Opinion
No. 2:97-CR-42(01)
December 3, 2002
REPORT AND RECOMMENDATION TO DENY MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE OR CORRECT SENTENCE
Defendant DAVID EARL KATES has filed with this Court a Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody. For the reasons hereinafter expressed, the undersigned United States Magistrate Judge is of the opinion defendant has failed to show his conviction and sentence were obtained in violation of the Constitution and laws of the United States, nor has he made a substantial showing of the denial of a constitutional right. It is the recommendation of the undersigned Magistrate Judge that the motion to vacate, set aside or correct sentence be DENIED.
I. PROCEDURAL HISTORY
Defendant does not refute the "Procedural History" portion of the government's response, therefore, the following is taken from the government's response:
On September 19, 1997, a criminal complaint was filed charging David Earl Kates and Yshone Chamine Moore with possessing with intent to distribute approximately 21 grams of cocaine base, in violation of Title 21, United States Code, Section 841(a)(1). On September 23, 1997, a one-count indictment was returned charging the same offense. On October 30, 1997, an enhancement information was filed that sought increased punishment pursuant to Title 21, United States Code, Section 851, due to Kates' prior drug conviction. On October 31, 1997. the co-defendant Moore pled guilty to the one-count indictment.
On November 5, 1997, the trial commenced and at the end of the day the government rested. Kates then orally moved for a judgment of acquittal for insufficient evidence, noting that the government had not called the co-defendant Yshone Moore to prove that the drugs found were the same that had been thrown by Kates. The motion was denied. Kates did not offer any evidence. On November 6, 1997, Kates was found guilty.
On December 30, 1997, Moore was sentenced to 60 months, 4 years supervised release and a $100 special assessment. On April 3, 1998, Kates was sentenced to 360 months, 8 years supervised release and a $100 special assessment.
On April 9, 1998, Kates timely filed notice of appeal. On appeal, Kates argued:
1. the District Court erred in denying the motion for new trial for an alleged Brady violation;
2. the District Court erred by denying the motion for acquittal based upon failure to prove the element of intent to distribute; and
3. the District Court erred by finding Kates was a career criminal and determining that his prior convictions were not "related cases."
On May 3, 1999, the Fifth Circuit Court of appeals affirmed Kates' conviction. On May 2, 2000, Kates filed this motion pursuant to 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence By A Person In Federal Custody.
II. SUMMARY OF THE EVIDENCE
Defendant does not refute the "Facts" portion of the government's response, therefore, the following is taken from the government's response:
On September 18, 1997, Amarillo Police Officer Michael Dunn, who was not in uniform or in a patrol car, observed a maroon Cadillac SeVille at the Phillips 66 Station at Amarillo Boulevard and Mirror with David Kates seated in the driver's seat. He suspected the vehicle was stolen and called in to report that he had seen a suspected stolen vehicle.
Amarillo Police Corporal Harlan and Officer Russell received the report of a suspected stolen vehicle, described as a maroon Cadillac, Texas license BDV-04M, westbound on Amarillo Blvd. The vehicle was eventually spotted in the parking lot of a car wash at 901 West Amarillo Boulevard. Corporal Harlan was unable to locate a stolen vehicle report, however, when the Cadillac left the car wash, it traveled at a high rate of speed and Officer Harlan followed the vehicle. The Cadillac pulled into the on-coming lane of traffic and parked facing the wrong way in front of 308 N. Adams. Kates, the only occupant of the vehicle, exited the car and began walking to the door of 308 N. Adams as Corporal Harlan began getting out of his vehicle. The overhead beacons of the patrol car had been activated. Kates was ordered to stop several times, but ignored the police and would not turn to look at the officers, though Corporal Harlan had called out to him and whistled twice.
Kates reached in front of his shorts, pulled out something, and threw it in the air and said, "Take this, Mama". Corporal Harlan was approximately fifteen feet from Kates when Kates threw the object. After throwing the object, Kates turned and was in the process of breaking into a run when Corporal Harlan grabbed him and took him to the ground. While Corporal Harlan was on the ground with Kates, he observed Yshone Moore pick up the package that Kates had tossed and take off running.
