Opinion
Case No. 99-40091-JAR.
June 25, 2010
MEMORANDUM AND ORDER
Before the Court are defendant Paul Edward Davis' pro se Motion for Relief Pursuant to 18 U.S.C. 3582(c)(2) in Conjunction with USSG 1B1.10 (Doc. 114) and pro se Motion Ineffective Assistance of Counsel, USSG § 1B1.10(A)(3), and Application Note 1(B), a Full Resentencing Hearing (Doc. 115). On May 13, 2008, James Chappas was appointed to represent defendant. On February 26, 2010, Mr. Chappas notified the Court that he had reviewed defendant's motions, discussed the motions with defendant, and that they are ripe for review. The Court has reviewed defendant's motions and counsel's submission and is prepared to rule. As explained more fully below, defendant's motions are granted in part and denied in part.
See Attachment A.
Procedural History
On June 1, 2000, a jury found defendant guilty of five counts of distribution and possession with intent to distribute crack cocaine within 1000 feet of a school. Defendant's sentence was calculated according to the then-mandatory Sentencing Guidelines. After all adjustments for relevant conduct were made, defendant was sentenced based on a total offense level of 34 and a criminal history category of IV. This total offense level, combined with defendant's criminal history category of IV, yielded an advisory Guidelines sentencing range of 210 to 262 months. Judge Dale E. Saffels sentenced defendant to 210 months' imprisonment, a sentence at the low end of the guidelines range. Defendant prosecuted a direct appeal; on July 16, 2001, the Tenth Circuit affirmed the conviction and sentence. After the Tenth Circuit denied defendant's motion for a rehearing en banc, he filed a petition for writ of certiorari with the United States Supreme Court, which was denied.
United States v. James, 257 F.3d 1173 (10th Cir. 2001).
Davis v. United States, 534 U.S. 1106, 122 S. Ct. 908, 151 L. Ed. 2d 876 (2002).
Defendant timely filed his first motion under 28 U.S.C. § 2255, which the Court denied on March 19, 2003. On April 21, 2003, defendant filed a "Motion for Relief from False Imprisonment," which the Court construed as a successive section 2255 motion and denied. The Court explained in that order, "[t]he only avenue by which defendant can file this second petition under § 2255 is to first obtain a certificate from the Tenth Circuit, authorizing this Court to consider his petition." On February 27, 2004, defendant again filed a "Motion for Relief" without satisfying the standards set forth in 28 U.S.C. § 2255. In its Order denying the motion, this Court quoted from an October 22, 2003 Order of the Tenth Circuit, which stated: "Any further effort by Mr. Davis to begin a collateral attack on this conviction without satisfying the standards set forth in § 2255 ¶ 8 may lead to the imposition of sanctions."
On December 14, 2004, defendant filed a fourth motion collaterally attacking his sentence based on the Supreme Court decisions in Blakely v. Washington and United States v. Booker. This Court construed the motion as an unauthorized successive motion under 28 U.S.C. § 2255, as it was his third motion since his original section 2255 motion and transferred it to the Tenth Circuit Court of Appeals in the interest of justice, pursuant to 28 U.S.C. § 1631.
542 U.S. 296 (2004).
543 U.S. 220 (2005).
Coleman v. United States, 106 F.3d 339, 341 (10th Cir. 1997). Since the time of the Court's decision, the Tenth Circuit clarified that 28 U.S.C. § 1631 is not a mandatory transfer rule and that the Court may, instead, dismiss the motion or petition for lack of jurisdiction. In re Cline, 531 F.3d 1249, 1251 (10th Cir. 2008).
In the instant motions, defendant argues that an amendment to the Guidelines, made subsequent to his re-sentencing, should apply to him and reduce his base offense level from 32 to 30. Defendant further argues that his counsel, Melody Evans, was ineffective because she did not inform him of a plea offer that would have resulted in eight years' custody. Finally, defendant requests a full re-sentencing hearing.
Discussion
In the instant motion, the defendant seeks a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2) based upon Amendment 706 to the Sentencing Guidelines. This amendment, which became effective November 1, 2007, lowered the threshold base offense level for drug offenses involving crack cocaine. It generally permits a two-level reduction in the base offense level set forth in U.S.S.G. § 2D1.1. 18 U.S.C. § 3582 provides that the Court may modify a term of imprisonment:
See U.S.S.G. App. C, Amend. 706 (2007).
in the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. 994(o), upon motion of the defendant or the Director of the Bureau of Prisons, or on its own motion, the court may reduce the term of imprisonment, after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.
Amendment 706 modified the Drug Quantity Table in U.S.S.G. § 2D1.1(c) downward two levels for crack cocaine offenses, effective November 1, 2007, and retroactive March 3, 2008. The Amendment applies here because defendant's offense involved crack cocaine. Therefore, based on the quantity of drugs possessed, defendant's base offense level is 30, and a two-level enhancement applies for committing the offense near a protected location, bringing his total offense level to 32. With a criminal history category of IV, this results in an advisory Guidelines sentencing range of 168 to 210 months. Pursuant to 18 U.S.C. § 3282(c)(2), the Court shall reduce the defendant's sentence to 168 months.
U.S.S.G. supp. to app. C, Amends. 706, 712, 713; U.S.S.G. § 1B1.10(a)(2).
U.S.S.G. § 2D1.2(a)(1).
With regard to defendant's suggestion of ineffective assistance of counsel, the Court finds that it lacks jurisdiction to decide that issue. A motion brought pursuant to § 3582 "cannot be used to create a new vehicle for a collateral attack on a conviction." Therefore, the Court may not grant defendant's pro se motions on the basis of ineffective assistance of counsel.
