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Cheeks v. United States

United States District Court, S.D. West Virginia, Charleston

May 30, 2018

RAHKEEM CHEEKS, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          PROPOSED FINDINGS AND RECOMMENDATION

          DWANE L. TINSLEY, UNITED STATES MAGISTRATE JUDGE.

         Pending before the Court is Movant's Motion to Vacate, Set Aside, or Correct Sentence, pursuant to 28 U.S.C. § 2255 (ECF No. 36). This matter is assigned to the Honorable John T. Copenhaver, Jr., United States District Judge, and it is referred to the undersigned United States Magistrate Judge for submission of proposed findings and a recommendation for disposition, pursuant to 28 U.S.C. § 636(b)(1)(B).

         PROCEDURAL HISTORY

         On July 1, 2015, Movant Rahkeem Cheeks (hereinafter “Defendant”), was charged with five counts of knowingly and intentionally distributing a quantity of heroin, in violation of 21 U.S.C. § 841(a)(1). (ECF No. 12). Throughout his district court proceedings, Defendant was represented by Assistant Federal Public Defender George H, Lancaster, Jr.

         On August 26, 2015, Defendant pled guilty to all of the counts of the indictment, without a written plea agreement. (ECF No. 24). On January 8, 2016, Defendant appeared for sentencing. The district court determined that Defendant's total offense level under the United States Sentencing Guidelines was 29, with a criminal history category of VI, yielding a guideline range of 151-188 months of imprisonment. This calculation included an enhancement under USSG 4B1.1 after the district court found that Defendant qualified as a career offender based upon two prior felony controlled substance convictions. Defendant did not object to the application of the career offender enhancement.

         The district court varied below the bottom of the Guideline range and sentenced Defendant to 96 months of imprisonment, followed by a three-year term of supervised release. A Judgment to that effect was entered on March 5, 2014. (ECF No. 32, Judgment in a Criminal Case).

         Defendant did not file a direct appeal to the United States Court of Appeals for the Fourth Circuit. However, on May 27, 2016, Defendant filed the instant section 2255 motion (ECF No. 56), asserting the following grounds for relief:

Ground One: Sentencing counsel was ineffective violative of the Sixth Amendment when he failed to challenge the enhancement of Cheeks' sentence pursuant to him being categorized as a Career Offender without an information pursuant to 21 U.S.C. § 851 being filed.
Mr. Cheeks is charged with violations of 21 U.S.C. § 841(a)(1) and § 841(b)(1)(C). Accordingly, before the Government can seek to make him qualify for an enhanced penalty pursuant to the Career Offender provision of the United States Sentencing Guidelines it was required to have filed an information pursuant to 21 U.S.C. § 851 before Mr. Cheeks pled guilty to these charges, notifying him that it was intending on utilizing his prior convictions in order to qualify him for enhanced penalties under the sentencing guidelines, giving Mr. Cheeks the opportunity to challenge in State court these prior convictions. If Mr. Cheeks' attorney George H. Lancaster, Jr., would have properly researched the issues concerning his sentence, he would have found out that no 21 U.S.C. § 851 information was filed and that as a result that the Government had no lawful authority upon which to base its request that Mr. Cheeks be sentenced as a Career Offender upon. Being that this premise is simple, basic, hornbook law, if he would have raised it via objection to the Presentence Report, and/or even if merely, at sentencing, there is a reasonable probability that the sentencing court would have sustained the objection, and not sentenced Mr. Cheeks as a Career Offender. Accordingly, Mr. Cheeks has suffered prejudice as a result of his sentencing counsel's ineffectiveness, being that if he had properly objected to the improper/illegal Career Offender sentencing designation, a reasonable probability exists that Mr. Cheeks' sentence would have been a lot lower that what it currently is.
Ground Two: Sentencing counsel was ineffective violative of the Sixth Amendment when he failed to challenge the enhancement of Cheeks' sentence pursuant to him being categorized as a Career Offender even though one of the prior convictions that was used did not qualify him as such.
According to the Presentence Investigation Report Mr. Cheeks was convicted of Possession with Intent to Distribute Cocaine within 1, 000 Feet of a School in Essex County, New Jersey Court on October 18, 2002. This case was designated as 2002-3-954. At any rate, as Mr. Cheeks informed his sentencing counsel, Mr. George H. Lancaster, Jr., he never pleaded guilty to such a charge on October 18, 2002. As he told Lancaster, Mr. Cheeks pled guilty to Possession of a Controlled & Dangerous Substance Within 1, 000 Feet of a School, on October 18, 2002, and in exchange for this plea of guilty, the Essex County District Attorney agreed to dismiss the following charges: i) Possession of Cocaine; ii) Possession With Intent to Distribute Cocaine; iii) Distribution of Cocaine; and iv) Distribution of Cocaine Within 1, 000 Feet of a School. Thus, being that this prior conviction, the one that Mr. Cheeks was actually convicted of, does not have as a part of it the elements of import, export, manufacturing, distribution, this can not lawfully be used to qualify Mr. Cheeks as a Career Offender. Hence, if Lancaster would have properly researched this particular quality of the prior conviction that was being used against Mr. Cheeks, via the Presentence Investigation Report, by way of the United States Sentencing Guidelines, his trained eye would have readily and/or instantly seen that this particular prior conviction did not qualify him as a Career Offender under the United States Sentencing Guidelines, and consequently he could've prepared and presented an objection to Mr. Cheeks being designated as a Career Offender, specifically based upon this prior conviction. Prejudice-wise, if Mr. Lancaster would have done this, being that it is hornbook, black letter law, that 1.) the sentencing court cannot utilize the wrong, incorrect, prior conviction to deem and/or sentence a defendant as a Career Offender, and 2.) the sentencing court cannot utilize a drug offense that does not have as its elements, importing, exporting, manufacturing, distributing, to qualify a defendant as a Career Offender, then a reasonable probability exists that this Court would not have sentenced Mr. Cheeks as a Career Offender. Accordingly, being that Lancaster failed to file any objections to and/or based upon this prior conviction, being that if he would have done so, a reasonable probability exists that he would have received a less severe sentence, then he is/was ineffective as counsel, violative of the Sixth Amendment.
Ground Three: Sentencing counsel was ineffective violative of the Sixth Amendment when he failed to challenge the enhancement of Cheeks' sentence pursuant to him being categorized as a Career Offender even though one of the prior convictions that was used carried a maximum sentence of only five (5) years.
Also, similarly to the claim that Cheeks is making within Ground Two, and based upon the same prior conviction case - 2002-3-954 (Essex County, NJ) - if Cheeks' counsel would have properly investigated and researched this prior conviction, Mr. George H. Lancaster, Jr., would have seen that this prior conviction only carried a maximum penalty of 5 (five) years, and as such, it could not be used to qualify him as a Career Offender. As such, if Lancaster would have properly researched this particular quality of this prior conviction that was being used to qualify Mr. Cheeks as a Career Offender pursuant to Chapter 4 of the United States Sentencing Guidelines, once he discovered and/or found out the maximum sentence of the prior conviction, he consequently could have prepared and presented an objection to Mr. Cheeks being designated a Career Offender, specifically based upon this prior conviction not carrying severe enough of a maximum penalty to be utilized in such a manner. Hence, prejudice-wise, if Mr. Lancaster would have done this, being that this objection is based upon clear, pure, unadulterated, Supreme Court of the United States precedent, and being that the sentencing court is bound by such precedent, then a reasonable probability exists that this Court would not have sentenced ...

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