Corporal Harlan released his hold on Kates and began chasing Yshone Moore and eventually caught her in a nearby vacant field. A search for the suspected bag of narcotics ensued. After assistance from Yshone Moore, the narcotics were found in some tall grass. Corporal Harlan testified that he believed the baggie that was recovered in the tall grass was the same item that Kates had removed from the front of his pants and tossed to Yshone Moore. Corporal Harlan testified that Yshone Moore told him the baggie was the same one.
Officer Russell testified that he saw a plastic bag come flying through the air from the front of Kates and saw Yshone Moore, also known as Fat Mama, pick it up and take off running. Officer Russell followed, but returned to the patrol car after seeing Corporal Harlan apprehend Moore. Officer Russell returned to Kates' location to find Kates had departed in the Cadillac. After Officer Russell followed directly behind Kates for more than five blocks with his lights and siren on, Kates stopped and was placed under arrest.
Chemist Roy Murphy testified that the exhibit seized at the scene and submitted to him contained 19.67 grams of cocaine base. Corporal Dale Nevins of the Amarillo Police Department testified that he attempted to develop identifiable fingerprints from the baggie, but was unable to do so.
Drug Enforcement Administration Agent Larry Lamberson testified that the baggie of crack cocaine would be sold in rocks that would be very small amounts. He testified that the baggie seized would contain probably 190 rocks and be valued from $1,900.00 to $3,000.00. When asked if the 19.67 grams was an amount to be distributed, Agent Lamberson replied, "Oh, yes, ma'am", and that, in his opinion, it would be distributed to other people in the community. According to the testimony of Agent Lamberson, that much crack is hardly ever purchased for personal use.
III. DEFENDANT'S ALLEGATIONS
In his motion and memorandum in support of his motion, defendant appears to raise the following grounds in support of his contention that his conviction and sentence were imposed in violation of the Constitution or laws of the United States:
Defendant was denied effective assistance of counsel because counsel:
1. failed to raise, on direct appeal, the claim that in calculating defendant's criminal history under the Sentencing Guidelines, defendant's two prior state convictions should have only counted as one prior conviction under § 4A1.2 because said convictions were "related cases" in that they were "part of a single common scheme or plan;"
2. failed to move for downward departure from the career offender guidelines; and
3. failed to accurately calculate the sentencing guidelines of the plea offer made by the government.
Defendant advises the above grounds have not been previously presented "because [he] was represented by the same attorney who cannot raise ineffective assistance on himself."
IV. EFFECTIVENESS OF COUNSEL A. Failure to Raise on Direct Appeal Defendant's "Highly Winnable" Claim
On December 5, 1997, the United State Probation Office (USPO) prepared a Presentence Report (PSR) for the Court's use in determining defendant's sentence. In the "Offense Level Computations" portion of the PSR, the USPO found:
The career offender provisions of USSG § 4B1.1 apply because (1) the defendant was at least 18 years old at the time of the instant offense, (2) the instant offense of conviction is a felony that is a controlled substance offense and (3) the defendant has at least two prior felony convictions for controlled substance offense. As detailed in Part B. The Defendant's Criminal History, the defendant is a career offender and the adjusted offense level is 37, according to USSG § 4B1.1
This finding adjusted defendant's Total Offense Level from 26 points to 37 points. In "The Defendant's Criminal History" portion of the PSR, the USPO referred to defendant's following adult criminal convictions: Date of Conviction/Court Date Sentence Guideline/ Arrest Imposed/Disposition Points 03/24/92: 3 4A1.1
05/31/91 Delivery of a 10 years USSG § (Age 28) Controlled Substance deferred adjudication (a) 30354-A 08/23/93; Revoked 10 47th District Court years Texas Department Potter County, Texas of Criminal Justice Institutional DivisionThe defendant pled guilty to the offense. The offense involved the defendant making a delivery of cocaine less than 28 grams to a person working in an undercover capacity on May 11, 1991.Date of Conviction/Court Date Sentence Guideline/ Arrest Imposed/Disposition Points 03/24/92: 3 4A1.1 05/31/91 Delivery of a 10 years USSG § (Age 28) Controlled Substance probation (a) 30442-A 08/23/93; Revoked 10 47th District Court years Texas Department Potter County, Texas of Criminal Justice Institutional Division
The offense involved the defendant making a delivery of cocaine less than 28 grams to an undercover officer on May 18, 1991. The defendant's probation 30442-A and deferred adjudication probation 30354-A was revoked based on the defendant's failure to pay probation fees and his involvement with another delivery of controlled substance that occurred November 12, 1992, which was filed as a violation of probation, however, there is no information that additional charges were filed. The defendant was paroled on the above two cases on January 2, 1997. A parole violator's warrant has been issued in reference to the instant offense, warrant number 9-23-97-648737 is active.
