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United States v. Kay

United States District Court, D. Minnesota

March 27, 2015

United States of America, Plaintiff,
Richard Allen Kay, Defendant. Criminal No. 11-218(1) ADM/TNL

Steven L. Schleicher, Esq., Assistant United States Attorney, Minneapolis, MN, on behalf of Plaintiff.

Richard Allen Kay, pro se.


ANN D. MONTGOMERY, District Judge.


This matter is before the undersigned United States District Judge pursuant to Richard Allen Kay's ("Kay") 28 U.S.C. § 2255 Motion to Vacate, Set Aside, or Correct Sentence ("2255 Motion") [Criminal Docket No. 248].[1] Kay alleges ineffective assistance of counsel based on: 1) counsel's failure to inform Kay of the possibility of an additional one-level sentence reduction to the total offense level pursuant to United States Sentencing Guideline § 3E1.1(b); 2) failure to argue for the additional offense level departure pursuant to § 3E1.1(b) at sentencing and on appeal; and 3) counseling Kay to plead guilty without a plea agreement from the Government. Kay also alleges that the Government acted vindictively, improperly, arbitrarily, and in bad faith for refusing to move for reduction of an additional offense level for acceptance of responsibility, and that § 3E1.1(b) is unconstitutional as applied. For the reasons set forth below, Kay's Motion is denied.


Kay was charged in a Superseding Indictment with 13 counts of offenses related to a controlled substance distribution conspiracy and conspiracy to engage in interstate transportation of stolen goods. See Superseding Indictment [Docket No. 93]. The Superseding Indictment specifically charged Kay with possession and intention to distribute 1000 kilograms or more of a mixture or substance containing marijuana in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. Id . 1-2.

Kay's jury trial was scheduled to begin on Thursday, February 2, 2012 [Docket No. 118]. Leading up to trial, Kay's attorney and the Government discussed a possible plea agreement. On Friday, January 27, 2012, the Government extended Kay a plea agreement that was to expire on January 30, 2012. 2255 Motion Exs. A, B, C. Kay ultimately rejected the Government's proposal, instead opting to plead guilty on January 31, 2012, without any formal plea agreement with the Government. Change of Plea Hr'g [Docket No. 122].

On June 15, 2012, Kay was sentenced to 200 months of imprisonment, to be followed by a five year supervised release term. Sentencing J. [Docket No. 178]. Kay appealed his sentence to the Eighth Circuit, which affirmed his conviction on June 25, 2013.[2] United States v. Kay, 717 F.3d 659 (8th Cir. 2013). Kay's petition for rehearing en banc was denied on July 31, 2013. Id . Kay's sentence therefore became final on October 29, 2013, 90 days after the en banc petition was denied. Kay's motion pursuant to 28 U.S.C. § 2255 was filed on September 22, 2014.


28 U.S.C. § 2255 provides a person in federal custody with a limited opportunity to collaterally attack the constitutionality, jurisdictional basis, or legality of her sentence. See United States v. Addonizio, 442 U.S. 178, 185 (1979). Relief is reserved for violations of constitutional rights and for a narrow range of injuries which were outside a direct appeal and which, if untreated, would result in a miscarriage of justice. See Poor Thunder v. United States, 810 F.2d 817, 821-22 (8th Cir. 1987). "While a guilty plea taken in open court is not invulnerable to collateral attack in a post conviction proceeding, the defendant's representations during the plea-taking carry a strong presumption of verity and pose a formidable barrier in any subsequent collateral proceedings.'" Voytik v. United States, 778 F.2d 1306, 1308 (8th Cir. 1985) (quoting Blackledge v. Allison, 431 U.S. 63, 74 (1977)).

A. Ineffective Assistance

1. Failure to Inform[3]

Kay first argues that his attorney failed to inform him of the possibility of obtaining an additional one-level sentence reduction under U.S.S.G. § 3E1.1(b) for timely acceptance of responsibility. In support, Kay attested that had he been properly advised of § 3E1.1(b), he "would have [pled] guilty immediately after the superseding indictment... in order to not jeopardize [his] potential to receive the full 3 point sentencing reduction for acceptance of responsibility." Kay Aff. [Docket No. 250] ¶ 4. The Government responds by asserting that Kay's sentence would have been the same even if his sentencing guideline range was reduced by one offense level ...

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