Opinion
Criminal No. 98-179(5) ADM/AJB Civil No. 01-588 ADM.
June 21, 2001.
MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
This matter is before the undersigned United States District Judge pursuant to Petitioner Edward Allan Willoughby's ("Petitioner") motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 [Doc. No. 539]. For the reasons set forth below, Petitioner's motion is denied.
II. BACKGROUND
On July 22, 1998, the United States Grand Jury for the District of Minnesota named Petitioner as one of thirteen defendants in a nine count superceding indictment charging various narcotics violations. On January 19, 1999, Petitioner pled guilty to conspiracy to possess with intent to distribute, and to distribute cocaine and cocaine base, in violation of 21 U.S.C. § 846 and 841(b)(1)(A) [Count 1]. The maximum statutory penalty under 21 U.S.C. § 841(b)(1)(C) is twenty years imprisonment.
In the Plea Agreement, the parties agreed that "the Base Offense Level applicable in this case based upon the quantities of cocaine and cocaine base is Level 36." Plea Agreement, ¶ 4. The parties also agreed that there were no Chapter 3 adjustments (for role in the offense) that were applicable in the case and Petitioner would be entitled to a two-level reduction for "acceptance of responsibility" under U.S.S.G. § 3E1.1(a). Id. ¶¶ 5, 6, 7. The applicable guideline range was estimated to be 168 to 210 months of imprisonment. Id. ¶ 9.
The Presentence Report ("PSR") calculated Petitioner's Offense Level at 36 and his Criminal History Category at III, resulting in an applicable guideline range of 235 to 293 months. The PSR included a recommended 3-level "aggravating role" enhancement pursuant to U.S.S.G. § 3B1.1(b). PSR, ¶ 46. On July 29, 1999, Petitioner was sentenced to 210 months followed by a 5-year term of Supervised Release.
Petitioner filed an appeal, claiming the District Court erred in denying him a "mitigating role" reduction and in calculating his Criminal History Category as III. On April 13, 2000, the Eighth Circuit affirmed Petitioner's sentence, concluding he had waived the issues. See United States v. Willoughby, 210 F.3d 380 (Table) (8th Cir. 2000).
III. DISCUSSION
A. Section 2255
A prisoner may bring a motion under 28 U.S.C. § 2255 to vacate, set aside, or correct a sentence if the sentence was imposed in violation of the Constitution or federal statutory laws. A movant must show that the error, if left uncorrected, would result in a "fundamental miscarriage of justice." McCleskey v. Zant, 499 U.S. 467, 494 (1991). A petitioner may also bring a § 2255 claim to correct errors, such as ineffective assistance of counsel, that could have been raised at trial or on direct appeal only if the petitioner shows cause for the default and resulting prejudice. Id. at 494.
1. Apprendi
Petitioner claims that his sentence was imposed in violation of the Sixth Amendment right to trial by a jury, as interpreted by the Supreme Court in Apprendi v. New Jersey, 120 S.Ct. 2348 (2000). The Court inApprendi held "[t]he Constitution requires that any fact that increases the penalty for a crime beyond the prescribed statutory maximum, other than the fact of a prior conviction, must be submitted to a jury and proved beyond a reasonable doubt." Apprendi, 120 S.Ct. at 2350. The rule of Apprendi only applies where the non-jury factual determination increases the maximum sentence beyond the statutory range authorized by the jury's verdict. See United States v. Aguayo-Delgado, 220 F.3d 926, 933 (8th Cir. 2000).
Petitioner pled guilty to conspiracy to possess with intent to distribute, and to distribute cocaine and cocaine base, in violation of 21 U.S.C. § 846 and 841(b)(1)(A) [Count 1]. Regardless of drug quantity, the maximum statutory penalty under 21 U.S.C. § 841(b)(1)(C) is twenty years imprisonment. Petitioner was sentenced to 210 months, significantly less than the statutory maximum irrespective of drug quantity. Apprendi is inapplicable. See Augayo-Delgado, 220 F.3d at 929-30 (holding drug quantity was not required to be charged in the indictment and proven to the jury beyond a reasonable doubt where the district court imposed a sentence less than the statutory maximum without reference to drug quantity); United States v. Chavez, 230 F.3d 1089, 1091 (8th. Cir. 2000) (holding Apprendi inapplicable because defendant's sentence did not exceed the statutory maximum without regard to drug quantity). This Court finds no merit in Petitioner's claim that the failure to specify the quantity of drugs charged in the indictment violated his constitutional rights.
