of counsel, and the defendant has the burden of proof to overcome that presumption. United States v. Cronic, 466 U.S. 648, 658 (1984). "Judicial scrutiny of counsel's performance must be highly deferential." Strickland, 466 U.S. at 689. The reasonable-ness of the counsel's performance must be evaluated at the time of the alleged error. Kimmelman v. Morrison, 477 U.S. 365, 381 (1986). "For counsel's [decision] to rise to the level of constitutional ineffectiveness, the decision . . . must have been `completely unreasonable, not merely wrong, so that it bears no relationship to a possible defense strategy.'" Hatch, 58 F.3d at 1459 (quoting United States v. Ortiz Oliveras, 717 F.2d 1, 4 (1st Cir. 1983)). Neither hindsight nor success is the measure of the reasonableness of counsel's challenged conduct. Hoxsie v. Kerby, 108 F.3d 1239, 1246 (10th Cir.), cert. denied, 522 U.S. 844 (1997).
A.
The defendant has initially argued that his appellate counsel was ineffective because he failed to raise the firearm enhancement on appeal. He contends his counsel should have argued that it was clearly improbable that the hunting rifles found in his home were possessed or used during the conduct he pled guilty to in Count 1 of the indictment.
The court can proceed immediately to the prejudice prong of the ineffective assistance of counsel test. This issue was raised by trial counsel and thoroughly considered at sentencing. The court addressed the issue as follows:
[T]he defendant objects to the two-level enhancement for use of a firearm pursuant to U.S.S.G. § 2D1.1(b)(1). The defendant argues that the facts here show that the firearms were not connected with the instant offense. Specifically, he notes, in addition to the argument that the guns were in a location not connected to the instant offense, that the guns were (1) hunting rifles; (2) not owned by him; (3) kept in a locked safe in a basement while the key to the safe was kept upstairs; and (4) not loaded with ammunition. The government and the probation office contend that the enhancement should be applied here.
Section 2D1.1(b)(1) directs a district court to add two levels to a defendant's base offense "[i]f a dangerous weapon (including a firearm) was possessed" during certain drug crimes. U.S.S.G. § 2D1.1(b)(1). This enhancement "is designed to reflect the increased danger of violence when drug traffickers add firearms to the mix." United States v. Flores, 149 F.3d 1272, 1280 (10th Cir. 1998), cert. denied, 525 U.S. 1092 (1999). The government bears the burden of proving by a preponderance of the evidence that the gun was proximate to the drug offense. United States v. Lang, 81 F.3d 955, 964 (10th Cir. 1996). "Possession of a weapon in connection with a drug trafficking offense is established if the government proves by a preponderance of the evidence that a temporal and spacial relation existed between the weapon, the drug trafficking activity, and the defendant." Flores, 149 F.3d at 1280 (internal quotations omitted). The necessary nexus between the weapon, drug trafficking and defendant may be established by showing that "the weapon was located nearby the general location where drugs or drug paraphernalia are stored or where part of the transaction occurred." Id. (internal quotations omitted). "Once the government establishes that the weapon was possessed in proximity to the drugs or transaction, the burden shifts to the defendant to show it is clearly improbable that the weapon was related to the offense." Id. (internal quotations omitted).
The court has examined all of the evidence concerning this issue, and we conclude that the two-level enhancement under U.S.S.G. § 2D1.1(b)(1) is appropriate. The defendant has suggested that the enhancement should not be applied because the firearms were not located where the offense occurred. The defendant reads the conspiracy charge much too narrowly here. The defendant was charged with conspiracy to distribute methamphet-amine. The conspiracy extended beyond the incident at the airport on July 19, 1999. The evidence here supports the conclusion that there was a relationship between the firearms and the defendant's drug activity. Moreover, the court does not find that the other circumstances noted by the defendant render it clearly improbable that these guns were related to the conspiracy offense. The fact that these guns were hunting rifles or that they were unloaded is not dispositive for purposes of § 2D1.1(b)(1). See United States v. Gutierrez, 2000 WL 1089544 (10th Cir. 2000). Under all of the evidence here, we are persuaded that the firearms were proximate to the conspiracy offense. Accordingly, this objection is also denied.
At sentencing, the court found absolutely no merit to this argument. The court continues to find no merit to it. As suggested previously by the court, the evidence demonstrated that there was a relationship between the firearms and the defendant's drug activity. The defendant had been involved in the conspiracy charged in Count 1 since 1998. During that time, he had transported and received drugs on numerous occasions. He had also been involved in additional activities in support of the drug conspiracy such as renting vehicles, renting cellular telephones and assisting in the laundering of drug proceeds. The evidence showed that he used the area in his residence where the firearms were found as the base for his drug dealing operations. Because these firearms were found in this area, the enhancement set forth in U.S.S.G. § 2D1.1 was properly applied. The court finds no error in applying this enhancement. Moreover, the court finds that appellate counsel was not ineffective for failing to raise this issue on appeal.