United States v. Verners, 136 F. App'x 142, 145 (10th Cir. 2005) (citing United States v. Smartt, 129 F.3d 539, 542-43 (10th Cir. 1997)).
Finally, the Court is not required to hold a re-sentencing hearing on a motion made pursuant to § 3582. In fact, Fed.R.Crim.P. 43(b)(4) explicitly provides that a defendant need not be present for any proceeding involving "a reduction or correction of sentence under . . . 18 U.S.C. § 3582."
See, e.g., United States v. Legree, 205 F.3d 724, 729 (4th Cir. 2000).
IT IS THEREFORE ORDERED BY THE COURT that defendant Paul Edward Davis' pro se Motion for Relief Pursuant to 18 U.S.C. 3582(c)(2) in Conjunction with USSG 1B1.10 (Doc. 114) is granted. Defendant's pro se Motion Ineffective Assistance of Counsel, U.S.S.G. § 1B1.10(A)(3), and Application Note 1(B), a Full Resentencing Hearing (Doc. 115) is granted in part and denied in part. The motion is denied with regard to the ineffective assistance of counsel claim and defendant's request for a full re-sentencing hearing. The motion is granted insofar as it requests relief under Amendment 706. The Court shall reduce defendant's sentence from 210 months to 168 months. The remainder of the Court's sentencing order shall remain unchanged.
IT IS SO ORDERED.
ATTACHMENT A
Paul Davis, 99-40091
JGChappas
to:
ksd_robinson_chambers
02/26/2010 03:48 PM
Cc:
Monice_Crawford, Randy. Hendershot, Trey_Burton, Melody_Evans, Amy_Seymour Show Details
History: This message has been forwarded.
Dear Judge Robinson:
Thank you for your patience in this regard. I have re-reviewed Paul Davis' file, consulted with him along with the USPO and AUSA Hendershot. I believe that the following is an accurate assessment of the status of the above file as I can provide. Please let me know if I can provide additional information and clarification.
On June 1, 2000, Paul Davis was convicted of four (4) counts of distribution of cocaine base within 1000 feet of a school and one (1) count of possession of cocaine base with the intent to distribute within 1000 feet of a school. His PIR had him at a criminal history of IV. The PIR contained additional controlled substance, by way of relevant conduct, which was seized incident to his arrest. This substance was 16.9 grams of powder cocaine. Pursuant to Section B. of Application Note 10, contained in USSG 2D1.1, the PIR converted both the cocaine base and powder cocaine to 1,534.58 kilograms of marijuana giving rise to a BOL of 32. His BOL was enhaned an additional two (2) levels due to the drug activity's nearness to real property housing a school. The sentencing grid box contained a sentence of 210 to 262 months. On October 6, 2000, Paul Davis received a sentence of 210 months, on all counts, to run concurrently with each other.
Paul Davis exhausted all of his direct appeals and thereafter, pursued habeas relief. On December 17, 2007, the Court's Docket Screen reflects the receipt of some information relative to Paul Davis' case being a candidate for sentence modification in light of a change in the Sentencing Guidelines. I cannot ascertain what information the court received. I do know that the PD's office, at that time, were reviewing all files where sentence modification may be appropriate. On April 24, 2008, Paul Davis file a pro se motion for sentencing relief in addition to claims of ineffective assistance of counsel.
As to the claims of ineffective assistance, I did review hie entire file and consulted with AUSA Hendershot. I believe that these claims have all been rehashed and decided in previous rulings by the Court. I have discussed this with Paul and he instructed me to pursue the issue requesting sentencing relief. Therefore, I would submit those issues of alleged ineffective assistance of counsel to the court for decision based upon the pleading filed and the prior rulings of the Court.
As to the claims for sentence modification, Paul Davis' motion argues that his BOL should be 30 instead of 32. He argues that the 76 grams of cocaine base would place him at the BOL of 30 and that the powder cocaine seized, assumingly if converted to cocaine base and added, would not put him in a BOL of 32 but for the conversion to marijuana. I believe, not for that reason, he is right that his BOL should be 30 and subject to the 2 level enhancement for the school zone.
Section (D)(i) of Application Note 10 for USSG 2D1.1 recommends that subdivision (B) of said Application Note should be applied to determine a BOL where there are different controlled substances. Subdivision B. suggests converting the multiple substances to their respective quantities of marijuana, per guidelines conversion table(s), to arrive at a BOL using the tables in 2D1.1. When that is done, (D)(i) recommends reducing the resulting BOL by 2 levels. (D)(ii) provides two (2) exceptions where the adjustment should not be given. (D)(ii)(I), denies the adjustment where the offense involved 4.5kg or more or less than 250mg. of cocanie base. (D)(ii)(II), denies the adjustment when the combined BOL of the multiple subsances, after conversion per subdivision (B) and two level reduction, would be less than the BOL of the non-cocaine base substance alone. In this case. In this case, the 16.9 grams of powder cocaine would convert to 3.38kg of marijuana, which would be a BOL of 12. The BOL resulting from converting both drugs to marijuana and after (2) level reduction would be a 30, thus not triggering that exception.
I would submit that applying the new guidelines changes would result in a reduced, final BOL of 32, with a criminal history of IV and a corresponding sentence of 168 months if the lower box were again to be used. I believe that, subject to any additional imput from the USPO and the AUSA that this motion is in a posture where it can be decided. Thank you for your patience with this matter.
Jim Chappas
pc: Paul Davis