Defendant's adult criminal convictions resulted in a Criminal History Category of IV. however, defendant's Criminal History Category was adjusted to a VI because defendant had been found to be a career offender.
In defendant's objections to the PSR, defense counsel objected to defendant being classified as a career criminal. Specifically, referring to the section alleging two state convictions for delivery of cocaine, defense counsel argued:
Both arrests were on the same date (May 31, 1991), both sentences were the same date (March 24, 1992). Both resulted in probated sentences which were later revoked on the same date.
Defendant submits that the career criminal provisions of the Guidelines should not apply under these circumstances involving concurrent sentences for offenses committed the same day. The purpose of career offender statutes is to notify offenders that if they re-offend, the punishment will be more severe. Defendant's concurrent sentencing of offenses committed the same day do not allow such notice.
In its Addendum to the Presentence Report, the USPO responded to defendant's argument as follows:
It should be noted the offenses did not occur the same date. One offense occurred May 11, 1991 and the other offense occurred May 18, 1991. U.S. v. Garcia, 962 F.2d 479 (5th Cir. 1992), held that separate deliveries occurring within a nine day period and within the same vicinity, were not related cases within the meaning of guideline provisions defining prior convictions for purposes of career offenders enhancement; although crimes were temporally and geographically alike, they were not part of a common scheme or plan that would preclude imposition of career offender status. Evidence did not establish that the prior state convictions were consolidated for trial or sentencing within the meaning of the guideline provision defining related cases for purposes of career offender enhancement. The state court treated the two convictions separately, entering separate sentences, judgments, and plea agreements. The judgment, based on the application of career offender enhancement, was affirmed.
At the sentencing hearing, defense counsel argued defendant's two prior convictions should be considered "related cases" and, thus, only count as one prior conviction in determining whether petitioner was a career offender. Defense counsel argued defendant was "not the sort of defendant that the sentencing guideline intended to be subject to the harsh career criminal enhancements," noted there was no intervening arrest between defendant's offenses, and maintained defendant did not have the required sufficient notice that he was subject to being considered a career offender. Defense counsel also argued:
[T]he Defendant committed these, we submit, as a part of the same scheme or plan. I believe the testimony will be, to the same undercover agent. The police just simply didn't arrest him on May 11 and went back and made another purchase before they did arrest the Defendant. (emphasis added)
The cases cited by the Probation Office in its addendum, the case cited, the Garcia case we feel is distinguishable.
Sure. The Garcia case does seem to support the proposition that separate deliveries occurring within a nine day period within the same vicinity were not related cases within the meaning of the guideline. The guideline talks about we don't count these as separate convictions under the career criminal, under 4A1.2 of the guidelines if they are related cases. And it goes on to say in analysis of Garcia, "They were not part of a common scheme and plan," which we think is the case here. "The evidence did not establish that the prior state convictions were consolidated for trial or sentencing." These were consolidated for the guilty plea and were consolidated for sentencing. So we feel that Garcia is distinguishable.
Defense counsel also submitted two Ninth Circuit cases to the Court to support his arguments that defendant's prior sentences were related because they resulted from offenses that were consolidated for trial and sentencing and because defendant's prior offenses were part of a single common scheme or plan. Defense counsel also made arguments that treating defendant as a career offender would result in his being treated differently in the same division than other defendants, thereby violating defendant's right to equal protection. The Court overruled defendant's arguments holding:
Okay. Well, the Court is going to find that in this case the Defendant committed two separate offenses, that he was arrested for those two separate offenses on the same day, and that he was tried on the same day, but that he received separate sentences on those cases, and I don't think you can correctly say they were concurrent sentences, in that one was probation and one was deferred adjudication, which meant the sentence itself was deferred.
