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United States v. Craig

United States District Court, D. Kansas

October 30, 2017




         This matter is before the Court on defendant Christopher Craig's pro se Motion To Vacate Under 28 U.S.C. § 2255 (Doc. #1009) filed March 16, 2017. On June 26, 2017, the United States filed its response to defendant's motion. Response To Motion (Doc. #1021). For reasons stated below, the Court overrules defendant's motion and denies a certificate of appealability.

         Factual Background

         The Tenth Circuit Court of Appeals summarized defendant's relevant criminal conduct as follows:

         The overarching conspiracy in which Defendant was involved operated in the Kansas City area and lasted from January 2006 until December 2012. Two men, Gregory Moore and Daniel Bryant, headed the conspiracy with the general purpose of distributing marijuana, cocaine, and cocaine base around the Kansas City metropolitan area. Defendant and others helped allocate these substances at Moore's and Bryant's direction.

         After several encounters with law enforcement officers throughout the six years the conspiracy operated, defendant's most significant criminal foray came in August 2012 when he organized the attempted robbery of rival drug-dealer Brandon Campbell. He recruited two cousins, DaRyan Pryor and Arterrius Pryor, to actually commit the robbery. Defendant drove DaRyan and Arterrius to an apartment complex in south Kansas City, gave them guns and T-shirts to wear as face masks, and remained in the driver's seat of his vehicle and watched while the two men attempted to rob Campbell in the parking lot of the complex. In the midst of the robbery attempt, Campbell drew his gun and shot DaRyan. DaRyan later died from his wounds.

United States v. Craig, 808 F.3d 1249, 1251-52 (10th Cir. 2015). On November 20, 2013, a grand jury returned a 27-count indictment which charged defendant with conspiring to manufacture, to possess with intent to distribute, and to distribute five kilograms or more of cocaine, 280 grams or more of cocaine base and marijuana, and maintaining a drug involved premises in violation of 18 U.S.C. § 2 and 21 U.S.C. §§ 841(a)(1), 846, 856 (Count 1) and two counts of using a communication facility to facilitate a drug trafficking crime in violation of 21 U.S.C. § 843(d) (Counts 15 and 16). Second Superseding Indictment (Doc #439) at 4, 8.

         On February 3, 2014, the day trial was scheduled to begin, defendant pled guilty to all three counts without a written plea agreement. Petition To Enter Plea Of Guilty And Order Entering Plea (Doc. #560); Transcript Of Change Of Plea Hearing (Doc. #874) filed November 20, 2014. After his plea, defendant faced a statutory minimum of ten years and maximum of life in prison under 21 U.S.C. § 841(b)(1)(A). When calculating his offense level, the Court applied a murder cross-reference under United States Sentencing Guidelines (“U.S.S.G.”) § 2D1.1(d) for the death of DaRyan, a leadership role enhancement under U.S.S.G. § 3B1.1(a) and an obstruction of justice enhancement under U.S.S.G. § 3C1.2. Presentence Investigation Report (“PSIR”) (Doc. #777) filed July 11, 2014, ¶¶ 73-86. The Court found that his final offense level was 43, for a guideline sentence of life in prison. Id., ¶ 128. On August 28, 2014, the Court sentenced defendant to life in prison. See Minute Entry (Doc. #804) filed August 28, 2014. Bruce R. Kips represented defendant during his plea negotiations and sentencing. Motion To Vacate (Doc. #1009) at 10.

         Defendant appealed his sentence and judgment. Notice Of Appeal (Doc. #807) filed September 4, 2014. On appeal, he argued that the Court erred when it sentenced him beyond the 40-year statutory maximum for the drug quantity which the PSIR attributed to him (Ground 1); applied the murder cross-reference (Ground 2); applied the leadership enhancement (Ground 3); applied the obstruction of justice enhancement (Ground 4) and imposed a substantively unfair sentence (Ground 5). See Craig, 808 F.3d at 1254 n.5, 1255, 1259-61. Defendant withdrew Ground 1 at oral argument. Id. at 1254 n.5. The Tenth Circuit affirmed the Court's sentence and judgment. See id.

         On March 16, 2017, defendant filed a pro se motion to vacate his sentence under 28 U.S.C. § 2255. Motion To Vacate (Doc. #1009). Defendant asserts that the Court erred when it sentenced him beyond the statutory maximum based on facts not found by a jury (Claim 1); applied the murder cross-reference (Claim 2) and applied the leader enhancement (Claim 3). Defendant also argues that Kips provided ineffective assistance of counsel because he failed to object to the mandatory statutory sentencing range (Claim 4); failed to relay one of defendant's counter-offers to the government during plea negotiations (Claim 5); lied to defendant's family about his sentence (Claim 6) and failed to investigate defendant's competency (Claim 7).[1]


         The Court applies a stringent standard of review when analyzing Section 2255 petitions. The Court presumes that the proceedings which led to defendant's conviction were correct. See Klein v. United States, 880 F.2d 250, 253 (10th Cir. 1989).

         I. Judicial Error

         A. Insufficient Findings For Statutory Sentencing Range

         Defendant argues that the Court violated his Sixth Amendment rights because it sentenced him beyond the statutory maximum and based his sentence on facts a jury did not find beyond a reasonable doubt. Motion To Vacate (Doc. #1009) at 4.

         Defendant raised this claim on direct appeal. See Brief of Appellant at 11-14, 2015 WL 1138181. Defendant argued that neither the factual basis of his plea nor the PSIR found that he met the drug quantity threshold - five kilograms or more of cocaine or 280 grams or more of cocaine base - for Section 841(b)(1)(A). Id. at 12. He contended that the Court therefore should have sentenced him under Section 841(b)(1)(B), which has a lower drug quantity threshold and a statutory maximum sentence of 40 years Id. Appellate counsel withdrew this claim during oral argument on appeal, and the Tenth Circuit did not rule on it. See Craig, 808 F.3d at 1254 n.5.

         The government asserts that defendant's claim is barred because he already pursued this issue on appeal. Response To Motion (Doc. #1021) at 4-7. Defendant may not use Section 2255 motions to test the legality of matters which should have been raised on appeal. United States v. Bolden, 472 F.3d 750, 751-52 (10th Cir. 2006). Section 2255 precludes defendant from raising issues not addressed in his direct appeal, unless he can show (1) cause and actual prejudice resulting from the alleged errors or that (2) a fundamental miscarriage of justice will occur if the claims are not addressed. Bousley v. United States, 523 U.S. 614, 622 (1998). To establish cause, defendant must “show some external objective factor - such as governmental interference, unavailability of the relevant factual or legal basis or ineffective assistance of counsel - prevented [him] from raising the issue on direct appeal.” United States v. Torres-Laranega, 473 F. App'x 839, 842 (10th Cir. ...

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