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Harris v. United States

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

June 11, 2018




         Pending before the Court is Movant's Motion to Vacate, Set Aside, or Correct Sentence, pursuant to 28 U.S.C. § 2255 (ECF No. 56, Motion to Vacate, Set Aside or Correct Sentence). This matter is assigned to the Honorable Robert C. Chambers, 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).


         On April 22, 2014, Defendant was charged in a four-count superseding indictment with one count of conspiracy to distribute one kilogram or more of heroin, in violation of 21 U.S.C. § 846, two counts of possession with intent to distribute 100 grams or more of heroin, in violation of 21 U.S.C. § 841(a)(1), and managing and controlling a premises for the purpose of storing and distributing heroin, in violation of 21 U.S.C. § 856(a)(2). Between the summer of 2013 and April 2, 2014, Defendant was alleged to have conspired with several other individuals to transport heroin from Detroit, Michigan for distribution in Huntington, West Virginia. Defendant also leased an apartment in Huntington, which was used to store, prepare and distribute heroin. He also recruited participants to distribute heroin, provided the heroin for distribution, and collected proceeds after such distribution.

         On July 8, 2014, defendant pled guilty, pursuant to a written plea agreement, to the conspiracy count of the superseding indictment. In the written plea agreement, the parties stipulated and agreed that the offense and relevant conduct attributable to Defendant was at least one kilogram, but less than three kilograms, of heroin. (ECF No. 120 at 11). The parties also agreed that Defendant's base offense level under the United States Sentencing Guidelines was 32, pursuant to USSG § 2D1.1(c)(4), and that a two-level enhancement for maintaining a premises for purpose of distribution, pursuant to USSG § 2D1.1(b)(16), and a three-level enhancement for acting as a manager/supervisor, pursuant to USSG § 3B1.1(b) would apply, for an adjusted offense level of 37. (Id. at 5). Defendant's plea agreement also contained a waiver of appeal and collateral attack, except for any claim based upon ineffective assistance of counsel. (Id. at 6). The plea agreement included the following acknowledgement:

I hereby acknowledge by my initials at the bottom of each of the foregoing pages and by my signature on the last page of this eight-page agreement that I have read and carefully discussed every part of it with my attorney, and that I understand the terms of this agreement, and that I voluntarily agree to those terms and conditions set forth in the agreement. I further acknowledge that my attorney has advised me of my rights, possible defenses, the Sentencing Guideline provisions, and the consequences of entering into this agreement, that no promises or inducements have been made to me other than those in this agreement, and that no one has threatened me or forced me in any way to enter into this agreement. Finally, I am satisfied with the representation of my attorney in this matter.

(Id. at 8). Defendant signed and initialed each page of the plea agreement, and signed the last page of the Stipulation of Facts. (Id. at 1-8, 11).

         During the July 8, 2014 plea hearing, the District Court conducted a thorough plea colloquy in accordance with Rule 11 of the Federal Rules of Criminal Procedure, including receiving Defendant's own admissions to the facts contained in the stipulation supporting his guilty plea, the government's presentation of testimony and evidence to support the essential elements of Count One (which the defendant admitted was substantially correct), and Defendant's acknowledgement of the rights he was waiving and his satisfaction with his attorney's representation. (ECF No. 155).

         An initial Presentence Investigation Report (“PSR”) was prepared by the United States Probation Office on August 18, 2014. As pertinent to the instant motion, in the initial version of the PSR, 906.5 grams of heroin was attributable to Defendant as relevant conduct. However, in light of his plea agreement stipulating that Defendant's total offense and relevant conduct was between one and three kilograms of heroin, the initial PSR placed him at a base offense level of 32. After other adjustments, the initial PSR calculated his total adjusted offense level to be 34, with a criminal history category of I.

         On September 22, 2014, the United States Probation Office revised the PSR. The revised PSR attributed 1, 355.3 grams of heroin to Defendant, which did not in any way alter his total adjusted offense level of 34. However, the revised PSR did amend Defendant's criminal history category, accounting for the fact that he was subject to an additional two criminal history points under USSG § 4A1.1(d) for committing his instant offense while on probation for a prior offense of Operating While Impaired (or “DUI”) in Michigan. Thus, the revised PSR attributed three criminal history points to Defendant, raising him to a criminal history category of II. Defendant did not lodge any objection to the revised PSR.

         On October 6, 2014, Defendant appeared before the District Court for sentencing. In conformity with the plea agreement, and the revised PSR, the District Court found that Defendant's base offense level was 32, and that he should be assessed a two-level enhancement under USSG § 2D1.1(b)(16), and a three-level enhancement under USSG § 3B1.1(b). After granting him a three-level reduction for acceptance of responsibility, Defendant's total adjusted offense level was determined to be 34.

         Defendant was also assessed three criminal history points, which placed him in criminal history category II. Thus, his sentencing guideline range was 168-210 months of imprisonment. Recognizing that the Sentencing Commission's adoption of an across-the-board two-level reduction in guideline levels for drug offenses would be retroactively applicable, and upon agreement of the parties, the District Court granted an additional two-level reduction, resulting in a total adjusted offense level of 32, and a sentencing guideline range of 135-168 months of imprisonment.

         Defendant's counsel vigorously argued for a downward variance to the mandatory minimum sentence of 120 months. However, the District Court declined to vary from the guideline range and sentenced Defendant to a 147-month term of imprisonment, followed by a five-year term of supervised release. (Judgment in a Criminal Case, ECF No. 138). Defendant did not appeal his conviction or sentence to the United States Court of Appeals for the Fourth Circuit.

         However, on June 17, 2015, Defendant filed the instant Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 (ECF No. 149). Defendant claims that he received ineffective assistance of counsel because his counsel failed to pursue an appeal, despite his directive to do so, and because he was allegedly promised that he would receive the mandatory minimum sentence of 120 months in prison. Defendant further contends that his counsel failed to lodge any objections at sentencing, including objecting to his revised PSR, which contained an increased amount of relevant conduct and criminal history, thus altering the guideline range, which, he contends, resulted in a sentence higher than necessary. Defendant also claims that the cumulative effect of these errors resulted in prejudice of a constitutional magnitude.[1]

         On March 11, 2016, Respondent (hereinafter “the Government') filed a Response to the section 2255 motion asserting that that defense counsel provided effective assistance at all pertinent stages of Defendant's criminal proceedings and there is no merit to any of Defendant's grounds for relief. (ECF No. 161). Accordingly, the Government requests that Defendant's section 2255 motion be denied and this matter be dismissed. (Id.) Defendant did not file a reply brief. This matter is ripe for adjudication.


         The Supreme Court addressed the right to effective assistance of counsel as guaranteed by the Sixth Amendment in Strickland v. Washington, 466 U.S. 668 (1984), in which the Court adopted a two-pronged test. The first prong is competence; movant must show that the representation fell below an objective standard of reasonableness. Id. at 687-91. There is a strong presumption that the conduct of counsel was in the wide range of what is considered reasonable ...

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