In light of the cases that have been shown to the Court, and the fact they were clearly not consolidated for trial, but were tried separately and sentenced separately, the Court will have to find that they were not related offenses and the career guidelines were correctly calculated.
Based on a Criminal History Category of VI and a Total Offense Level of 37, defendant's Guideline Range of Imprisonment was 360 months to Life. The District Judge sentenced defendant to 360 months confinement, the minimum term within the range of punishment.
Defendant appealed his conviction and sentence asserting by his third ground, as noted above, that "[t]he district court erred in failing to treat two of Kates's prior convictions and sentences as 'related cases' under U.S.S.G. § 4A1.2." Under that ground, defendant noted "[p]rior sentences imposed in related cases are to be treated as one sentence for purposes of § 4A1.1(a), (b), and (c)," and that "related cases" are defined as follows:
Prior sentences are not considered related if they were for offenses that were separated by an intervening arrest (i.e., the defendant is arrested for the first offense prior to committing the second offense.) Otherwise, prior sentences are considered related if they resulted from offenses that (1) occurred on the same occasion; (2) were part of a single common scheme or plan, or (3) were consolidated for trial or sentencing.
Under this ground, defendant argued only that his convictions were " consolidated for trial or sentencing" and, thus, were "related cases." Defendant maintained that, as "related cases," his convictions were not subject to receiving separate criminal history points and, thus, did not qualify as predicate offenses for purposes of the career-offender guideline which subjected defendant to an enhanced base offense level. Defendant argued that had his "previous convictions been treated as 'related,' he would not have been subject to a 360 months-life sentence. Instead, he would have faced a sentencing range of 78-97 months. Thus, instead of the 30 years he actually received, he would have faced a maximum 8 years."
In its opinion, the United States Court of Appeals for the Fifth Circuit characterized defendant's third ground as an argument that defendant's "prior convictions do not render him a career offender under the Sentencing Guidelines." In its opinion finding no reversible error and affirming defendant's conviction and sentence, the Fifth Circuit discussed defendant's third ground as follows:
Kates resists being sentenced as a career offender under U.S. Sentencing Guidelines Manual §§ 4B1.1, i.e., a person who had at least two prior felony convictions of a controlled substance offense. Kates denies that he has two previous relevant felony convictions because he was arrested for two separate offenses on the same day and was sentenced for those offenses on the same day. If the defendant's prior convictions constitute "related cases" within the meaning of U.S. Sentencing Guidelines Manual §§ 4A1.2(a)(2), they will not be treated separately for career offender purposes. The official commentary to that guideline states that "prior sentences are considered related if they resulted from offenses that (1) occurred on the same occasion, (2) were part of a single common scheme or plan, or (3) were consolidated for trial or sentencing." U.S. Sentencing Guidelines Manual §§ 4A1.2 cmt. 3. This court has held that "a finding that prior cases were 'consolidated' will require some factual connexity between them, or else a finding that the cases were merged for trial or sentencing." United States v. Huskey, 137 F.3d 283, 288 (5th Cir. 1998). Either a formal order of consolidation or the listing of the two offenses in the same criminal information under the same docket number is sufficient to find that two separate offenses were consolidated. See id. By contrast, neither the fact that sentencing for both offenses occurs on the same day (and/or in the same proceeding) nor the imposition of identical, concurrent sentences is sufficient to find that factually distinct offenses were "related cases." See id.
Kates' previous state court convictions arise from his delivery of cocaine to an undercover agent on May 11, 1991, and the separate delivery of cocaine to another undercover agent one week later. Kates was arrested for the offenses on the same day. Two indictments were returned against him, and the cases were not formally consolidated. Kates received concurrent but different sentences from a single judge: he was sentenced to ten years deferred probation for one offense and ten years straight probation for the other. Kates was paroled on each offense on the same day. These coinciding events are not, however, sufficient to find consolidation under Fifth Circuit precedent. See, e.g., United States v. Garcia, 962 F.2d 479, 482-83 (5th Cir. 1992). This court has rejected the proposition that cases must be considered consolidated simply because two convictions have concurrent sentences. See id. at 482. Moreover, as Huskey demonstrates, the simultaneous disposition of two separate cases does not amount to consolidation for guidelines purposes. Kates' arguments based on case law from the Ninth Circuit or disagreement with this circuit's precedent will not suffice to overcome the career offender enhancement.United States v. Kates, 174 F.3d 580, 583-84 (5th Cir. 1999).
