United States District Court, D. Minnesota
RICHARD H. KYLE United States District Judge
matter is before the Court on Defendant's May 18, 2016,
handwritten letter (dated May 14, 2016), which requests the
Court's assistance regarding his consecutive sentence
pursuant to 18 U.S.C. § 924(c)(1) and a claim of
potential ineffective assistance of counsel. Doc. No. 248.
Shortly thereafter on June 22, 2016, Defendant caused a
separate filing which is formally described as a habeas
pleading. See Doc. Nos. 255, 256, and 256-1. In his
accompanying memorandum as part of his June 22, 2016,
pleadings, Defendant makes clear that his sole basis for
§ 2255 relief is a claim pursuant to Johnson v.
United States, 576 U.S., 135 S.Ct. 2551 (2015).
See Doc. Nos. 255 and 256.
Court treats both his May 18, 2016, and June 22, 2016,
pleadings as a Motion to Vacate, Set Aside or Correct
Sentence, brought under 28 U.S.C. § 2255.
Defendant's Motion will be denied, for the reasons
AND FACTUAL HISTORY
March 3, 2014, Defendant was named in a twelve-count
indictment with four others. Defendant faced charges of
conspiracy to distribute 50 grams or more actual
methamphetamine, a Schedule II controlled substance, in
violation of Title 21, United States Code, Section
841(b)(1)(A)(viii) (Count 1); possession with intent to
distribute 111 grams of actual methamphetamine, a Schedule II
controlled substance, in violation of Title 21, United States
Code, Sections 841(a)(1) and 841(b)(1)(A)(viii), and
approximately 63.8 grams of a mixture and substance
containing a detectable amount of cocaine, a Schedule II
controlled substance, in violation of Title 21 United States
Code, Sections 841(a)(1) and 841(b)(1)(C) (Count 2); using
and carrying a firearm during and in relation to the drug
trafficking crime charged at Count 2, namely, a Glock .40
caliber semiautomatic pistol and an Intratec semiautomatic
pistol, in violation of Title 18, United States Code, Section
924(c)(1)(A)(i) (Count 3); and felon in possession of a
firearm in violation of 18 U.S.C. Sections 922(g)(1) and
924(a) (Count 4). Doc. No. 1.
was first represented by attorney Chris Ritts, Esq. On July
7, 2014, pursuant to the terms of a written plea agreement,
Defendant pleaded guilty to Count 1 (methamphetamine
conspiracy) and Count 3 (using and carrying a firearm). Doc.
No. 143. During the plea hearing, Defendant acknowledged that
he had “read [the plea agreement] before [he] signed
it, ” “read it carefully, ” “read it
more than once, ” and “talked to [his] lawyer
about it.” Plea Transcript (“PT”) at 6.
counsel went through the Plea Agreement
(“Agreement”) with Defendant line by line. PT at
7-13. Defendant was again apprised that he was facing a
10-year mandatory minimum sentence for Count 1 as well as a
consecutive 5-year term of imprisonment for Count 3 (PT at 8,
10-11); that he was facing a Guidelines range of 108 to 135
months for Count 1 (PT at 10); that under the Guidelines he
was facing an additional and consecutive 60-month term of
imprisonment for Count 3 (PT at 8); and that he had discussed
his rights with his counsel (PT at 12).
addressing the consecutive and mandatory minimum sentencing
aspects of the case, this Court asked Defendant if he
understood that he was “looking at a sentence of . . .
180 months.” PT at 13. Defendant said he understood.
Id. The Court also inquired if Defendant understood
that he would not be able to appeal his sentence unless it
was greater than 180 months. Id. at 14. Defendant
said he understood, and when prompted by the Court stated:
“It means I can't go back and try to reduce my
sentence after I agree to this.” Id. The Court
in turn responded: “It means that if you're
sentenced at 180 months, you have no recourse.”
Id. Defendant again stated he understood.