B.
The defendant next asserts that his district court counsel and appellate counsel were ineffective in failing to argue that his offense level was improperly enhanced for obstruction of justice. He contends that his trial counsel and appellate counsel should have argued that the obstruction of justice enhancement should not have been applied because the obstruction did not occur during the drug conspiracy investigation.
The defendant's district court counsel raised a number of arguments concerning this enhancement at sentencing. The court rejected all of them. On appeal, the defendant's appellate counsel again raised them. The Tenth Circuit found no error in the court's rulings.
The instant issue was not specifically raised previously before the court, but there is little question of its frivolous nature. The records before the court show that Shawnee County Deputy Sheriff John Schrock, the law enforcement officer that the defendant attempted to intimidate, began his investigation of the defendant in November 1998. Most of the information containing Deputy Schrock's investigation is contained in an affidavit he prepared in support of the search warrant of the defendant's residence which was attached to the defendant's motion to suppress evidence filed on August 31, 1999. Deputy Schrock confirmed this information in testimony before this court during the hearing on the defendant's motion to suppress. The investigation of the defendant by Deputy Schrock continued until the defendant's arrest on July 19, 1999. The defendant attempted to intimidate Officer Schrock on March 1, 1999. There is no question that this contention lacks merit. Accordingly, we do not find that defendant's counsel was ineffective in failing to raise it.
C.
Finally, the defendant contends that his district court counsel and appellate counsel failed to object to the amount of drugs attributed to him as relevant conduct. The defendant argues that his offense level would have been two levels lower if the proper amount of drugs had been attributed to him.
The defendant's district court counsel did raise an issue concerning the amount of drugs attributable to the defendant as relevant conduct. This argument caused the court to review the entirety of the evidence concerning the amount of drugs attributable to the defendant. In the memorandum and order issued after sentencing, the court had the following to say about this issue:
Drug quantities attributable to a defendant convicted of a conspiracy are established "on the basis of the quantity of drugs which [the defendant] reasonably foresaw or which fell within `the scope' [of the defendant's] agreement with the conspirators." United States v. Roberts, 14 F.3d 502, 522 (10th Cir. 1993) (citations, quotations and emphasis omitted). For sentencing purposes, the government bears the burden of proving the quantity of drugs by a preponderance of the evidence. United States v. Hooks, 65 F.3d 850, 854 (10th Cir. 1995), cert. denied, 516 U.S. 1083 (1996). The district court may estimate the quantity provided the information underlying its estimate has "minimum indicia of reliability." United States v. Browning, 61 F.3d 752, 754 (10th Cir. 1995).
The court agrees with the findings and conclusions contained in the presentence report concerning the quantity of drugs. The evidence supports the conclusion that methamphetamine was the drug transported during the course of this conspiracy. The evidence further supports the conclusion reached concerning the amount of methamphetamine attributable to the defendant. If anything, the amount attributable to the defendant in the presentence report is low. In sum, the court denies this objection.
In considering the instant argument, the court has once again thoroughly considered the materials presented on the issue of the amount of drugs attributable to the defendant. Once again, there is little question that the figures determined by the court for the purposes of sentencing were low, if anything. Accordingly, we also find no merit to this argument. Again, we find that defendant's counsel was not ineffective in failing to raise this issue.
Even if we were to find merit to this argument, we do not find that the defendant's sentence would have changed. As we pointed out at sentencing, the court reduced the defendant's sentence based on the government's § 5K1.1 motion. Even if we reduced the defendant's offense level by two levels, we would still have only reduced his sentence to 204 months because we believed that this term of imprisonment was appropriate given the entirety of the circumstances.
IV.
In sum, the court finds no merit to any of the arguments raised by the defendant. Accordingly, the court shall deny the defendant's motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255.
IT IS THEREFORE ORDERED that defendant's motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255 (Doc. # 386) be hereby denied.
IT IS FURTHER ORDERED that defendant's motion for appointment of counsel (Doc. #387) be hereby denied.
IT IS FURTHER ORDERED that defendant's motion for evidentiary hearing (Doc. #388) be hereby denied.
IT IS FURTHER ORDERED that defendant's motion to produce (Doc. # 389) be hereby denied.
IT IS SO ORDERED.