In his first point, defendant argues his attorney failed to raise, on appeal, the claim that defendant's prior convictions were "related" cases because they were "a part of a single common scheme or plan" and, thus, should not be counted as separate prior convictions. Defendant contends that although his attorney "briefly" argued at sentencing that the prior convictions were "a part of a single common scheme or plan" and were to be treated as one conviction, that counsel "completely abandoned" the "single common scheme or plan" claim on direct appeal. Defendant maintains counsel's failure to raise this claim on appeal was clearly unreasonable and fell below objective standards of reasonableness because the "single common scheme or plan" claim was defendant's stronger argument with respect to his prior convictions (as opposed to the "consolidated trial/sentencing" argument counsel raised on appeal). Defendant concludes he was prejudiced by counsel's failure to raise the claim on appeal because there was a reasonable probability that had the "single common scheme or plan" claim been raised, the result of defendant's appeal would have been different. Defendant relies on the Fifth Circuit's August 30, 1999 opinion in United States v. Robinson, 187 F.3d 516 (5th Cir. 1999) as evidence that the result of his appeal would have been different.
In Robinson, the defendant, charged with possession with intent to distribute cocaine base, was sentenced as a career offender based on his two prior state convictions for delivery of cocaine. The defendant argued the district court erred in sentencing him as a career offender based on his two prior state delivery convictions.
Robinson's two earlier state offenses of delivery of cocaine occurred in June, 1992. The first delivery occurred on June 17, 1992, when Robinson sold a $50 "rock" of cocaine to undercover agent Stephen Fuchs. At the time of this first delivery, Robinson told Fuchs that he would pay Fuchs $50 for every additional customer that Fuchs referred to Robinson. The second delivery then occurred on June 24, 1992, when Robinson sold another $50 "rock" of cocaine to undercover agent Darrell Sanders, who Fuchs referred to Robinson. Both offense occurred within a two block area in San Antonio, Texas. Robinson pled guilty to the two offenses on May 13, 1993, and received identical sentences of 10 years probation. Both probation terms were terminated early on January 11, 1995. Robinson argues in the district court and to this court on appeal that his prior convictions were part of a common scheme or plan because they involved the same type of crime, were committed within days of each other and within the same vicinity, were investigated by a single agency, and because the commission of the second crime could not have occurred but for the commission of the first.
It is clear from Garcia and Ford that the term "common scheme or plan" must mean something more than repeated convictions for the same criminal offense. Indeed, we agree with the Seventh Circuit's statement in United States v. Ali, 951 F.2d 827 (7th Cir. 1992), that the words 'scheme' and "plan" are "words of intention, implying that the [prior offenses] have been jointly planned, or at least that it have been evident that the commission of one would entail the commissions of the other as well." However, "[a] crime merely suggested by or arising out of the commission of a previous crime is not . . . related to the earlier crime in the special sense of being part of a common scheme or plan."
In the present case, Robinson's two prior convictions are more than merely repeated transactions, temporally and geographically alike. Although the two crimes occurred only seven days apart and within the same vicinity, they contain a factual nexus not present in Garcia and Ford. The situation in the present case is similar to the hypothetical scenario described in Ali, where the prior crimes are "jointly planned" or where the "commission of one crime entailed the commission of the other." Specifically, Robinson planned the commission of the second crime during the course of the first crime: while selling the "rock" of cocaine to Agent Fuchs, Robinson told Fuchs that he would pay him $50 if Fuchs would refer other customers to Robinson. Robinson intended or planned, at the time he committed the first offense, to sell drugs to other customers Agent Fuchs might refer to him. The second offense was not a spur of the moment occurrence (citation omitted), but rather an action proposed and planned at the time of the first offense. Additionally, the second offense could not have occurred but for the first offense — the commission of the second offense therefore necessarily entailed the commission of the first offense. In other words, Robinson could not have made the second delivery of cocaine to Agent Sanders had he not sold the first "rock" to Agent Fuchs who then referred Sanders to Robinson.
