Anderson v. U.S., No. 96-C-1070-S.

CourtUnited States District Courts. 10th Circuit. United States District Court of Utah
Writing for the CourtSam
Citation44 F.Supp.2d 1230
Docket NumberNo. 96-C-1070-S.
Decision Date02 April 1999
PartiesRonald G. ANDERSON, Petitioner/Defendant, v. UNITED STATES of America, Respondent/Plaintiff.

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44 F.Supp.2d 1230
Ronald G. ANDERSON, Petitioner/Defendant,
v.
UNITED STATES of America, Respondent/Plaintiff.
No. 96-C-1070-S.
United States District Court, D.Utah, Central Division.
April 2, 1999.

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COPYRIGHT MATERIAL OMITTED

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Bruce C. Lubeck, Asst.U.S.Atty., Salt Lake City, Utah, for plaintiff.

Michael W. Jaenish, Salt Lake City, Utah, for defendant.

ORDER

SAM, Chief Judge.


Before the court is a document entitled "Petitioner's Reply to the Report and Recommendation of Magistrate Alba" filed by petitioner Ronald G. Anderson. The court has reviewed Anderson's objections to the Report and Recommendation, signed by the magistrate judge on February 18, 1999, despite their untimeliness. After considering the matter de novo, the court concludes the Report and Recommendation is correct in every material respect and hereby adopts it as the court's own opinion. Accordingly, defendant's petition pursuant to 28 U.S.C. § 2255 is dismissed.

REPORT & RECOMMENDATION

ALBA, United States Magistrate Judge.

Petitioner Ronald G. Anderson, confined at the Federal Correctional Institute at Florence Colorado, filed a petition to set aside or correct his sentence pursuant to 28 U.S.C. § 2255 on December 23, 1996.1 The case was assigned to United States District Judge David Sam, who subsequently referred it to the magistrate judge under 28 U.S.C. § 636(b)(1)(B). (File Entry # 3).

BACKGROUND

On January 3, 1991, petitioner was charged with selling, or aiding and abetting in the sale of, cocaine base and cocaine to an undercover police officer. (File Entry # 6, Attachment A; Document # 1, Criminal File 91-CR-28, Indictment). The total amount of cocaine base involved in counts 1-4 and Count 7 was 91 grams. (Id.). In the final transaction, as charged in Counts 7 and 8, petitioner showed the officer a gun just before petitioner demonstrated how to "cook" or manufacture the cocaine base from cocaine hydrochloride. Petitioner carried the gun in a pack just before he began the manufacture process, showed it to the officer, and then set it on a table about five feet away during the manufacture process. (File Entry # 6, Attachment C, Trial Transcript, November 16, 1992, pp. 75-79).

In November 1992, petitioner was convicted of seven counts of violating 21 U.S.C. § 841(a)(1), distribution or manufacture of a controlled substance, and one count of violating 18 U.S.C. § 924(c), carrying a firearm during and in relation to a drug trafficking crime. The first four counts of the indictment charged distribution of cocaine base and Count 7 charged manufacture of cocaine base. Counts 5 and 6 charged distribution of cocaine. On January 12, 1993, petitioner was sentenced to 210 months imprisonment on Counts 1-7, followed by a 60-month consecutive term of imprisonment on Count 8, and a term of eight years supervised release. United States v. Anderson, 19 F.3d 1443, 1994 WL 107856 (10th Cir.1994) (unpublished). (File Entry # 6, Attachment A, Indictment).

Petitioner directly appealed his sentence and conviction to the Court of Appeals for the Tenth Circuit. Petitioner challenged evidentiary errors at trial and errors in the calculation of his sentence. His conviction and sentence were affirmed. United States v. Anderson, 19 F.3d 1443, 1994 WL 107856 (10th Cir.1994).

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Petitioner filed the current motion to vacate or set aside his sentence pursuant to 28 U.S.C. § 2255 on December 23, 1996. (File Entry # 1). On January 9, 1997, the magistrate judge ordered the United States Attorney to respond to the motion. (File Entry # 5). The government filed its response on January 27, 1997. (File Entry # 6). Petitioner filed his reply to the response on February 14, 1997. (File Entry # 7).

On October 14, 1997, this court held a hearing during which the court excused Mr. Besendorfer as counsel for petitioner because of allegations of ineffective assistance of counsel made by petitioner in his reply.2 (File Entry # 14.) The court appointed new counsel for petitioner. On March 25, 1998, the court held an evidentiary hearing regarding the claims made by petitioner. (File Entry # 20).

DISCUSSION

I. Presentence Report.

Petitioner claims that the trial court failed to ask petitioner if he had read the presentence report and discussed it with his attorney. First, a petitioner who fails to present an issue on direct appeal is barred from raising the issue in a section 2255 motion, unless he can show cause for his procedural default and actual prejudice resulting from the alleged errors, or can show that a fundamental miscarriage of justice will occur if his claim is not addressed. United States v. Frady, 456 U.S. 152, 167-68, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982).

