Opinion
Cr. No. 97-276(7) (MJD/JGL)
January 29, 2002
Petitioner on his own behalf.
Jeffrey S. Paulsen, Assistant United States Attorney for and on behalf of Respondent.
ORDER
The above-entitled matter came before the Honorable Michael J. Davis on a Petition for modification of Petitioner's sentence pursuant to 18 U.S.C. § 3582(c) and 18 U.S.C. § 3553(c). As will be discussed below, these statutory provisions do not allow for a modification of the sentence under the facts alleged. Accordingly, the Court will treat Petitioner's motion as one to correct, set aside or vacate Petitioner's sentence pursuant to 28 U.S.C. § 2255.
Background
Petitioner pleaded guilty to Count Two of Indictment, which charged Petitioner with conspiracy to distribute and to possess with the intent to distribute cocaine base in violation of 21 U.S.C. § 846 and 841(b)(1)(A). Prior to sentencing, the government filed a motion for a downward departure pursuant to 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1 based on Petitioner's substantial assistance in testifying against his co-defendants regarding their illegal gang and drug activities, and specifically the Coppage arson murders. At sentencing, the Court determined that Petitioner's total offense level was 35 and his criminal history category was VI, resulting in a guideline range of 292-365 months imprisonment. The Court granted the government's motion for a downward departure, however, and sentenced Petitioner to a term of 120 months imprisonment, followed by a five-year term of supervised release.
Petitioner appealed his sentence to the Eighth Circuit Court of Appeals. Petitioner's attorney filed an Anders brief in support of Petitioner's appeal, and moved to withdraw as counsel. In an unpublished opinion on September 14, 2000, the Eighth Circuit affirmed Petitioner's sentence and granted counsel's motion to withdraw. United States v. Adams, No. 99-1054 (8th Cir. September 14, 2000).
On August 29, 2001, Petitioner filed this motion to modify his sentence pursuant to 18 U.S.C. § 3582(c)(B) and 3553(e). Section 3582(c)(B) provides that a court may not modify a defendant's sentence was the sentence has been imposed, except that the court may modify a sentence to the extent otherwise permitted by statute or by Rule 35 of the Federal Rules of Criminal Procedure in the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission. Petitioner does not argue, nor can he, that he was sentenced within a range that has subsequently been lowered. In fact, the Petitioner was sentenced substantially below the applicable range of 292-365 months.
Section 3553(e) provides that upon motion by the government, the Court may sentence below the statutory minimum sentence. Prior to sentencing, the government made such a motion, and the Court, in its discretion sentenced Petitioner to the statutory minimum term of 120 months. Section 3553(e) is not a mechanism for modifying a sentence already imposed.
The Court will therefore treat Petitioner's motion as one pursuant to 28 U.S.C. § 2255. Petitioner argues that he is entitled to a modification of his sentence based on ineffective assistance of counsel, breach of the plea agreement, a defective indictment, and the Court's alleged discriminatory reference to his gang membership during his sentencing.
Analysis
A petition filed pursuant to 28. U.S.C. § 2255 is not a substitute for a direct appeal. Anderson v. United States, 25 F.3d 704, 706 (8th Cir. 1994). Collateral relief under § 2255 may be available for claims not raised on direct appeal, if such claims involve jurisdictional or constitutional issues, or involve a fundamental defect which inherently results in a complete miscarriage of justice and the Petitioner shows cause for the procedural default and resulting prejudice. Id.
Failure of Defense Counsel To File An Appeal
Petitioner raises a claim of ineffective counsel by asserting that his attorney failed to file an appeal of his sentence. To succeed on this claim, Petitioner must show that his counsels' performance constituted ineffective assistance of counsel under the test set out in Strickland v. Washington, 466 U.S. 668 (1984). This test requires Petitioner to show that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed by the Sixth Amendment. Id., at 687. Additionally, Petitioner must show that but for counsel's deficient performance, the result of the trial would have been different. Id.
In reviewing counsel's performance, there is a strong presumption that all significant decisions fell within `the wide range of professionally competent assistance . . . The correct inquiry is not whether counsel's decision was correct or wise, but whether it `was an unreasonable one which only an incompetent attorney would adopt' considering all the circumstances. . . . Prejudice, for purposes of an effective assistance of counsel claim, means that `one's confidence in the outcome of the trial is undermined.