2. Ineffective Assistance of Counsel
Petitioner claims he received ineffective assistance of counsel when his counsel failed to pursue objections to the PSR concerning a "mitigating role" reduction under U.S.S.G. § 3B1.2 and to the calculation of his criminal history score. To prevail on an ineffective assistance of counsel claim, a petitioner must show (1) that his counsel's representation fell below an objective standard of reasonableness (performance prong); and (2) that any ineffectiveness prejudiced him, depriving him of a fair trial, and leaving the results of the trial unreliable (prejudice prong). See Garrett v. United States, 78 F.3d 1296, 1301 (8th Cir. 1996) (citing Strickland v. Washington, 466 U.S. 668 (1984)). To satisfy the performance prong, a defendant must show that his "counsel's performance fell below an objective standard of reasonableness." Hill v. Lockhart, 106 S.Ct. 366, 369 (1985). Evaluation of a claim of ineffective assistance of counsel is "highly deferential" with a strong presumption that counsel acted competently.Ford v. Lockhart, 904 F.2d 458, 462 (8th Cir. 1990). To show prejudice, "the defendant must show that there is a reasonable probability that, but for counsel's error, he would not have pleaded guilty and would have insisted on going to trial. . . . [and] the result of the proceeding would have been different." Hill, 106 S.Ct. at 369-70.
Petitioner alleges he received ineffective assistance of counsel when his attorney failed to pursue objections to the PSR pertaining to a "mitigating role" reduction under U.S.S.G. § 3B1.2(a), (b). The facts of this case fail to support Petitioner's claim. In the Plea Agreement and in sworn testimony, Petitioner agreed that Chapter 3 adjustments regarding role in the offense were not applicable. See Plea Agreement and Sentencing Stipulations, ¶ 6; Transcript of Plea Proceedings, at 10-11. Petitioner's voluntary assent invalidates his claim, because "a defendant may not challenge an application of the Guidelines to which he agreed in a plea agreement (unless he proves the agreement invalid or succeeds in withdrawing from it)." United States v. Barrett, 173 F.3d 682, 684 (8th Cir. 1999) (citing United States v. Early, 77 F.3d 242, 244 (8th Cir. 1996)). Petitioner cannot now challenge the application of the plea agreement stipulations.
The PSR's recommendation of a 3-level "aggravating role" enhancement stated Petitioner held a supervisory role in the instant offense involving five or more participants. See PSR, ¶ 49; Addendum to PSR, at A.5. Petitioner's own testimony affirmed his role as "one of essentially four people" arranging drug trafficking. See Transcript of Plea Proceedings, at 13. The record indicates Petitioner's role could not accurately be described as one of minor participant, eliminating counsel's duty to make a corresponding objection. Petitioner's claim is without merit.
Petitioner claims he received ineffective assistance of counsel at sentencing when his attorney failed to object to the PSR's criminal history score. Alleging prejudice, petitioner claims he should be in Criminal History Category II, not III, because he was not "on probation" at the time of the offense. Mem. in Support, at 20. The record does not support Petitioner's contention. See PSR, ¶ 55; Addendum to PSR, at A.6. Even if Petitioner's Criminal History Category were to be lowered to Category II, the applicable guideline range would become 168 to 210 months, thus encompassing the 210 month sentence. Failing to object does not fall outside of objectively reasonable conduct particularly when the objection would not result in altering the length of the sentence. Moreover, although the parties believed Petitioner would be in Criminal History Category II, they agreed the Court would calculate the actual category based on the PSR findings.
Petitioner's counsel represented him reasonably. Furthermore, Petitioner was not prejudiced by any alleged shortcomings. Petitioner's ineffective assistance claim fails.
IV. CONCLUSION
Based upon the foregoing, and all of the files, records and proceedings herein, IT IS HEREBY ORDERED that Petitioner's motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 [Doc. No. 539] is DENIED. The petition is DISMISSED.
BY THE COURT: