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United States v. Sok

United States District Court, D. Minnesota

March 27, 2017

PHOUMARA TODD SOK, Defendant. Civil No. 16-2075 (RHK)


          RICHARD H. KYLE United States District Judge

         This 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.

         The 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 discussed below.


         On 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.

         Defendant 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.

         Government 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).

         While 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).

         As he 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.

         On May 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.

         The 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.

         In 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.

         The 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 proceedings concluded.

         As 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 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, Defendant ...

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