United States v. Sanders

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          HON. BARRY A. BRYANT, U.S. MAGISTRATE JUDGE

         Movant is Lacortney D. Sanders (“Sanders”) who is proceeding pro se. On December 27, 2018, Sanders filed a Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence. ECF No. 47. After being directed by the Court to respond, the Government filed a response to this Motion. ECF No. 54.

         The Motion was referred for findings of fact, conclusions of law, and recommendations for the disposition of the case. The Court has reviewed the Motion and the response; and based upon that review, the Court recommends this Motion be DENIED.

         1. Procedural Background:^[1]

         On February 25, 2015, Sanders was named in a two count Indictment filed in the Western District of Arkansas, El Dorado Division. ECF No. 1. Count One charged Sanders with conspiracy distribute more than 50 grams of actual methamphetamine and Count Two charged him with distribution of more than 50 grams of methamphetamine. Id.

         On January 25, 2017, Sanders appeared with counsel^[2] before the Honorable Susan O. Hickey for a change of plea hearing. ECF No. 31. A written plea agreement was presented to the Court that set forth the terms of Sanders's agreement to plead guilty to Count Two of the Indictment, distribution of more than 50 grams of actual methamphetamine. ECF No. 32. The Court accepted Sanders's plea and ordered a Presentence Investigation Report (“PSR”).

         Subsequently, the Probation Office issued Sanders's final PSR. ECF No. 38. Pursuant to the United States Sentencing Guidelines (“USSG”), the PSR found Sanders's base offense level to be 32. Id. at ¶ 44. Sanders was determined to be an organizer or leader of the criminal activity and was assessed a 4 level increase in the offense lever. Id. at ¶ 47. He was also assessed a 3 level decrease for his acceptance of responsibility. Id. at ¶¶ 51-52. This resulted in a Total Offense Level of 33. Id. at ¶¶ 53. Sanders's criminal history score was determined to be 2, which resulted in a criminal history category of II. Id. at ¶ 72. Sanders's statutory term of imprisonment was a minimum of 10 years up to life, and his advisory USSG sentencing range was 151 to 188 months imprisonment. Id. at ¶¶ 105-106.

         Sanders, through counsel, filed the following objections to the PSR and its recommendations:

• “That the defendant objects to paragraph 12 of the PSR which suggests that the criminal prosecution of Christopher Xavier Perry in 2014-2015 is a ‘related case' of the prosecution of the defendant.”

• “That the defendant is mindful of paragraph 15 of the plea agreement which acknowledges that at the sentencing hearing, the United States is permitted to bring to the Court's attention, all relevant information with respect to the defendant's background, character, and conduct. Nevertheless, the defendant objects to paragraphs 20-39 of the PSR which describes alleged conduct of the defendant and unnamed other individuals which the PSR treats as relevant conduct in determining the guideline range. Defendant disagrees that the events described in paragraphs 20-39 constitute relevant conduct.”

• “That the defendant objects to paragraph 44 of the PSR which sets the base offense level at 32. This calculation is defined in paragraphs 38 and 39 of the PSR. The defendant has pled guilty to delivery of 72.51 grams of actual methamphetamine. The guideline for this offense is found in USSG § 2D1.1. That section provides that an offense involving more than at least 50 grams but less than 150 grams of actual methamphetamine has a base offense level of 30. USSG § 2D1.1(c)(5).”

• “That the defendant objects to paragraph 47 of the PSR which provides for a 2 level increase based on the defendant being an organizer, leader, manager, or supervisor in the criminal activity.”^[3]

• “That based on these objections the total offense level (paragraph 53 of the PSR) should be 27 and the guideline imprisonment range (paragraph 105 of the PSR) should be 78-97 months.” On June 18, 2018, Sanders appeared before the Honorable Susan O. Hickey for sentencing. ECF No. 43. The Court explained the purpose of the hearing and Sanders's rights.

ECF No. 51, pp. 3-4. The statutory sentence range was explained. Id. at p. 7.

         The Court next addressed the parties's objections to the PSR. The Court denied the Government's first and second objections and determine that ¶ 47 of the PSR should reflect a 2 level increase, rather than a 4 level increase for Sanders's role in the offense. All of Sanders's objections were denied, except for Objection No. 3 which was withdrawn. The resulting USSG total offense level was therefore 31, Criminal History Category II, and the recommended sentence of imprisonment was 121-151 months. ECF No. 51, p. 18.

         At the conclusion of the hearing, the Court sentenced Sanders to 121 months imprisonment, 5 years supervised release, and a $100.00 special assessment. ECF No. 45. No. fine was imposed.

         The judgment was entered on June 20, 2018. Id. Sanders waived his right to directly appeal his conviction and sentence as a part of the Plea Agreement. ECF No. 32 ¶ 7.

         2. Instant Motion:

         On December 27, 2018, Sanders filed the instant pro se Motion under 28 U.S.C. § 2255 seeking to vacate, set aside, or correct his sentence, along with a memorandum brief in support thereof. ECF No. 47. The Court appointed counsel to represent Sanders and directed the United States to file a response to the Motion to Vacate, Set Aside, or Correct Sentence. ECF No.48. Appointed counsel filed a notice that no supplement to the Motion would be submitted. ECF No. 53. Sanders raised the following issues of ineffective assistance of counsel in this Motion:

a. Counsel failed to properly inform Sanders of the consequences of his guilty plea;

b. Counsel failed to object to the use of relevant conduct at sentencing; and

c. Counsel failed to adequately consult with Sanders about appeal.

         The Government responded (ECF No. 54), and this Motion is now ripe for consideration.

         3. Applicable Law:

         A § 2255 motion is fundamentally different from a direct appeal. The Court will not reconsider an issue, which was decided on direct appeal, in a motion to vacate pursuant to § 2255. See United States v. Davis, 406 F.3d 505, 511 (8th Cir. 2005); Dall v. United States, 957 F.2d 571, 572 (8th Cir.1992) (“Claims which were raised and decided on direct appeal cannot be re-litigated on a motion to vacate pursuant to 28 U.S.C. § 2255 .”).

         “Relief under 28 U.S.C. § 2255 is reserved for transgressions of constitutional rights and for a narrow range of injuries that could not have been raised on direct appeal and, if uncorrected, would result in a complete miscarriage of justice.” United States v. Apfel, 97 F.3d 1074, 1076 (8th Cir. 1996).

         As noted, Sanders's Motion raises three claims of ineffective assistance of counsel.

The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot ...