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United States v. Yankey

United States District Court, D. Kansas

September 28, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
DESMOND YANKEY, Defendant.

          MEMORANDUM AND ORDER

          J. THOMAS MARTEN, JUDGE.

         This 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.

         I. Background.

         In 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.

         Defendant 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.

         Defendant 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.

         The 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.

         A third 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.

         Defendant filed a direct appeal of the sentence but then voluntarily dismissed it. Dkt. 422. A few days later, he filed the instant § 2255 motion.[1] 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.

         In 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.

         II. Discussion.

         Section 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).

         With 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, [2] 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.

         Hindsight 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, ...


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