In light of the fact that Robinson jointly planned the two deliveries of cocain, we conclude that Robinson's two prior state convictions are related as being part of a common scheme or plan and should be treated as one conviction. Therefore, the district court erred in sentencing Robinson as a career offender . . .
Defendant argues the "chain of events with respect to his prior convictions were 'nearly identical' to those in Robinson, except here in Kates' case, the undercover agent from the first delivery was the 'same' agent Danni Winzer in the second delivery occurring at the 'same' nightclub." Defendant further argues that 'even more importantly, Kates specifically told the undercover agent to come back to the night-club for the second purchase, being that the agent implied that he liked Kates' "big-rocks." Defendant contends the "facts surrounding these two deliveries clearly show that the second delivery 'was not a spur of the moment occurrence.'" Defendant maintains that based on the similarities between the facts in his case and the facts in Robinson, and considering the Fifth Circuit's reversal of the career offender finding in Robinson, "there was a reasonable probability that the Court of Appeals would have ruled in favor of Kates on this claim, just as in Robinson" if said claim had been raised on appeal. Defendant avers, by affidavit, that he requested counsel raise the "common scheme or plan" claim after reviewing the appellate brief submitted by counsel, but that counsel failed to do so. Defendant concludes counsel's failure to raise the "common scheme or plan" claim was deficient, that defendant was prejudiced by the failure to raise the claim because "it was a highly winnable claim" and, thus, defendant was denied his constitutional right to effective assistance of counsel.
Defendant has submitted an affidavit averring that at the time of the first delivery offense, he told the undercover agent to return to the night club, the scene of the first delivery, "to make a second purchase" and that the agent told defendant he would be back for more "buys" if the controlled substance was "good".
Although the government properly construed defendant's argument as one that counsel was ineffective because he "abandoned on appeal that [defendant's] prior convictions were 'a part of a single common scheme or plan,'" the government then maintains counsel "argued just such issue" in his appellate brief. Review of defendant's appellate brief, however, reveals no such argument was made. Instead, counsel argued only the "consolidated for trial or sentencing" issue. Consequently, the Fifth Circuit addressed only the issue of whether defendant's cases were related because they "were consolidated for trial or sentencing," and did not consider whether said cases were related because they (1) occurred on the same occasion, or (2) were part of a single common scheme or plan. Accordingly, the government's answer is of no assistance to the Court on this issue.
The Court, however, does not find counsel has been shown to be ineffective for failing to raise the "single common scheme or plan" argument on appeal. Both the "single common scheme or plan" and "consolidated for trial or sentencing" arguments had been proficiently raised, argued, and rejected, at the district court level. Defense counsel, in his professional judgment, apparently believed the "consolidated for trial or sentencing" argument was the stronger of the two positions and, thereafter, thoroughly argued said claim on appeal. Counsel's strategic decision in choosing to pursue, on appeal, what he believes to be the better argument (in this case, the "consolidated for trial or sentencing" argument) is not deficient performance. Asserting only the strongest argument, so as not to distract the appellate court from that argument by asserting other unsuccessful claims (in this case, the "single common scheme or plan" argument), is a viable tactic routinely utilized by attorneys. This is especially true when, as here, the current controlling case authority did not support either argument. In fact, the Garcia case and another Fifth Circuit case, United States v. Ford, 996 F.2d 83 (5th Cir. 1993), which were controlling at the time of defendant's appeal. appeared to adequately address and dispose of defendant's "single common scheme or plan" claim. In the Ford case, the Fifth Circuit extrapolated on the Garcia holding, noting that the following circumstances did not render the defendant's prior state delivery convictions related under the "single common scheme or plan" provision:
— the factor that the defendant's four prior charges arose from sales to the same undercover officer during a six-day period, whereas Garcia made two sales to two different officers over a nine-day period
— the factor that two of the defendant's four sales occurred on the same date and at the same motel, whereas Garcia's sales occurred in distinct locations
The Court noted that in Ford:
Each sale was a separate transaction, separated by hours, if not days. The fact that the buyer was the same did not make the sales "related" any more than if Ford made four separate trips to the same H.E.B. in one week to buy groceries — there was no common scheme or plan, simply convenience and experience.United States v. Ford, 996 F.2d at 86. The undersigned finds that, considering the controlling case law at the time of defendant's appeal, as well as the individual circumstances of this case, counsel was not deficient in choosing to forego the "single common scheme or plan" claim in order to concentrate his efforts, and the appellate court's attention, on the reversal of defendant's sentence on the "consolidated for trial or sentencing" claim. The undersigned finds defendant was not denied effective assistance of counsel. To hold otherwise would be to engage in the type hindsight not permitted in claims of ineffective assistance of counsel. Defendant's first ground should be denied.
