On February 21, 2003, a jury returned verdicts of guilty against Hourston to Count 1, aiding and abetting armed bank robbery, and Count 3, giving a false statement.*fn1 The jury also returned a verdict of not guilty to Count 2 which charged Hourston with aiding and abetting the use of a firearm during a crime of violence. Judgment was entered on the docket on May 22, 2003, sentencing Hourston to 87 months imprisonment on Count 1 and 60 months imprisonment on Count 3 to run concurrent with each other to be followed by a 3-year period of supervised release.
In her appeal, Hourston argued that she should not have received a 5-level sentencing enhancement for the possession of the firearm during a robbery, specifically arguing "that she should not have received the enhancement because she did not possess a gun, nor was she present during the robbery; the jury acquitted her of a related weapon charge; and there was no credible testimony justifying the enhancement."*fn2 The Eighth Circuit Court of Appeals affirmed the sentence on May 5, 2004, concluding that the Court did not err in assessing the firearm enhancement. The appellate court's holding on that issue is set out below:
After careful review, we conclude the court did not err in assessing the firearm enhancement. See United States v. Martinez, 339 F.3d 759, 761 (8th Cir. 2003) (standard of review). First, according to the trial testimony of Ms. Hourston's co-defendant, which the sentencing court was entitled to credit, Ms. Hourston obtained the gun for the robbery; thus it would have been reasonably foreseeable to Ms. Hourston that the gun would be displayed during the robbery. See U.S.S.G. §§ 1B1.3(a) (in case of jointly undertaken criminal activity, specific offense characteristics are determined based on "all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity," whether or not charged as conspiracy, that occurred during commission of offense of conviction, or in preparation for offense); United States v. Sarabia-Martinez, 276 F.3d 447, 450 (8th Cir. 2002) (sentencing judge's determination of witness credibility is virtually unreviewable on appeal); United States v. Cowan, 196 F.3d 646, 649-50 (6th Cir. 1999) (brandishing-firearm enhancement appropriate where defendant gave gun to juvenile to commit sting, as it was foreseeable that person borrowing gun to commit robbery planned to brandish, display, or possess the gun during the robbery), cert. denied, 529 U.S. 1061, 120 S.Ct. 1571, 146 L.Ed.2d 474 (2000). Second, the jury's acquittal of Ms. Hourston on the weapon charge was not dispositive. See United States v. Watts, 519 U.S. 148, 149, 157, 117 S.Ct. 633, 136 L.Ed.2d 554 (1997) (sentencing court may consider conduct of which defendant has been acquitted, so long as that conduct has been proved by preponderance of evidence); United States v. Wallace, 212 F.3d 1000, 100 5 (7th Cir. 2000) (firearm enhancement appropriate where defendant, who was convicted of aiding and abetting armed bank robbery, was acquitted of separate charge that he used firearm during crime of violence).
On January 24, 2005, the United States Supreme Court granted Hourston's petition for a writ of certiorari, vacated the judgment and remanded the case to the Eighth Circuit for further consideration in light of United States v. Booker, 125 S.Ct. 738 (2005).*fn3 By opinion filed on June 10, 2005, the appellate court concluded that Hourston did not preserve a Booker issue, she "was not entitled to plain-error relief because she cannot show that her substantial rights were affected," Booker did not affect the previous opinion, reinstated the prior opinion and again affirmed the sentence imposed.*fn4 Hourston's petitions for rehearing en banc and for rehearing by the panel were denied on August 16, 2005. The mandate was filed in this Court on September 20, 2005. The United States Supreme Court denied certiorari on February 27, 2006,*fn5 and the notice on that order was filed in this Court on April 17, 2006.
On March 1, 2007, Hourston filed a motion, pursuant to 28 U.S.C. §2255, to vacate, set aside or correct sentence.*fn6 As grounds for relief, she claims ineffective assistance of counsel, double jeopardy due to the firearm enhancement on the acquitted charge, multiplicity in violation of her Fifth Amendment rights by the firearm enhancement and using that as an element of the offense in a separate charge, plain error in the sentence, and ineffective assistance of counsel in failing to raise the refusal for downward departure and mitigating role on appeal. Hourston specifically requests removal of the 5-level enhancement and a resentencing.
She asserts that her counsel failed to offer arguments to the aggravating factor -- the firearm enhancement -- that caused her to have a greater sentence than determined by the jury who tried her and the fact that her firearm enhancement increased her sentence was unconstitutional under United States v. Booker, 543 U.S. 220, 268, 125 S.Ct. 738, 769 (2005), should have been raised at trial and during sentencing. While acknowledging that the credibility of a witness is virtually unreviewable on appeal, Hourston nevertheless argues that the credibility of the witness had already been determined by the jury when she was acquitted of any firearm charge and so the jury did not find the facts upon which the enhancement was based. She complains that her counsel should have fought the enhancement prior to sentencing rather than just taking the issue up on appeal.
