Opinion
Case No. 00-40077-01-RDR
April 21, 2003
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 defendant's arguments, the court is now prepared to rule.
I.
On June 6, 2001, pursuant to Fed.R.Crim.P. 11(a)(2), the defendant entered a conditional plea of guilty to a one-count information alleging a conspiracy to manufacture and distribute a detectable amount of methamphetamine. He reserved the right to appeal the court's order denying his motion to suppress. The defendant's sentencing guideline range was 151 months to 188 months. The court sentenced him to the bottom of the guidelines, 151 months followed by 36 months of supervised release. On appeal, the court's denial of his motion to suppress was affirmed. United States v. Lloyd, 46 Fed.Appx. 912, 2002 WL 1753188 (10th Cir. 2002). In this motion he contends that the court erred (1) in calculating the amount of methamphetamine to be attributed to him for the purposes of sentencing; (2) in enhancing his sentence based upon his prior convictions; and (3) in not providing him an opportunity to speak at sentencing. The defendant also argues that his retained counsel was ineffective in failing to raise these issues at sentencing and on appeal.
II.
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). 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 these arguments before this court and on appeal.
This issue is, however, currently under review by the United States Supreme Court, Massaro v. United States, 27 Fed.Appx. 26 (2nd Cir. 2001) (unpublished opinion), cert. granted, 123 S.Ct. 31 (2002).
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 reasonableness 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 initially contends that the court erred in calculating the amount of drugs attributed to him for sentencing purposes. The defendant provides two bases for this contention. First, he asserts that the calculation based upon the testimony of Steve Shute was incorrect. He notes that the court, in arriving at the amount of methamphetamine attributable to him, relied upon statements from Shute where he indicated that he had worked with the defendant from 1998 to December 1999. The defendant has produced his own affidavit and affidavits from two individuals in support of this argument. In each affidavit, the affiant states that Shute worked with the defendant in his barbeque business only from the last week in July 1999 to September 3, 1999. Second, the defendant asserts that the court erred in calculating the methamphetamine attributable to him. The defendant contends that the court should not have included "actual" methamphetamine in the amount attributable to him because he entered a plea of guilty to conspiracy to manufacture and distribute a "mixture" containing a detectable amount of methamphetamine. The defendant has suggested that his counsel was ineffective for failing to make these arguments at sentencing and on appeal.
A person convicted of conspiracy to distribute controlled substances "is accountable for all quantities of contraband with which he was directly involved and . . . all reasonably foreseeable quantities of contraband that were within the scope of the criminal activity that he jointly undertook." U.S.S.G. § 1B1.3 comment (n. 2). The government has the burden of proving the quantity of drugs for sentencing by a preponderance of the evidence. See United States v. Richards, 27 F.3d 465, 468 (10th Cir. 1994). This information upon which the court relies must be sufficiently reliable. Id.
In the presentence report, the amount of drugs attributable to the defendant was determined as follows:
On February 14, 2001, Steve Shute, one of Lloyd's former associates, testified before the Topeka Grand Jury. Shute stated that he worked for the defendant at his barbeque business from some unknown date starting in 1998 to December 1999. Shute stated that he worked with Lloyd 3-4 times per week, and on those occasions the defendant sold 3 ½ to 7 grams of methamphetamine to 5-6 people on the days that he worked. He stated that Lloyd began manufacturing in late 1998 or early 1999, and that Shute would supply him with anhydrous ammonia for his cooks. Shute stated that he helped Lloyd manufacture methamphetamine on 25-30 occasions, and that each cook yielded 2 ounces. Given this testimony, this defendant would have sold a minimum of 2730 grams of a mixture of methamphetamine during the time that Shute worked with him.
The probation office arrived at 2730 grams of a mixture of methamphetamine as follows:
This figure is derived by calculating the 3.5 grams (amount per sale) X 5 (buyers per day)=17.5 grams (sold per day). Shute worked with the defendant 3 to 4 times per week, giving 52.5 grams sold per week(17.5 X 3=52.5). Shute worked for the defendant for at least 52 weeks (52.5 grams per week X 52 weeks), yielding 2730 grams.
