United States District Court, W.D. Arkansas, Texarkana Division
MAGISTRATE JUDGE'S REPORT AND
BARRY A. BRYANT, U.S. MAGISTRATE JUDGE
is Lacortney D. Sanders (“Sanders”) who is
proceeding pro se. On December 27, 2018, Sanders
filed a Motion under 28 U.S.C. Â§ 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.
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
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.
January 25, 2017, Sanders appeared with counsel 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”).
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 Â¶Â¶ 105-106.
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.”
• “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.
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.
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.
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 ¶
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
c. Counsel failed to adequately consult with Sanders about
Government responded (ECF No. 54), and this Motion is now
ripe for consideration.
§ 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 .”).
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).
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