Hourston continues that her counsel should have raised that, although she was a minor participant, a more culpable co-defendant made statements without any physical evidence to incriminate her and the gun enhancement eliminated her chance to receive a reduction in her sentence for participation in the Residential Drug treatment program and will follow her out into the community after her release. She also asserts that her counsel should have suggested that Hourston obtain a plea agreement so that, if she had taken a plea, her sentence would have been significantly different. Hourston further contends that her counsel should have requested statements and reports of government witnesses under the Jencks Act which would have allowed Hourston to make a better decision on whether to go to trial.
She argues that the firearm enhancement falls under the double jeopardy clause and was based only on the testimony of a co-defendant. Hourston alleges her counsel failed to raise the Jencks issue to show that the government planned on using the co-defendant's false testimony which could not constitute a preponderance of the evidence.
While Hourston raised the issue of the firearm enhancement as being double jeopardy in the context of the ineffective assistance of counsel claim, she also asserts it as a separate claim. Hourston argues that the testimony of only one co-defendant without further testimony or physical evidence cannot be sustained as a preponderance of evidence as the jury's choice to eliminate that charge was totally ignored resulting in a clear case of double jeopardy.
For her third ground, Hourston asserts that adding a firearm charge onto the aiding and abetting charge bank robbery is multiplicitous in violation of the Fifth Amendment since the charge of gun possession is already implied with a bank robbery where a weapon would be used.
Hourston contends that her sentence was given in plain error as the jury found that she was not guilty so the preponderance of the evidence was not sufficient to secure a conviction yet the Court was allowed to render the offense as guilty and enhance her sentence. She argues that the government failed to prove that the gun was purchased by her and so the charge was only supported by hearsay.
In her final ground for relief, Hourston argues that she should have been awarded a downward departure for a minor role and the only reason she received such an excessive sentence was because she exercised her right to go to trial. She states that the very reason she sought to go to trial was because she was such a minor participant and that her absence of participation in the actual offense would not make her as culpable as doing the offense outright. Hourston contends that although the Court felt that her loaning two ex-cons her sister's car made her an equal partner in the crime, the jury found her not guilty of the firearm charge and there is no evidence to show that she supplied the weapon as her co-defendant's rendition of the facts was highly suspicious. She continues that she was a first time offender, she was not in the bank, and she did not drive the "getaway" car although she was found to have money that was taken from the offense so that a minor role would have been a four level decrease. Hourston complains that the Court failed to review her true role and her counsel failed to object to the presentence report not crediting her with a role reduction.
On May 24th,*fn7 the government filed a response in opposition to the claims raised by Hourston. To the claim that her counsel provided ineffective assistance in negligently failing to preserve a basis for a Booker appeal, the government points out that the decision in Booker was not rendered until January 12, 2005, approximately eighteen months following the imposition of Hourston's sentence so her counsel could not have known of or recognized the necessity of laying the framework for an appeal based of the law announced in Booker. It continues that Hourston has failed to offer any reasoning as to how the lack of framework was "seriously deficient" and "prejudiced" her. As to Hourston's argument that counsel was also ineffective in failing to counter the credibility of the witness which the Court relied upon in applying the wrongful enhancement, the government asserts that Hourston is in essence attacking the firearm enhancement and sentencing guidelines claims are not cognizable on collateral review. The government states that, even if the Court were to find this claim to be cognizable, Hourston has failed to show that her counsel was "seriously deficient" and "prejudiced" her. It points to Hourston's acknowledgment that the Court had the ability to judge the credibility of the witness on which the firearm enhancement was based and, pursuant to the Jencks Act, the government is not required to provide defense counsel with a copy of the testimony of a witness until after the witness testifies.
Turning to the claim the firearm enhancement constituted double jeopardy in violation of the Fifth Amendment, the government points out that the Eighth Circuit addressed this same issue on appeal and found no error. It asserts that the Court found the witness's testimony as to the firearm to be credible and utilized that as a basis for enhancing the sentence as intended by the Congress for defendants who use a firearm during a robbery. In addition, the government counters that it did not engage in vindictive prosecution and the Court did not unconstitutionally sentence Hourston to a "cruel and unusual sentence."
The government argues that Hourston's assertion in her plain error claim that the witness who provided the firearm evidence was not credible and was not sufficient to constitute a preponderance of the evidence is not legally sound. It further asserts Hourston cannot prove that she would have received a more favorable sentence but for the alleged error because she has failed to show that she would have been acquitted aside from any possible error the Court may find.
Finally, the government contends that Hourston's downward departure argument is not cognizable on collateral review.
Pretrial proceedings with counsel and Hourston were held in chambers on February 20, 2003, before jury selection. The June 26, 2003 transcript of that conference provides, in relevant part, at page 10, line19 through page 13, line 7:
MS. DUKE: Your Honor, there was one other thing that I would like to have on the record, and that is, given the events that have taken place this week with the testing positive and things of that nature, I wanted to make the defendant aware of the plea offer that was extended. I know Ms. Byrd has conveyed that to her previously, but just for the benefit of the record and for all the parties so the defendant is aware that there was a plea offer extended, and so that she can make a knowing, voluntary choice at this point in time whether to accept that plea offer, I would appreciate the court letting me put that on the record at this point.
THE COURT: What is your position regarding that request?
MS. BYRD: I don't object to that, Your Honor.
THE COURT: Well, what is the unfair prejudice ...