Petitioner claims that whether he should be "procedurally barred from raising this claim on collateral review should depend on whether he knowingly, voluntarily, and intelligently waived his right to read and to discuss the PSI with his attorney." This statement fails to show any reason why he did not bring an appeal on the issue he raises. Further, he has not shown any prejudice or a fundamental miscarriage of justice in this case. Accordingly, this claim is procedurally barred and need not be considered by this court.

Second, even if this claim were not procedurally barred, it must fail because petitioner has failed to show any prejudice resulting from the alleged failure by the trial court to inquire as to whether petitioner had read the report and discussed it with his attorney.3 Rule 32(c)(3)(A) of the Federal Rules of Criminal Procedure provides that the court must verify that the defendant and counsel have read the presentence report. If this is not done, the petitioner must show that he suffered some prejudice or the case will not be remanded for resentencing. United States v. Archer, 70 F.3d 1149, 1151 (10th Cir. 1995); United States v. Rangel-Arreola, 991 F.2d 1519, 1526 (10th Cir.1993).

Petitioner claims that he was harmed because he would have received a lesser sentence had he known about how the guidelines applied in his case. However, this vague statement, standing alone, does not show any prejudice. Petitioner offers no evidence showing that he would have received a lower sentence. Further, the Tenth Circuit considered the presentence report in relation to the sentencing guidelines in petitioner's appeal and determined that no error had occurred. Anderson, 19 F.3d 1443. Thus, petitioner's argument is without merit.

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II. Cocaine Base Calculation.

Petitioner next claims that his sentence was improper because he was sentenced for "crack" penalties when the indictment charged "cocaine base" and not "crack."

Petitioner claims that the indictment charged him with a general cocaine base (hydroxylion) rather than a crack cocaine base (sodium bicarbonate). He asserts that the only type of cocaine base that can receive the sentencing enhancement is crack cocaine base (sodium bicarbonate). Thus, petitioner claims that his sentence is illegal.

However, the guidelines in place when petitioner was sentenced in January 1993 do not limit crack as the only form of cocaine base to receive the enhanced sentence. It was not until November 1993 that the Sentencing Commission amended the Guidelines to include the following definition of cocaine base: " `Cocaine base,' for the purposes of this guideline, means `crack.' `Crack' is the street name for a form of cocaine base, usually prepared by processing cocaine hydrochloride and sodium bicarbonate, and usually appearing in a lumpy, rocklike form." U.S.S.G. § 2D1.1.

The guidelines in effect when petitioner was sentenced on January 12, 1993, set forth base offense levels for varying amounts of "cocaine base." The guidelines did not stipulate that crack was the only form of cocaine base that would receive the enhanced sentence. United States v. Rodriguez, 980 F.2d 1375, 1378 (11th Cir.1992) (the term cocaine base is not limited to crack cocaine); United States v. Jackson, 968 F.2d 158, 161 (2nd Cir.) (forms of cocaine base not pure enough to be crack still fall within Guidelines for enhanced sentence), cert. denied, 506 U.S. 1024, 113 S.Ct. 664, 121 L.Ed.2d 589 (1992). The Tenth Circuit addressed this issue after petitioner's sentencing but before the Sentencing Commission limited the enhanced sentence of "cocaine base" to crack. United States v. Angulo-Lopez, 7 F.3d 1506, 1511 (10th Cir.1993), cert. denied, 511 U.S. 1041, 114 S.Ct. 1563, 128 L.Ed.2d 209 (1994). In this case, the court found that a defendant could be sentenced under the enhanced sentencing provision for "cocaine base" even though he was found to have possessed a substance other than crack. Id.

In the present case, petitioner was charged with and found guilty of distribution of cocaine base. He was properly sentenced under the guidelines for distribution of cocaine base. The government only had to show that the substance in question was cocaine base. It was not required to prove it was crack in order for petitioner to receive the enhanced sentence. Thus, petitioner's argument fails.4

III. Use and Carry.

18 U.S.C. § 924(c)(1) imposes a five-year prison term on anyone who, "during and in relation to any crime of violence or drug trafficking crime ... uses or carries a firearm." If the court finds facts supporting either "use" or "carry" in relation to a drug trafficking crime under section 924(c)(1), petitioner's conviction must be sustained. Bailey v. United States, 516 U.S. 137, 138, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995); United States v. Parrish, 925 F.2d 1293, 1297 (10th Cir.1991).

A. "Uses" a Firearm.

In Bailey, the Supreme Court held that in order to convict a defendant for "use" of a firearm under 18 U.S.C. § 924(c), there must be active employment of the firearm by the defendant. Bailey, 516 U.S. at 142, 116 S.Ct. 501.5 Active employment includes

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brandishing or displaying a weapon. Id. at 148, 116 S.Ct. 501...

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