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United States v. Bise

United States District Court, W.D. Arkansas, Fayetteville Division

May 4, 2018

UNITED STATES PLAINTIFF/RESPONDENT
v.
RANDY BISE DEFENDANT/PETITIONER

          MAGISTRATE JUDGE REPORT and RECOMMENDATION

          James R. Marschewski United States Magistrate Judge

         Before the court is the Petitioner's Motion to Vacate, Set Aside, or Correct a Sentence Pursuant to 28 U.S.C. Section 2255 (Doc. 54) filed July 12, 2016. The United States of America filed a Response (Doc. 59) on August 15, 2016. The case was reassigned to the undersigned on April 10, 2018 and is ready for Report and Recommendation.

         I. Background

         On May 7, 2014, Randy BISE (“Bise”) was named in a three-count Indictment filed in the United States District Court for the Western District of Arkansas. (Doc. 1). Counts One and Two charged Bise with Production of Child Pornography and Count Three charged him with Possessing Child Pornography. (PSR ¶¶ 1-3).

         On June 16, 2014, Bise appeared with counsel before the Honorable Timothy L. Brooks for a change of plea hearing. (PSR ¶ 7). A written plea agreement was presented to the Court setting forth that Bise would agree to plead guilty to Count One and Two of the Indictment charging him with Production of Child Pornography as that term is defined in Title 18, United States Code, Section 2256, in or affecting interstate and foreign commerce by any means; all in violation of Title 18, United States Code, Sections 2251. (PSR¶ 1). Within the plea agreement, paragraph 10 set out the statutory range for Counts One and Two, namely 15 to 30 years. (Doc. 16, pp.6-7).

         On September 15, 2014, the Probation Office filed Bise's Final PSR with the Court. (Doc. 23). Overall the PSR guideline calculation reflected a guideline total offense level of 42 and criminal history category I, with an advisory guideline range of 360 to Life (which equated to 720 months due to the statutory max). (Doc 23, PSR, ¶ 85). The Government lodged two objections related to the grouping of Count 1 and 2. (See PSR Addendum) The net effect of the Government's objections added one level to the offense calculation, resulting in the advisory guideline range of Life or 720 months. Prior to sentencing, both the Government and the defendant, by and through Mr. Schisler, filed sentencing memorandums. The defense argued on Bise's behalf that a variance down to a sentence of the statutory minimum of 15 years was appropriate. (Doc. 26).

         On November 6, 2014, Bise appeared for sentencing. (Doc. 23). At sentencing, the Court inquired if Bise was still satisfied with his counsel, which he indicated he was satisfied. (See Sentencing Minutes, Doc. 27). Additionally, the Court inquired of Bise if he and Mr. Schisler had a chance to read and discuss the PSR. (Id.). In addressing the outstanding objections, the Court ultimately granted the Government's grouping objection, despite argument against such by the defense, resulting in a guideline range of Life (720 months). However, the Court also granted the defendant's request for a downward variance, although not to the extent requested in the sentencing memorandum. (See Statement of Reasons, Doc 30). Specifically, Bise was sentenced to 30 years imprisonment that equated to sentence 30 years less than what the guidelines recommended. (Id.). Bise ultimately appealed his sentence. However, the Eighth Circuit affirmed such and issued its mandate on October 7, 2015. (Doc. 53-1).

         On July 13, 2016, Bise filed the instant Motion to Vacate, Set Aside, or Correct a Sentence Pursuant to 28 U.S.C. § 2255 (the “§ 2255 Motion) contending he was denied effective assistance of counsel "during pretrial, trial, plea, sentencing, and direct appeal proceedings". (Doc. 26, p. 4).

         II. Discussion

         A. Ineffective Assistance of Counsel:

         The Sixth Amendment of the Constitution of the United States affords a criminal defendant with the right to assistance of counsel. U.S. Const. amend. VI. The Supreme Court “has recognized that ‘the right to counsel is the right to effective assistance of counsel.' “ Strickland v. Washington, 466 U.S. 668, 698, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (citing McMann v. Richardson, 397 U.S. 759, 771, n. 14, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970)).

         A defendant “faces a heavy burden” to establish ineffective assistance of counsel pursuant to § 2255. DeRoo v. United States, 223 F.3d 919, 925 (8th Cir. 2000); 2254. Cox v. Wyrick, 642 F.2d 222, 226 (C.A.Mo., 1981) To establish a claim of ineffective assistance of counsel, the Defendant must satisfy the two-part test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

         First, under the “deficient performance” component, he must show that his counsel “made errors so serious that counsel was not functioning as the 'counsel' guaranteed [him] by the Sixth Amendment.” Strickland, 466 U.S. at 687. That showing can be made by demonstrating that counsel's performance “fell below an objective standard of reasonableness.” Wiggins v. Smith, 539 U.S. 510, 522, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003)(internal citations omitted.

         Second, under the “prejudice” component, he must demonstrate that “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694. see also, i.e. United States v. Ledezma-Rodriguez, 423 F.3d 830, 836 (8th Cir. 2005)(post-conviction relief will not be granted on a claim of ineffective assistance of trial counsel unless the petitioner can ...


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