The probation office then added 9.90 grams of a methamphetamine mixture based upon the discovery of these drugs in the defendant's vehicle on March 26, 2000. Finally, the probation office added 174.69 grams of actual methamphetamine based upon the discovery of 379.48 grams of ephedrine/pseudoephedrine found at the defendant's residence on March 27, 2000. The conversion of all these drug amounts to marijuana led to a total of 7226.7 kilograms of marijuana. The base level for 7226.7 kilograms of marijuana is 34.
The court believes that the amount of drugs attributable to the defendant was accurately calculated. We note initially that the defendant's second aspect of this argument has no legal support. The probation office correctly determined, for purposes of relevant conduct, the amount of all drugs with which the defendant was directly involved and all reasonably foreseeable quantities of drugs that were within the scope of the criminal activity that he jointly undertook. The defendant's plea did not prevent the consideration of his possession of "actual" methamphetamine, or his possession of ephedrine/pseudoephedrine with the intention of manufacturing "actual" methamphetamine, for determination of his relevant conduct.
The court is not persuaded that the defendant has supplied enough information to demonstrate that the court erred in its calculation of the drug amount. The court notes that the defendant has supplied affidavits that suggest that Shute only worked in defendant's barbeque business from July 1999 to September 3, 1999. The court does not find these affidavits sufficient to require a hearing. First, we note that the defendant has made no representation that this information was made available to his counsel prior to sentencing. Second, even if this information were available, it does nothing to contradict Shute's statements about his drug activities with the defendant. In sum, the court finds the defendant has not sufficiently demonstrated that his counsel was ineffective for failing to raise this issue.
B.
The defendant next contends that his counsel was ineffective for failing to assert at sentencing and on appeal that the court lacked jurisdiction to enhance his sentence based on his prior convictions. The defendant makes this argument based upon the contention that an enhancement of his sentence was improper because the government withdrew the information it had filed under 21 U.S.C. § 851.
The court can proceed immediately to the prejudice prong of the ineffective assistance of counsel test. The defendant clearly lacks an understanding of the proper sentencing procedures and the impact of a § 851 information. Federal law imposes a mandatory minimum sentence for certain crimes, but only if the defendant has a prior drug felony. In order to render defendant eligible for the mandatory minimum, the government must allege the prior conviction in an information pursuant to 21 U.S.C. § 851. The defendant is correct that the government withdrew its § 851 information prior to sentencing. As a result of this withdrawal, the court did not sentence the defendant based upon the mandatory minimums contained in 21 U.S.C. § 841. Rather, the court sentenced the defendant under the sentencing guidelines. Any sentencing under the guidelines requires the court to consider the defendant's past criminal convictions in order to determine his criminal history category. The court properly did so, and any suggestion by the defendant that this was error is clearly frivolous. Given this conclusion, the court finds that defendant's counsel was not ineffective for failing to raise this issue at sentencing or on appeal.
C.
Finally, the defendant argues that his counsel was ineffective for failing to assert on appeal that the court erred in not affording him an opportunity to speak at sentencing. The court also finds this argument frivolous for a variety of reasons.
Before imposing a sentence, the court must "address the defendant personally and determine whether the defendant wishes to make a statement and to present any information in mitigation of the sentence." Fed.R.Crim.P. 32(c)(3)(C). Resentencing is generally required if a court does not comply with the requirements of Rule 32. United States v. Latimer, 548 F.2d 311, 315 (10th Cir. 1977).
At sentencing, the following colloquy occurred:
THE COURT: Does your client want to say anything or, Mr. Lemon [defendant's co-counsel], do you want to say anything further?
MR. WAMPLER: No, Your Honor. He doesn't wish to address you.
Initially, the court questions whether this issue is even cognizable in a § 2255 petition. See Hill v. United States, 368 U.S. 424, 428 (1962). Even if it is, we find no merit to it. The court believes that it adequately complied with Rule 32. However, even if the court's question did not constitute an unambiguous personal invitation to speak, we find that the defendant's claim of ineffective assistance of counsel must fail because the defendant has not demonstrated that he was prejudiced by his counsel's failure to raise this claim on direct appeal. The court sentenced the defendant to the bottom of the guidelines. The defendant has made no suggestion that he sought any type of departure. Accordingly, the defendant was not prejudiced because the court had no other sentencing option that would have been more favorable to him.
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. #119) be hereby denied.
IT IS SO ORDERED.