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United States v. Warren

United States District Court, D. Kansas

April 17, 2019




         This case is before the court on defendant Arrick Warren's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (Doc. 103). Defendant claims in his § 2255 motion that defense counsel did not inform him of the possibility of several sentencing enhancements and drug quantity calculation issues before he entered a plea of guilty (without a plea agreement). Specifically, defendant claims that defense counsel, Dionne Scherff, failed to explain that (1) seized currency could be converted to crack cocaine to determine defendant's base offense level; (2) powder cocaine could be converted to crack cocaine to determine his base offense level; (3) defendant could receive a firearm enhancement; and (4) defendant could receive an enhancement for maintaining a premises for the purpose of manufacturing or distributing a controlled substance. Defendant claims that each of these facts individually would have been significant enough to him to cause him to go to trial instead of pleading guilty. Alternatively, defendant claims that cumulatively, counsel's failure to explain the possible outcomes at sentencing was ineffective assistance. In support of his claims, defendant submitted an affidavit stating that he would not have pleaded guilty had he received the alleged effective assistance.

         The government responded, arguing alternatively that (1) the record conclusively shows that defendant is not entitled to relief despite defendant's new claims in his affidavit; or (2) the affidavit of Ms. Scherff shows that she did, in fact, fully advise defendant of the possible sentencing outcomes. In her affidavit, Ms. Scherff refers to a number of letters between counsel and defendant, as well as meetings.

         I. Background

         Defendant was charged in a Second Superseding Indictment with (1) two counts of distribution of cocaine base; (2) one count of possession with intent to distribute cocaine base; and (3) one count of maintaining a drug-involved premises-all within 1000 feet of a playground. On January 24, 2014, defendant pleaded guilty to all charges without a plea agreement. The court inquired into many aspects of the plea, including its voluntariness, defendant's knowledge of the consequences, and the discretion involved in sentencing, among other things. Once the court was satisfied that the guilty plea was made knowingly and voluntarily with defendant's full comprehension of the charges and consequences, it accepted the guilty plea and ordered the United States Probation Office to prepare a Presentence Investigation Report (“PSR”).

         The PSR calculated defendant's total offense level to be thirty-five, which, coupled with his criminal history category of III, led to an initial sentencing range of 210 to 262 months in prison. This range was subsequently lovered to 168 to 210 months. Defendant objected to several portions of the PSR: (1) the conversion of powder cocaine to cocaine base (“crack”); (2) the conversion of U.S. currency to crack; and (3) the application of a two-level enhancement for a gun. Both parties filed sentencing memoranda on these issues, and the court conducted a sentencing hearing over the course of four days.

         On November 19, 2014, the court sentenced defendant to 180 months in prison with six years of supervised release. Defendant appealed, and Ms. Scherff continued to represent defendant on appeal. The Tenth Circuit ultimately affirmed. Defendant then filed the instant motion pro se.

         II. Legal Standard

         Title 28 U.S.C. § 2255 allows “a prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground 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 [to] move the court which imposed the sentence to vacate, set aside or correct the sentence.” Not every asserted error of law can be raised in a § 2255 motion. Davis v. United States, 417 U.S. 333, 346 (1974). The appropriate inquiry is whether the claimed error of law was a “fundamental defect which inherently results in a complete miscarriage of justice.” Id. (quoting Hill v. United States, 368 U.S. 424, 428 (1962) (quotation marks omitted)). The court also looks at whether the motion presents exceptional circumstances, where the need for the remedy is apparent. See id.

         The court must hold an evidentiary hearing unless the motion, files, and records conclusively show that the prisoner is not entitled to relief. United States v. Galloway, 56 F.3d 1239, 1240 n.1 (10th Cir. 1995). Defendant bears the burden of alleging facts which, if proven, would entitle him to relief. See Hatch v. Oklahoma, 58 F.3d 1447, 1471 (10th Cir. 1995). The allegations must be specific and particularized, not general or conclusory. Id. The court is not required to fashion defendant's arguments for him where his allegations are merely conclusory in nature and lack supporting factual allegations. United States v. Fisher, 38 F.3d 1144, 1147 (10th Cir. 1994).

         III. Analysis

         Defendant claims that he received ineffective assistance of cousel because Ms. Scherff failed to explain to him the how the federal sentencing guidelines would impact his case-which rendered his plea involuntary.

         To prove ineffective assistance of counsel, defendant must show that (1) counsel's representation fell below an objective standard of reasonableness and (2) counsel's deficient performance prejudiced defendant. Roe v. Flores-Ortega, 528 U.S. 470, 476-77 (2000) (citing Strickland v. Washington, 466 U.S. 668, 688 (1984)). The court must judge the reasonableness of counsel's challenged conduct on the facts of the particular case. Id. Judicial scrutiny of counsel's performance is highly deferential. Id. In addition, counsel's performance must have been completely unreasonable-not merely wrong. Boyd v. Ward, 179 F.3d 904, 914 (10th Cir. 1999).

         Defendant's new allegations regarding pre-plea conversations with counsel directly contradict information provided in previous proceedings. In defendant's plea petition, defendant acknowledged under oath, inter alia, that (1) he could receive up to sixty years in prison; (2) his attorney discussed with him how the sentencing guidelines might apply; (3) the court could take into account all relevant criminal conduct; and (4) he was satisfied with his counsel's advice and help. (Doc. 59.) These statements ...

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