United States District Court, D. Kansas
MEMORANDUM AND ORDER
THOMAS MARTEN, JUDGE.
matter is before the court on defendant Desmond Yankey's
motion under 28 U.S.C. § 2255 to vacate or correct his
sentence. Dkt. 423. The motion alleges that defendant's
revocation sentence was based on a finding that he committed
a felony offense while on supervision, when it fact it was as
a misdemeanor. Defendant claims his attorney provided
ineffective assistance of counsel by failing to properly
research this offense and by failing to properly advise him
about it, leading to a sentence “that was many months
longer than what it would have been had he pleaded not
guilty.” Dkt. 423 at 14. For the reasons stated herein,
the motion is granted.
2013, defendant was found guilty by a jury of unlawful
distribution of cocaine. He was sentenced by the Hon. Monti
L. Belot to 27 months imprisonment, followed by three years
of supervised release. Dkt. 326. The conviction was affirmed
on appeal. Dkt. 341.
began supervised release on June 26, 2015. On April 5, 2017,
he appeared before the court for a final revocation hearing,
based on a Violation Report alleging three violations: (1)
use of a controlled substance; (2) possession of a controlled
substance; and (3) commission of a state or local crime,
identified as “Larceny from a Building.” Dkt. 393
at 3. The Report identified the latter as a Grade B violation
and the first and second matters as Grade C violations. The
Report noted that, based on a Grade B violation and a
criminal history category of III, the guidelines suggested a
custodial sentence of 8 to 14 months.
was represented at the April 5 revocation hearing by Asst.
Federal Public Defender Steven K. Gradert. At the hearing,
defendant admitted to the first two violations, but not to
the third violation involving theft. Dkt. 409 at 5-8. The
court subsequently found that the most serious violation was
a Grade B, with a criminal history category of III, resulting
in a policy statement range of 8 to 14 months. Id.
at 10-11. The court noted defendant's extensive history
of failed drug tests and imposed a sentence of 14 months
imprisonment followed by one year of supervised release.
Judgment was entered on April 6, 2017. Dkt. 401. As confirmed
by the judgment, defendant was found guilty only on the two
drug-related violations, both Grade C violations, and not the
theft violation, which was the only violation identified in
the Report as a Grade B violation.
court held a second hearing on April 10, 2017, after
defendant requested a furlough. At that hearing, Mr. Gradert
informed the court he had mistakenly assumed the theft
alleged in the Violation Report was a felony, but further
investigation showed it was a misdemeanor. He thus argued
defendant's policy statement range should have been 5 to
11 months based on a Grade C rather than a Grade B violation.
Dkt. 410 at 6. Counsel asked the court to correct the
sentence under Rule 35(a) and to impose a sentence within the
5 to 11 month range. The Government took no position on the
reduction. Id. at 10. The court concluded a
reduction was appropriate in view of the misdemeanor charge
and stated it would reduce the sentence to 9 months.
Id. at 11.
hearing was held on April 25, 2017, during which the court
stated that it had reviewed the Rule 35 question but found no
authority allowing it to change the original sentence. It
thus stated the original 14 month sentence would stand. Dkt.
411 at 3-4. Defense counsel argued that basing the sentence
on a Grade B violation was a “clear error” within
the meaning of the rule, while the Government argued Rule
35(a) did not allow the court to reconsider application of
the sentencing guidelines. Id. at 14-15. The court
stated that in view of defendant's conduct, the original
14-month sentence was fair and met the statutory factors.
Id. at 16.
filed a direct appeal of the sentence but then voluntarily
dismissed it. Dkt. 422. A few days later, he filed the
instant § 2255 motion. As indicated previously,
defendant makes several allegations of ineffective assistance
of counsel, including that counsel advised him to stipulate
to a higher-severity violation than he committed, that
counsel did not know the severity of the violation and did
not properly investigate it, that counsel did not discuss the
option of pleading not guilty to the alleged Grade B
violation, and that counsel advised him there was evidence to
support a felony (Grade B) theft charge. Dkt. 423. Defendant
argues he was prejudiced by counsel's performance, as
shown by the fact the court would have reduced the sentence
to 9 months had the issue been timely presented.
response, the Government contends there is no evidence in the
record that defense counsel failed to provide reasonably
effective assistance, or that counsel's performance
prejudiced the defendant. It argues that defendant's
admissions at the revocation hearing show that he knowingly,
freely and voluntarily admitted his guilt. Finally, it argues
that defendant's sentence was reasonable, as it was
within the statutory maximum and was based on the court's
consideration of the statutory factors.
2255 provides in part that a prisoner in custody under a
federal sentence, who claims that the sentence was imposed in
violation of the laws of the United States, or that the
sentence is otherwise subject to collateral attack, may move
for correction of the sentence. 28 U.S.C. § 2255(a). If
the court finds that the sentence was not authorized by law
or is otherwise open to collateral attack, the court shall
set the judgment aside and grant appropriate relief,
including correction of the sentence. § 2255(b).
the benefit of hindsight, it is now clear that the original
sentence resulted from two mistakes. One was the
classification of the theft as a Grade B violation. The
record shows defendant was charged with two misdemeanors as a
result of the alleged theft, namely petit theft (Wichita Mun.
Code 5.42.010(a)) and unlawful use of a financial card
(Wichita Mun. Code 5.42.035(a)(1)). Dkt. 427 at 2-10. Both
were punishable by imprisonment for not more than one year,
meaning they qualified as Grade C rather than Grade B
violations under USSG § 7B1.1. Even if it is conceivable
that defendant's conduct might have been charged as a
felony,  the record indicates that by the time of
the revocation hearing, defendant had been charged only with
misdemeanor offenses. See Dkt. 409 at 9 (Government
representing that a charge had been filed the day prior to
the hearing); Dkt. 427 at 4 (noting city prosecutor agreed to
charge defendant with theft and unlawful use of a financial
card). The record thus shows that the alleged theft should
have been a Grade C violation.
also shows the court erred by considering the theft in
determining the policy statement range. The record shows
defendant admitted to the two drug violations - both Grade C
violations - but did not admit to the theft violation, and
the court accordingly found him guilty only of the two drug
violations. Dkt. 401. Thus, regardless of whether the theft
should have been classified as a Grade B or a Grade C
violation, that violation was not adjudicated by the court,
and the court should have found that Grade C represented the
most serious violation committed by defendant. And in turn,