Id. at 14, 27. Defendant similarly confirmed that no
one had forced him to sign the Agreement (PT at 16); and that
no one made any promises to him other than what was contained
in the plea agreement materials (PT at 17). Further,
Defendant stated that he understood that if he pleaded guilty
he could not change his mind later (PT at 4, 5, 15, 17 and
27). Defendant also acknowledged that he was guilty of Counts
1 and 3 (PT at 40-41). The Court formally accepted
Defendant's pleas of guilty to Count 1 and Count 3, and
made a special finding that Defendant was guilty and that he
knowingly, intelligently and voluntarily entered into his
guilty plea (PT at 38-41).
was pending sentencing, this Court released Defendant on the
same terms imposed upon his arraignment. Two weeks later,
agents arrested defendant for new crimes, namely distribution
and possession with intent to distribute cocaine. Defendant
was held in custody and indicted separately for that offense
conduct. See 14-CR-271 (RHK/JSM). Counsel Chris
Ritts withdrew from representation, and attorney Gary Wolf,
Esq. undertook Defendant's two separate causes. Doc. No.
208. Defendant pleaded guilty to distribution of cocaine, in
violation of 21 U.S.C. §§ 841(a)(1) and
841(b)(1)(C) on November 21, 2014, to resolve the second
indictment. Defendant was then set to be sentenced for both
14-CR-66 (RHK/JSM) and 14-CR-271 (RHK/JSM) at one hearing.
14, 2015, Defendant appeared for sentencing. Doc. No. 220. As
to the matter at issue - namely 14-CR-66 - the Court adopted
the findings in the PSR. Sentencing Transcript
(“ST”) at 5. Those findings included both
statutory and Guidelines conclusions for Count 1 and Count 3.
Statutorily, and as detailed in the Agreement and anticipated
at the plea hearing, Defendant was subject to a mandatory
minimum 10-year term of imprisonment for Count 1, and a
consecutive 5-year term of imprisonment for Count 3. PSR,
¶¶ 81-82. The advisory Guidelines proposed a range
of 121 to 151 for Count 1, and a consecutive 5-year term of
imprisonment for Count 3 - resulting in a recommended range
of 181 to 211 months imprisonment. PSR, ¶ 83.
Court heard argument from the parties regarding both the
instant matter and 14-CR-271 (RHK/JSM). ST at 4-11. As to
this case, the Government argued for a combined 195-month
disposition. ST at 6. Defendant, through his counsel, asked
for minimum terms, and his counsel acknowledged those terms
were “statutorily mandated” and that a
consecutive term for Count 3 was “required by
924(c)[.]” ST at 7.
accordance with the statutory mandate, this Court sentenced
Defendant to a 180-month term of imprisonment. ST at 12,
18-19. The Court made clear that it was imposing the
requisite 10-year statutory term for Count 1, and the
requisite 5-year consecutive statutory term for Count 3. ST
at 19. The Court then apprised Defendant of his rights to
appeal his sentence, and Defendant acknowledged those rights.
Id. at 15.
Court then turned to Defendant's sentencing for the drug
offense conduct he committed while he was pending sentencing
- specifically additional cocaine distribution. Id.
at 19. Defendant stated “my life was just totally
unmanageable and I don't make no excuses.”
Id. at 19. Then the Court imposed an additional and
consecutive sentence of 24 months imprisonment. Id.
at 19-20. Afterward, the Court once again addressed
Defendant's appeal rights, id. at 21, and
detailed by the Government in response to Defendant's
post-conviction May and June 2016 pleadings, at no time
during the above-described sentencing proceedings did
Defendant question his sentence or how the Court came to that
sentence, nor does he ask to speak with his counsel regarding
his circumstances before, during, or after sentence
imposition. There was no challenge to the consecutive 5-year
term imposed by the Court for his firearms conduct. Defendant
did not file an appeal.
DEFENDANT'S HABEAS CLAIMS
28 U.S.C. § 2255 pleadings assert three separate claims.
First he indicates in his May 18, 2016 filing that: 1) his
consecutive sentence pursuant to 18 U.S.C. § 924(c)(1)
was unlawful, citing the Supreme Court's 1995 decision in
Bailey v. United States, 516 U.S. 137 (1995); 2) he
was provided ineffective assistance of counsel because he was
improperly counseled during the course of receiving the
unlawful § 924(c) consecutive sentence, see
Doc. No. 248; and 3) he argues in his formal habeas pleading
that his § 924(c) sentence - consecutive or otherwise -
was improper because of the Johnson decision and its
treatment of the ACCA's residual clause. See
Doc. No. 256. On August 22, 2016, the Government responded to
each of these claims. Doc. No. 260. On August 26, 2016,
Defendant filed another pro se memorandum in support
of his 2255 claims. Doc. No. 261. On September 16, 2016,