B. Failure to Move for Downward Departure from the Career Offender Guidelines
In his second ground, defendant claims his attorney was deficient for "neglecting to prepare and eagerly present mitigating factors and vigorous arguments seeking a downward departure from career offender guidelines." Defendant claims he was prejudiced by counsel's failure to seek a downward departure because if such a motion had been made, it is likely defendant's "criminal history category or the offense level, or both" would have been reduced because the "career offender guidelines egregiously over-represented the seriousness of Kate's background." Specifically, defendant claims his prior convictions were "insignificant" as they "entailed two minor cocaine sells of two '$40.00' cocaine deliveries, to the same undercover agent," and displayed "nothing more than the conduct of a low level street dealer" which defendant maintains "are the least significant," "most easily replaced member of a drug distribution network," and "most likely to be arrested." Defendant contends "his record of convictions should be considered less significant for sentencing purposes than that of others in the distribution chain who sell larger quantities of narcotics to low' level dealers" and "who do not expose themselves so readily to the risk of arrest and conviction." Defendant concludes he was denied his right to effective assistance of counsel because of his counsel's failure to move for a downward departure.
As noted above, the Criminal History portion of the PSR reflected defendant was convicted in 1992 of two (2) prior delivery offenses, said offenses taking place in May of 1991. The PSR further stated that on August 23, 1993, defendant's probation was revoked in both cases based on defendant's failure to pay probation fees and his involvement with another delivery of controlled substance offense that occurred November 12, 1992. This additional delivery offense was filed as a violation of probation and, it appears, was not filed as an additional charge against defendant. Upon revocation, defendant was placed in the penitentiary to serve his previously assessed sentences, being granted early release parole on January 2, 1997. Defendant was on parole for less than nine (9) months before he committed the instant offense on September 18, 1997. As a repeat offenders an argument for downward departure based upon over-representation of criminal history category was not warranted. Moreover, it is unlikely that the Court would have granted such a motion considering defendant's repetitive criminal behavior while on probation and on parole. Further, the Court did not act sua sponte to downwardly depart from the guideline range and, in fact, made the following comments when assessing defendant's sentence:
Now, your guidelines were 360 months to life. The Court has set your penalty at the very bottom of the guidelines, the very least the Court can assess within the guidelines.
The Court is not faced with a situation where there is not anything that is not addressed by the guidelines, and so we have sentenced within the guidelines. The penalty is very severe, so I have given you the minimum I can give you.
The undersigned finds counsel was not ineffective for failing to make an argument for downward departure. Further, defendant has not shown any such argument would have prevailed and, therefore, has not shown prejudice. Defendant's second ground is without merit.
C. Failure to Properly Advise of Sentencing Guideline Calculations
In his third ground, defendant argues defense counsel miscalculated the guideline range of the government's plea offered during October 1997 plea negotiations and, thus, erroneously advised him as to the government s actual plea. Defendant also argues counsel failed to advise him as to the possibility that he might fall under the career criminal guidelines, thereby subjecting him to a sentence of 30 years to life if he proceeded to trial.
