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United States v. Thomas

United States District Court, D. Kansas

April 17, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
MICHAEL THOMAS, Defendant.

          MEMORANDUM AND ORDER

          ERIC F. MELGREN, UNITED STATES DISTRICT JUDGE.

         In 2016, Defendant Michael Thomas pleaded guilty to one count of distribution of a controlled substance, heroin, and received a prison sentence of 97 months, to be followed by four years of supervised release. Defendant now seeks to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255 (Doc. 49). He argues that he received ineffective assistance of counsel due to his counsel's failure to object to the allegedly improper consideration of a prior misdemeanor battery conviction in the calculation of his criminal history for purposes of sentencing, and requests that the Court issue an amended judgment sentencing him to a prison term of 70 months. Because the Court properly attributed one point in calculating Defendant's criminal history due to his prior misdemeanor battery conviction, his counsel's failure to object to the consideration of the conviction in calculating Defendant's criminal history does not constitute ineffective assistance of counsel. Defendant's motion is denied.

         I. Factual and Procedural Background

         In 2015, Defendant was charged in a 14-count indictment with distributing controlled substances, conspiring to distribute controlled substances, conspiring to commit money laundering, and promoting, managing, establishing, carrying on, or facilitating unlawful activity in violation of 18 U.S.C. § 1952(a)(3). On August 11, 2016, Defendant entered into a plea agreement with the Government, and pleaded guilty to one count of distribution of a controlled substance, heroin, in violation of 21 U.S.C. § 841(a)(1). In accordance with the plea agreement, the Government agreed to seek dismissal of the remaining charges, to recommend a sentence at the low end of the recommended U.S. Sentencing Guidelines (“Guidelines”) range, and to not oppose a “safety valve” adjustment, so long as Defendant met the requirements of U.S.S.G. § 5C1.2.

         After Defendant pleaded guilty, a U.S. Probation Officer (“USPO”) prepared a presentence investigation report (“PSR”) and submitted it to the Court on December 5, 2016. The USPO calculated the total offense level as 29 and Defendant's criminal history as a category II. Defendant received a criminal history category of II due to his receipt of two points for prior offenses-one point for a prior misdemeanor battery conviction and one point for a prior perjury conviction.[1] Defendant was convicted of battery in California state court, and according to the PSR, Defendant received three years' probation for this offense. The PSR identified the applicable guideline imprisonment range as 97 months to 121 months. The Court determined that the PSR was accurate and sentenced Defendant to a prison term at the low end of the guideline imprisonment range, 97 months.

         Proceeding pro se, Defendant filed the current motion under 28 U.S.C. § 2255 on August 18, 2017. He argues that he received ineffective assistance of counsel because trial counsel allowed the Court to adopt an inaccurate calculation of his criminal history that improperly considered Defendant's prior conviction for misdemeanor battery in California state court. He alleges the improper consideration of this conviction prejudiced him in two ways: (1) he received an improper increase in his criminal history category, from I to II, and (2) he became ineligible for a two-level “safety-valve” reduction in his base offense level under U.S.S.G. § 5C1.2. He requests that the Court reduce his prison sentence to 70 months.

         II. Legal Standards

         Under 28 U.S.C. § 2255, a “prisoner in custody . . . claiming the right to be released” may petition the court to vacate, set aside, or correct a sentence on various grounds, including that “the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.”[2] When alleging constitutional error, “the petitioner must establish an error of constitutional magnitude which had a substantial and injurious effect or influence on the verdict.”[3] When alleging non-constitutional error, “the petitioner must show a fundamental defect in the proceedings resulting in a complete miscarriage of justice or an error so egregious that it amounted to a violation of due process.”[4] The petitioner is entitled to a hearing on his motion, “[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.”[5]

         “The Sixth Amendment guarantees a defendant the effective assistance of counsel at ‘critical stages of a criminal proceeding.' ”[6] This includes when a defendant pleads guilty, during sentencing proceedings, and on the first appeal as of right.[7] The Supreme Court established a two-prong test to evaluate whether a defendant received ineffective assistance of counsel in Strickland v. Washington.[8] Under this test, the defendant bears the burden of demonstrating that he received ineffective assistance of counsel and “must show [1] that counsel's representation ‘fell below an objective standard of reasonableness' and [2] that he was prejudiced as a result.”[9] “Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim.”[10] “To be entitled to a hearing on this claim, ” the petitioner “must have alleged facts which, if proven, would establish he received ineffective assistance of counsel.”[11]

         In evaluating whether counsel's representation fell below an objective standard of reasonableness, “substantial deference must be accorded to counsel's judgment.”[12] Counsel retains “wide latitude . . . in making tactical decisions, ” and the Court “must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.”[13] “[T]he defendant bears the burden of proving that counsel's representation was unreasonable under prevailing professional norms and that the challenged action was not sound strategy.”[14] To establish prejudice, “[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.”[15] “A reasonable probability is a probability sufficient to undermine confidence in the outcome.”[16] “This requires that ‘[t]he likelihood of a different result must be substantial, not just conceivable.' ”[17]

         III. Analysis

         Because the motion, files, and records of this case conclusively show that the PSR properly calculated Defendant's criminal history category as a category II, Defendant did not receive ineffective assistance of counsel in relation to the calculation of his criminal history category. Accordingly, Defendant is not entitled to relief, and the Court denies his motion without an evidentiary hearing.[18]

         A. Defendant did not receive ineffective assistance of counsel.

         Defendant argues that “[u]nder U.S.S.G. Section 4A1.2(c)(1), a violation of Cal. Penal Code Section 242 qualifies for one criminal history point only if ‘the sentence was a term of probation of more than one year or a term of imprisonment of at least thirty days.' ” Citing United States v. Caldwell, [19] he argues that because he paid a fine instead of serving any portion of his custodial sentence, he should not have been assessed a criminal history point for his prior battery conviction. Defendant alleges that his counsel's failure to object to the additional point resulting from Defendant's prior battery conviction constitutes ineffective assistance of counsel, and that this error resulted in a higher criminal history category and his disqualification for a “safety valve” reduction. Defendant misconstrues the applicable Guidelines and Caldwell, and cannot meet either prong of Strickland.

         1. Defendant properly received a criminal history point for his prior misdemeanor battery conviction.

         Section 4A.1.1 of the U.S.S.G. governs the calculation of “points” for purposes of determining Defendant's proper criminal history category. It instructs the Court to:

(a) Add 3 points for each prior sentence of imprisonment exceeding one year and one month.
(b) Add 2 points for each prior sentence of imprisonment of at least sixty days not counted in (a).
(c) Add 1 point for each prior sentence not counted in (a) or (b), up to a total of 4 points for this subsection.
(d) Add 2 points if the defendant committed the instant offense while under any criminal justice sentence . . . .
(e) Add 1 point for each prior sentence resulting from a conviction of a crime of violence that did not receive any points under (a), (b), or (c) above because such sentence was treated as a single sentence, up to a total of 3 points for this subsection.[20]

         Sections 4A1.1 and 4A1.2 of the Guidelines must be read together as “[t]he definitions and instructions in § 4A1.2 govern the computation of the criminal history points.”[21] Section 4A1.2(a)(1) defines the term “prior sentence” to mean “any sentence previously imposed upon adjudication of guilt, whether by guilty plea, trial, or plea of nolo contendere, for conduct not part of the instant offense.”[22] The definition of “prior sentence” is not limited to sentences including prison terms.[23] Indeed, “[a] ...


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