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United States v. Dornbush

United States District Court, Tenth Circuit

January 21, 2014




This case comes before the court on defendant’s motion for reduction of sentence pursuant to 28 U.S.C. § 2255. (Doc. 35). The motion has been fully briefed and is ripe for decision. (Doc. 38).[1]Defendant’s motion is denied for the reasons herein.

I. Facts

On December 19, 2005, defendant entered a plea of guilty to an indictment charging a violation of 18 U.S.C. § 922(g)(1). (Doc. 14). Defendant was sentenced to 78 months followed by a two-year term of supervised release. On July 18, 2011, defendant began serving her term of supervised release.

On April 30, 2012, defendant appeared before the court on a petition for a modification of her supervised release due to concerns by the probation officer. Defendant had been maintaining an unauthorized relationship with Alvin Garza, a felon and substance abuser.[2] Garza was arrested for driving under the influence and defendant and her minor child were in the vehicle with Garza at the time of the arrest. Defendant did not report the law enforcement contact to probation and, additionally, was falsifying her monthly report forms and financial information to the probation officer. At the hearing, the court advised defendant of her responsibilities to the probation office and the consequences of a future violation of her supervised release.

On January 1, 2013, however, defendant tested positive for Methamphetamine. Defendant initially denied use and claimed it was the result of using a coffee filter that had been used to manufacture the drug. Defendant ultimately admitted to her drug use during a party on New Year’s Eve.

On January 17, 2013, the probation officer filed a petition to revoke defendant’s supervised release alleging that defendant had violated the terms by possessing Methamphetamine. On February 19, 2013, the court held a hearing on the violation. At the hearing, defendant waived the opportunity for a hearing and admitted to the violation after being informed by the court that she could serve a sentence of 18 to 24 months. The court revoked supervised release and sentenced defendant to 24 months.

Defendant filed this motion asserting that her counsel was ineffective for failing to present a defense and that the sentence was unreasonable.[3]

II. Analysis

A. Ineffective Counsel

Defendant claims her counsel was ineffective for failing to present a defense and discredit the probation officer. A defendant making an ineffective-assistance-of-counsel claim must show both that counsel's performance “fell below an objective standard of reasonableness” and that “the deficient performance prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687–88 (1984). Review of counsel's performance under the first prong of the Strickland test is highly deferential. Barkell v. Crouse, 468 F.3d 684, 689 (10th Cir. 2006).

At the hearing, defense counsel urged the court to allow defendant to attend inpatient treatment, highlighted defendant’s achievements and characterized the drug use as a mistake. The court considered the arguments made by counsel but was not persuaded. After a review of the transcript, the court finds defense counsel’s performance did not fall below an objective standard of reasonableness.

B. Reasonableness of the Sentence

Defendant’s three remaining grounds for relief all revolve around the reasonableness of her sentence and her belief that the probation officer was lying to the court.

First, defendant contends that the court erred in revoking her supervised release, citing 18 U.S.C. § 3583(g)(4).[4] 18 U.S.C. § 3583(g) provides:

If the defendant-(1) possesses a controlled substance in violation of the condition set forth in subsection (d);
* * * or
(4) as a part of drug testing, tests positive for illegal controlled substances more than 3 times over the course of 1 year; the court shall revoke the term of supervised release and require the defendant to serve a term of imprisonment not to exceed the maximum term of imprisonment authorized under subsection (e)(3).

Section 3583(g)(4) is not applicable in this case as defendant did not admit to merely testing positive for a controlled substance. Defendant admitted to possession of Methamphetamine, a controlled substance. Therefore, the court was required to revoke her supervised release as set forth in section 3583(g)(1).[5]

Second, defendant contends that the probation officer was untruthful and misrepresented her conduct to the court. Defendant, however, was given an opportunity for a hearing. Instead, defendant chose to admit to the allegation and waive her right to a hearing.

Therefore, defendant’s allegations concerning the probation officer’s conduct are not supported by the record. Moreover, the court sentenced defendant based on her admitted conduct and not on any alleged statement made out of the courtroom.[6]

Finally, defendant argues that the sentence was unreasonable and she should have been released from custody and discharged from supervised release. (Doc. 35 at 25). In imposing a sentence after revocation of supervised release, the court must consider both the advisory policy statements in Chapter 7 of the Sentencing Guidelines and the factors provided in 18 U.S.C. § 3553(a). United States v. Cordova, 461 F.3d 1184, 1188 (10th Cir. 2006). Sentences imposed within the correctly formulated Sentencing Guidelines range are presumptively reasonable. United States v. Kristl, 437 F.3d 1050, 1055 (10th Cir. 2006). The sentence in this case was within the guideline range and, therefore, reasonable. The court clearly articulated its reasons for the sentence in court and in the judgment.

III. Conclusion

Defendant’s motion for relief is denied. (Doc. 35).[7]


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