United States District Court, D. Minnesota
MEMORANDUM OPINION AND ORDER
RICHARD H. KYLE United States District Judge
matter is before the Court on Defendant's July 12, 2016,
Motion to Vacate, Set Aside or Correct Sentence, brought
under 28 U.S.C. Section 2255. (Doc. No. 409). Defendant's
Motion will be denied, for the reasons discussed below.
AND FACTUAL HISTORY
Superseding Indictment filed on November 18, 2014, charged
Defendant and ten others with conspiracy to distribute
methamphetamine in violation of 21 U.S.C. §§
841(a)(1), 841(b)(1)(A), and 846, as well as three separate
counts of distribution of methamphetamine against Defendant
specifically, in violation of 21 U.S.C. §§
841(a)(1) and 841 (b)(1)(A). (Doc. No. 109.) On February 18,
2015, Defendant pleaded guilty pursuant to a plea agreement.
In the plea agreement, Defendant admitted to the charge of
methamphetamine conspiracy and certain acts in support of
that illicit agreement and understanding. (Doc. No. 159,
¶¶ 2(a)-(b).) In exchange for Defendant's plea
of guilty, the Government agreed that it would not seek a
superseding indictment or otherwise pursue charging Defendant
with additional drug distribution or drug conspiracy counts
resulting from its investigation. (Doc. No. 159, ¶ 1.)
Furthermore, as part of the resolution the Government also
agreed to forego filing an enhancement pursuant to 21 U.S.C.
§ 851, which otherwise would have increased
Defendant's mandatory minimum sentence to twenty years.
Id. Defendant acknowledged in the plea agreement
that the potential United States Advisory Guidelines ranges
of either 121-151 or 140-175 months imprisonment could apply,
depending upon a final determination of his criminal history
category. (Doc. No. 159, ¶ 6.g.) Notwithstanding any
determination under the Advisory Guidelines, Defendant agreed
that he was subject to a statutory mandatory minimum penalty
of ten years. Id.
the parties “waive[ed] all rights conferred by Title
18, United States Code, Section 3742, to appeal the sentence
on any ground except Defendant may appeal the sentence if the
period of confinement imposed is greater than 175 months and
the Government may appeal the sentence if the period of
confinement imposed is less than 121 months.”
Id. at ¶ 10. As part of this specific provision
in the plea agreement, Defendant acknowledged that “he
has discussed these rights with [his] attorney. Defendant
understands the rights being waived, and Defendant waives
these rights knowingly, intelligently, and
Pre-Sentence Investigation Report (“PSR”)
ultimately determined Defendant's Guidelines range was
140-175 months' imprisonment. (PSR, ¶ 150; Doc. No.
295 at 1.) Both in written pre-sentencing submissions and
during the sentencing hearing, Defendant urged the Court to
depart or vary downward and find that a lesser criminal
history category was applicable pursuant to United States
Sentencing Guidelines Section 4A1.3(b). Specifically,
Defendant argued that the category of V as determined in the
PSR overrepresented the seriousness of his criminal history
and the likelihood that he would reoffend, and that with a
lesser criminal history category IV the applicable Guidelines
range was 120 to 151 months imprisonment. (Sent. Tr. 4-5,
7-9.) The Court did not make a specific ruling either
granting or denying Defendant's motion. Instead, the
Court determined that “[a]s I look at the factors in
3553(a), I think a sentence that fits there and is sufficient
but not greater than necessary is 140 months.” (Sent.
Tr. 10.) The Court sentenced Defendant accordingly.
the Court's sentence of 140 months was at the bottom of
the applicable advisory Guidelines range. After imposing
various sentencing terms, the Court also addressed the plea
waiver in the plea agreement. First, the Court explained that
“in paragraph 10 of the plea agreement you agreed not
to appeal your sentence unless that sentence exceeded 175
months in prison. Obviously this sentence is not above 175,
so in my view you have given up, by that plea agreement, your
right to appeal or challenge the sentence.” (Sent. Tr.
the Court explained his right to be represented during an
appropriate appeal, but reiterated its position with regard
to Defendant's waiver. “Now, having said all of
that, I'll go back to what I said at the outset. In my
view you do not have that right.” Id. at 15.
The Court also instructed his counsel that “I don't
know whether you have previously covered with your client his
appeal rights or lack of appeal rights; but if you have not,
I would ask that you also do so.” Id.
appealed despite his written waiver. His only claim on appeal
was that this Court erred because it did not grant his §
4A1.3(b) motion regarding his criminal history and
consequently give him a lesser sentence. The Eighth Circuit
granted the Government's motion to dismiss his appeal in
light of the appeal waiver. Defendant timely filed the
instant Motion on July 12, 2016. (See Doc. No. 409.)
Defendant's Habeas Claims
28 U.S.C. § 2255 pleading briefly describes four
separate claims. First he makes two separate claims of
ineffective assistance. Id. at 4-12. As to both, he
maintains that but for that ineffective assistance there is a
“reasonable probability” he would have received a
lesser sentence. Id. Second, he argues this Court
violated Fed. R. Crim. P. 32 and his Due Process rights at
sentencing. Finally, Defendant claims the Government breached
the plea agreement and committed prosecutorial misconduct.
Id. at 13. On October 19, 2016, the Government
responded to each of these claims. Doc. No. 443. Defendant in
turn submitted supplemental pleadings, which once again
reiterate his original claims. See Doc. Nos.
prevail on a motion filed under § 2255, a petitioner
must show that his challenge raises a “fundamental
defect which results in a complete miscarriage of
justice.” Davis v. United States, 417 U.S.
333, 346 (1974). Section 2255 relief is extraordinary;
consequently, it “is reserved for transgressions of
constitutional rights and for a narrow range of injuries that
could not have been raised on direct appeal and, if
uncorrected, would result in a complete miscarriage of
justice.” United States v. Apfel, 97 F.3d
1074, 1076 (8th Cir. 1996). Thus, § 2255 “does not
encompass all claimed errors in conviction and
sentencing.” Sun Bear v. United States, 644
F.3d 700, 704 (8th Cir. 2011) (en banc) (quoting United
States v. Addonizio, 442 U.S. 178, 185 (1979)). Rather,
it encompasses jurisdictional and constitutional errors.
Id. Beyond that, its scope is “severely
limited.” Id. “[A] miscarriage of
justice cognizable under § 2255 occurs when the sentence
is in excess of that authorized by law.” Id.
evidentiary hearing on a § 2255 motion must be granted
unless the motion, files and records of the case establish
conclusively that the petitioner is not entitled to relief.
Kingsberry v. United States, 202 F.3d 1030, 1032
(8th Cir. 2000). But “[n]o hearing is required where
the claim ‘is inadequate on its face or if the record
affirmatively refutes the factual assertions upon which it is
based.'” Watson v. United States, 493 F.3d
960, 963 (8th Cir. 2007) (quoting Shaw v. United
States, 24 F.3d 1040, 1043 (8th Cir. 1994).
Defendant Has Failed to Show that His Defense Counsel Was
Counsel Cascarano Properly Represented ...