United States v. Flynn, 87 F.3d 996, 1000 (8th Cir. 1996) (citations omitted). If Petitioner fails to prove unreasonable performance, the prejudice prong need not be addressed, and vice versa. Id. Failure to file an appeal after being instructed by the client to do so is per se ineffective. United States v. Witherspoon, 231 F.3d 923, 926 (4th Cir. 2000).
Contrary to Petitioner's assertions, counsel did file an appeal on Petitioner's behalf, albeit an Anders brief. On appeal, counsel set forth Petitioner's position that he did not receive an adequate downward departure at sentencing, and challenging the amount of drugs attributable to Petitioner. The Eighth Circuit reviewed the arguments, and affirmed Petitioner's sentence in an opinion dated September 14, 2000. The Court thus finds that Petitioner has failed to show that counsel was ineffective relative to filing an appeal on his behalf.
Breach of Plea Agreement
Petitioner also argues that the government breached the Plea Agreement by not recommending a sentence of less than 120 months in consideration for Petitioner's substantial assistance. He also argues that his counsel promises him that he would receive a sentence of approximately five years. The Court finds that the record refutes these claims.
The Plea Agreement contemplated a sentencing guideline range of either 360 months to life imprisonment or 292-365 months imprisonment. Plea Agreement, ¶ 12. The Plea Agreement also provided that if the Petitioner cooperated fully and truthfully, and rendered substantial assistance, the government would make a motion for a downward departure of between 7 and 9 levels, which would provide a guideline range of 120 to 175 months. Id. at ¶ 4. The Plea Agreement also provided that the Petitioner understood that the amount of the departure, if any, was ultimately up to the Court's determination. Id.
When entering his guilty plea in court, Petitioner stated that he understood that there were no promises as to what the Court would do regarding his sentencing. Tr. Plea 11:20-23 (February 20, 1998). Petitioner also acknowledged that he understood that the agreement he entered into was with the government, and did not bind the Court as to sentencing. Tr. Plea 12:1-4 (February 20, 1998). The Court asked Petitioner: "Have there been any promises made to you by anyone other than what's in the plea agreement and the sentencing stipulations which you have signed to get you to enter a plea of guilty here today?" Tr. Plea 12:14-17. To which the Petitioner answered "No." Id. 12:18.
At sentencing, the Court determined the applicable guideline range to be 292-365 months. The government recommended that the Court depart 7 to 9 levels if its motion for a downward departure was granted. The Court departed 9 levels, which provided for a guideline range of 120-150 months. The Court then sentenced Petitioner to 120 months.
The record clearly shows that there was no promise by the government for a recommendation of a term of imprisonment of less than 120 months, and that Petitioner clearly understood this. There is also no support in the record that his counsel promised him a sentence of less than 120 months. Therefore, Petitioner cannot show a breach of the Plea Agreement.
Defective Indictment
Petitioner further contends that the Indictment to which he pleaded guilty was defective because it did not specify a drug quantity for the offense with which he was charged. In Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), the Supreme Court held that, "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." However, the Eighth Circuit has held that Apprendi claims cannot be raised on collateral review. United States v. Moss, 252 F.3d 993, 997 (8th Cir. 2000).
Even if the Court could decide this claim, Apprendi would not be implicated here because Petitioner received a sentence of 120 months, which is well below the statutory maximum of life imprisonment. 21 U.S.C. § 841(b)(1)(A). See United States v. Aguayo-Delgado, 220 F.3d 926, 933 (8th Cir. 2000) (holding that a fact determined by a judge may permissibly alter a defendant's sentence within the statutory sentencing range).
Court's Comments on Petitioner's Gang Membership
Petitioner claims that the Court's comments during his sentencing regarding his membership in the 6-0-Tre gang are evidence of bias against him. Petitioner did not raise this claim on appeal, therefore he must show cause for the procedural default and resulting prejudice. This he has failed to do.
The Court make reference to the fact that the gang Petitioner helped to create, the 6-0-Tre gang was involved in raw violence. Tr. Sentencing at 14. The Court further acknowledged that Petitioner nonetheless testified truthfully at trial, and that the Court would reward Petitioner for his assistance by departing down nine levels. Id. Given that 120 months was the lowest term contemplated by the Plea Agreement, Petitioner has failed to show that he was prejudiced by the Court's statements.
IT IS HEREBY ORDERED that the Petitioner's Motion to Modify his Sentence pursuant to 28 U.S.C. § 2255 DENIED.