Defendant contends counsel advised him the government was offering a plea agreement which counsel calculated as "starting at a level 28, minus 3-points for accepting responsibility" thereby resulting in a punishment range of "84-105 months (or 7 yrs.) offered by the prosecution." Defendant contends that in relaying the government's plea offer, counsel failed to properly adjusted the guideline calculations to reflect the "true weight" of the controlled substance. Defendant contends the government's offer, after the proper weight adjustments, was actually for a "level 26 . . . minus 3-points" for acceptance of responsibility resulting in an offer of 70-87 months (or a minimum of 5 years and 10 months). Defendant maintains he "was lead to believe, by counsel, that if he decided to go to trial, he would be at offense level 28. criminal history IV and facing 110-137 months (9 yrs. 2 mons. to 11 yrs. 5 mons.)." Defendant maintains he was never told of the government's "actual offer," based on the proper weight of the controlled substance, of 70-87 months and, thus, he refused the government's offer of 84-105 months "in hope of a better plea offer." Defendant contends that had he been advised of this "better" offer, he would likely have accepted the government's offer and pleaded guilty.
Further, defendant avers that during plea negotiations, counsel advised him he would be facing 110-137 months (a minimum of 9 years to 11 years) if he proceeded to trial, but completely failed to inform him "as to the possibilities of him being punished under the career criminal guidelines" thereby "facing 30-years to Life" if he proceeded to trial. Defendant contends that had counsel advised him of this possibility, "there is no doubt Kates would have plead (sic) different and would not be sitting in prison with a 30 — year sentence."
On October 2, 1997, the undersigned arraigned defendant, advising him that the range of punishment was, at a minimum, 5 years and could be up to a maximum of 40 years, a 4 year period of minimum mandatory supervised release to a 5 year maximum and a $100 special assessment. On October 30, 1997, the government filed enhancement information pursuant to 21 U.S.C. § 851 stating the government would seek increased punishment as to Count 1 due to defendant's prior conviction in Cause No. 30,442-A (the delivery offense pursuant to which defendant was sentenced to 10-years, probated). The information advised defendant that under section 851(b)(1)(B), defendant's term of imprisonment would be enhanced and the range would be from not less than 10 years to life, and a term of supervised release of at least 8 years. Defendant's trial began on November 5, 1997.
Defendant's argument that he would have pled to an offense with a potential sentence of 70-87 months but not to a potential sentence of 84-105 months is simply not credible. Further, assuming for purposes of argument that defense counsel discounted the carrier offender aspect, and, based upon his analysis of the case felt the potential for carrier criminal designation to be minimal, defendant Kates was still knowledgeable of the possibility. He had been provided, at arraignment, of notice of the potential sentence of up to 40 years (before the government's enhancement information). He was also on notice, subsequent to the enhancement information, that the punishment range was a minimum of ten (10) years to a maximum of life.
Defendant Kates is not entitled to relief on this ground.
VI. RECOMMENDATION
Defendant has failed to show his sentence was obtained in violation of the Constitution and laws of the United States, or to make a substantial showing of the denial of a constitutional right. Defendant is thus not entitled to relief. For the foregoing reasons, it is the RECOMMENDATION of the United States Magistrate Judge to the United States District Judge that defendant DAVID EARL KATES' motion to vacate be DENIED.
VII. INSTRUCTIONS FOR SERVICE and NOTICE OF RIGHT TO OBJECT
The United States District Clerk is directed to send a file-marked copy of this Report and Recommendation to defendant by certified mail, return receipt requested, and to each attorney of record by regular U.S. Mail or other pre-arranged means.
Any party may object to the proposed findings, conclusions, or recommendation within fourteen (14) days after the "FILED" date indicated on the Report and Recommendation. See 28 U.S.C. § 636(b)(1); Rule 8(b) of the Rules Governing Section 2255 Proceedings for the United States District Courts; F.R.C.P. 5(b). Any such objections shall be in writing and shall specifically identify the portions of the findings, conclusions, or recommendation to which objection is made, and set out fully the basis for each objection. Objecting parties shall file the written objections with the United States District Clerk and serve a copy of such objections on all other parties. A party's failure to timely file written objections to the proposed findings, conclusions, and recommendation contained in this report shall bar an aggrieved party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions set forth in this report and accepted by the district court. Douglass v. United Services Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996).