United States District Court, N.D. West Virginia, Martinsburg
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND
M. GROH CHIEF UNITED STATES DISTRICT JUDGE.
above-styled matter came before the Court for consideration
of the Report and Recommendation of United States Magistrate
Judge Michael John Aloi. ECF No. 741 in 3:14-CR-42-3.
Pursuant to Rule 2 of the Local Rules of Prisoner Litigation
Procedure, this action was referred to Magistrate Judge Aloi
for submission of a proposed report and recommendation
(“R&R”). On September 13, 2017, Magistrate
Judge Aloi filed an R&R in which he recommended that this
Court deny the Petitioner's Motion Under 28 U.S.C. §
2255 to Vacate, Set Aside, or Correct Sentence by a Person in
Federal Custody. ECF No. 741 in 3:14-CR-42-3.
22, 2014, the Petitioner was charged as one of fourteen
defendants in a 24-count indictment. The Petitioner was
charged in Count 1, conspiracy to distribute and possess
heroin, Count 5, aiding and abetting the distribution of
heroin, and Count 8, aiding and abetting possession with
intent to distribute heroin. On September 17, 2014, the
Petitioner pled guilty to Count 8, aiding and abetting
possession with intent to distribute heroin. The Government
dismissed Counts 1 and 5. ECF No. 239 in 3:14-CR-42-3.
January 12, 2015, the Petitioner appeared before this Court
for a sentencing hearing. ECF No. 391 in 3:14-CR-42-3. The
Court found that the base offense level was 32, based upon
the offense, which involved at least 400 kilograms, but less
than 700 kilograms of heroin, and the Petitioner's career
offender status. ECF No. 684 at 6 in 3:14-CR-42-3. The base
offense level was dropped three levels for the
Petitioner's acceptance of responsibility and upon the
Government's motion. Id. Accordingly, the Court
found a total offense level of 29. Id. at 7. Next,
the Court found that the Petitioner's criminal history
category was VI, based upon 13 points. Id.
Therefore, the Sentencing Guidelines
(“Guidelines”) recommended imprisonment in the
range of 151 to 188 months followed by supervised release of
at least three years. Id. The Petitioner's
counsel did not object to these findings, but argued that
“the end result Guidelines, even if they are
technically correct, [are not] appropriate in this
case.” Id. at 4, 7.
the Court sentenced the Petitioner to 115 months, a variant
sentence. Id. at 19. To support the downward
departure, the Court reasoned that there was no firearm or
violence involved in the offense, the offense was addiction
driven, the Petitioner was cooperative, and the Petitioner
became a career offender “by the skin of her
teeth.” Id. at 23-24.
Petitioner did not file a direct appeal and explains that she
did not know that she could appeal. ECF No. 514 at 5, 8 in
3:14-CR-42-3. However, on January 11, 2016, the Petitioner
filed a motion to vacate pursuant to 28 U.S.C. § 2255,
requesting a reduction of her sentence from 115 months to 84
months. The Petitioner argues that the Court: (1)
miscalculated the Petitioner's criminal history; and (2)
misused the career offender enhancement. Upon review, the
magistrate court issued an R&R recommending that the
Court deny and dismiss the § 2255 motion with prejudice.
Standard of Review
to 28 U.S.C. § 636(b)(1)(C), this Court is required to
make a de novo review of those portions of the
magistrate judge's findings to which objection is made.
However, the Court is not required to review, under a de
novo or any other standard, the factual or legal
conclusions of the magistrate judge as to those portions of
the findings or recommendation to which no objections are
addressed. Thomas v. Arn, 474 U.S. 140, 150 (1985).
Moreover, “[w]hen a party does make objections, but
these objections are so general or conclusory that they fail
to direct the district court to any specific error by the
magistrate judge, de novo review is unnecessary.”
Green v. Rubenstein, 644 F.Supp.2d 723, 730 (S.D.
W.Va. 2009) (citing Orpiano v. Johnson, 687 F.2d 44,
47 (4th Cir. 1982)). Failure to file timely objections also
constitutes a waiver of de novo review and the
petitioner's right to appeal this Court's Order. 28
U.S.C. § 636(b)(1)(C); Snyder v. Ridenour, 889
F.2d 1363, 1366 (4th Cir. 1989); United States v.
Schronce, 727 F.2d 91, 94 (4th Cir. 1984).
objections to Magistrate Judge Aloi's R&R were due
within fourteen days after Petitioner was served, pursuant to
28 U.S.C. § 636(b)(1)(C) and Rule 72(b) of the Federal
Rules of Civil Procedure. Petitioner was served with the
R&R on September 21, 2017 and filed objections on
September 28, 2017. Accordingly, this Court will undertake a
de novo review of those portions of Magistrate Judge
Aloi's findings to which objection is made. The Court
will review the remainder of the R&R for clear error.
Court will address each of the Petitioner's claims in
Miscalculation of Criminal History
Ground One, Petitioner alleges that the Court miscalculated
her criminal history. ECF No. 514 at 5 in 3:14-CR-42-3. She
does not allege any supporting facts, but states that there
have been a “violation of constitutional rights”
as follows, “due process, ineffective assistance of
counsel, cruel and unusual punishment, [and] cannot deprive a
U.S. citizen of life, liberty, or property.”
Id. Accordingly, it appears that the Petitioner