United States District Court, W.D. Arkansas, Fayetteville Division
MEMORANDUM OPINION AND ORDER
TIMOTHY L. BROOKS, UNITED STATES DISTRICT JUDGE.
before the Court are Defendant Angela Renee Burke's
Objections (Doc. 55) to Chief Magistrate Judge Erin
Wiedemann's Report and Recommendation
(“R&R”) (Doc. 53) on Ms. Burke's Motion
to Vacate, Set Aside, or Correct Sentence under 28 U.S.C.
§ 2255 (Doc. 47). The Court has reviewed all these
materials, along with the Government's Response (Doc. 49)
in opposition to Ms. Burke's Motion to Vacate, as well as
Ms. Burke's Reply (Doc. 52) in support. For the reasons
given below, the R&R is ADOPTED, and Ms.
Burke's Motion is DENIED.
Burke and her codefendant Ricardo Gonzalez were charged on
March 1, 2017 in a one-count Indictment with conspiring to
distribute methamphetamine. See Doc. 1. On April 27
of that same year, Ms. Burke entered a guilty plea to the
Indictment. See Doc. 15. Her codefendant's
guilty plea was entered two and a half months later.
See Doc. 23. Ms. Burke was sentenced on August 18,
2017 to 110 months imprisonment, followed by 4 years of
supervised release, along with a $100.00 special assessment
and a $2, 400.00 fine. See Doc. 31. Mr. Gonzalez was
sentenced almost two months later to 30 months imprisonment,
followed by 3 years of supervised release, and a $100.00
special assessment. See Doc. 42. Neither defendant
filed an appeal.
Burke filed her Motion to Vacate, Set Aside, or Correct
Sentence under 28 U.S.C. § 2255 on August 9, 2018.
See Doc. 47. In that Motion, Ms. Burke argues that
she received ineffective assistance of counsel at her
sentencing, and she identifies three separate grounds for
relief. All three grounds concern whether her advisory
sentencing range was properly calculated under the United
States Sentencing Guidelines. As noted above, Ms. Burke's
Motion has been fully briefed. The Magistrate Judge has
issued an R&R recommending that the Motion be denied, and
Ms. Burke has filed objections to the R&R. The R&R
and Motion are now ripe for decision.
prisoner in custody under sentence . . . claiming the right
to be released upon the ground that the sentence was imposed
in violation of the Constitution . . . may move the court
which imposed the sentence to vacate, set aside or correct
the sentence.” 28 U.S.C. § 2255(a). “If the
court finds . . . that there has been such a denial or
infringement of the constitutional rights of the prisoner as
to render the judgment vulnerable to collateral attack, the
court shall vacate and set the judgment aside and shall
discharge the prisoner or resentence him or grant a new trial
or correct the sentence as may appear appropriate.”
Id. at § 2255(b).
Sixth Amendment to the United States Constitution states that
“[i]n all criminal prosecutions, the accused shall
enjoy the right . . . to have the Assistance of Counsel for
his defence.” U.S. Const. amend. VI. This has been
interpreted by the United States Supreme Court as being a
right not just to the assistance of counsel, but to
effective assistance. See McMann v.
Richardson, 397 U.S. 759, 771 n.14 (1970). This right
applies at various “critical” stages of criminal
proceedings, including sentencing. See Gardner v.
Florida, 430 U.S. 349, 358 (1977). A person seeking
post-conviction relief on the grounds of unconstitutionally
ineffective assistance of counsel must show that her
counsel's performance was “deficient, ” and
also “that the deficient performance prejudiced the
defense.” See Strickland v. Washington, 466
U.S. 668, 687 (1984).
previously mentioned, Ms. Burke challenges three different
aspects of how her advisory sentencing range was calculated.
The first is that she contends her lawyer provided
ineffective assistance when he failed to object to the number
of criminal history points she was assessed in her
presentence investigation report (“PSR”). This
argument lacks merit because such an objection would have
been futile even if it were successful, owing to Ms.
Burke's status as a career offender under the United
States Sentencing Guidelines. The Guidelines require
all career offenders to be placed in criminal
history category VI, regardless of how many criminal history
points they have. See U.S.S.G. § 4B1.1(b).
second and third grounds fail for similar reasons. For her
second ground, Ms. Burke contends that her lawyer provided
ineffective assistance when he failed to ask the Court to
award her a reduction in her offense level under U.S.S.G.
§ 3B1.2 for having a minor role in the offense of
conviction. But “[w]hen a defendant is sentenced as a
career offender, adjustments for role in the offense under
Chapter Three, Part B do not apply.” See United
States v. Hubbell, 667 Fed. App'x 887, 888 (8th Cir.
2016). So given Ms. Burke's career offender status, it
would have been a purely “academic” exercise for
her attorney to seek a minor role reduction. See id.
for her third ground, Ms. Burke contends her Guidelines
offense level should have been based on the quantity of the
“mixture” containing methamphetamine she was
accountable for, rather than on the quantity of
“actual” methamphetamine she was accountable for.
Doing the former would have yielded a base offense level of
26, see Id. at § 2D1.1(c)(7), while the latter
resulted in a base offense level of 32, see Id. at
§ 2D1.1(c)(4). But again, doing so would have made no
ultimate difference, because all career offenders
subject to the penalties of 21 U.S.C. § 841(b)(1)(C) -as
Ms. Burke was, see Doc. 1; Doc. 15, ¶ 1-must
receive a base offense level of 32, regardless of what it
otherwise would have been. See U.S.S.G. §
objections to the R&R, Ms. Burke argues she should not
have been classified as a career offender. This argument is
meritless. The unobjected-to facts in the PSR are that Ms.
Burke was over the age of eighteen when she committed the
instant felony of conspiring to distribute methamphetamine,
see Doc. 27, ¶ 68; Doc. 1; Doc. 15, ¶ 1,
and that she had at least two prior felony convictions for
delivery of methamphetamine, see Doc. 27,
¶¶ 44, 51. This plainly meets all the elements of
career-offender status under the Guidelines. See
U.S.S.G. § 4B1.1(a) (“A defendant is a career
offender if (1) the defendant was at least eighteen years old
at the time the defendant committed the instant offense of
conviction; (2) the instant offense of conviction is a felony
that is . . . a controlled substance offense; and (3) the
defendant has at least two prior felony convictions of . . .
a controlled substance offense.”).
R&R also discusses a variety of alternative reasons why
Ms. Burke's Motion fails. The Court does not disagree
with any of those arguments in the R&R, but it sees no
need to discuss them here because the foregoing analysis
regarding Ms. Burke's career offender status is
sufficient to resolve the matter. An attorney does not render
ineffective assistance of counsel by declining to advance
futile or pointless arguments on his client's behalf.
See Anderson v. United States, 762 F.3d 787, 794
(8th Cir. 2014). Ms. Burke has not shown that she suffered
any prejudice from her attorney's decisions on these
matters, as she has not shown that there is any
“reasonable probability that . . . the result of the