Green v. U.S.

• Decision Date: 20 September 1995
• Docket Number: No. 93-4109,93-4109
• Parties: Carl GREEN, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 546

65 F.3d 546

Carl GREEN, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 93-4109.

United States Court of Appeals, Sixth Circuit.

Argued March 13, 1995.

Decided Sept. 20, 1995.

Carl Green (briefed), Milan, MI, David J. Betras (argued and briefed), Betras & Dann, Youngstown, OH, for petitioner-appellant.

Blas E. Serrano, Asst. U.S. Attorney (argued and briefed), Office of the U.S. Attorney, Cleveland, OH, for respondent-appellee.

Before: NELSON and SUHRHEINRICH, Circuit Judges; SMITH, District Judge. ^*

DAVID A. NELSON, Circuit Judge.

Carl Green, who is serving prison sentences for a variety of federal crimes, moved under 28 U.S.C. Sec. 2255 for vacation or correction of one of his sentences. Rejecting a contention that Mr. Green had been prejudiced in the sentencing proceedings by ineffective assistance of counsel, a magistrate judge recommended that the Sec. 2255 motion be denied without an evidentiary hearing. The district court accepted the recommendation, and this appeal followed.

We conclude that although the sentencing court erred in calculating Mr. Green's guideline range, the performance of Mr. Green's counsel was clearly not deficient in a constitutional sense. Moreover, because Mr. Green is currently serving a much longer concurrent sentence--not subject to attack here--for other crimes, it does not appear that he would have suffered any prejudice even if his lawyer's performance had been deficient. We shall affirm the denial of the Sec. 2255 motion.

I

Mr. Green was tried before a jury on cocaine charges and a charge of being a convicted felon in possession of a firearm. The jury found him guilty. In a separate case Mr. Green subsequently pleaded guilty to the charge underlying the present proceeding, a charge that he violated of 31 U.S.C. Sec. 5324 by structuring a transaction with a financial institution to avoid statutory reporting requirements. Sentencing hearings in the two cases were combined.

In the cocaine case the court imposed several concurrent sentences, the longest of which was 420 months. In the financial structuring case the court imposed a sentence of 57 months, to be served concurrently with the cocaine case sentences.

Direct appeals were taken in both cases, and the appeals were consolidated. Mr. Green's counsel did not raise any sentencing issues in the appeal of the financial structuring case, and the conviction and sentence were affirmed in an unpublished decision. United States v. Green, Nos. 90-3468/3469, 1991 WL 175283 (6th Cir. Sept. 10, 1991).

Mr. Green thereafter filed Sec. 2255 motions in both the cocaine case and the financial structuring case. Both motions were denied. The denial of the motion in the cocaine case was affirmed last year in an order entered under Rule 9(a) of the rules of this court. Green v. United States, No. 93-4108, 1994 WL 144435 (6th Cir. April 21, 1994) (unpublished order). In the instant appeal this court sua sponte appointed appellate counsel for Mr. Green, who had been proceeding pro se, and the matter has now been fully briefed and argued.

II

Where a Sec. 2255 motion and the files and records of the case conclusively show that the moving party is entitled to no relief, the court is not required to serve notice of the motion on the United States attorney, and no hearing of any kind is required. 28 U.S.C. Sec. 2255. A fortiori, of course, no evidentiary hearing is required under such circumstances. See Bryan v. United States, 721 F.2d 572, 577 (6th Cir.1983), cert. denied, 465 U.S. 1038, 104 S.Ct. 1315, 79 L.Ed.2d 711 (1984). And where, as in the case at bar, an answer to the motion has been filed, it is up to the district judge to determine whether an evidentiary hearing is required. Rule 8(a), Rules Governing Section 2255 Proceedings in the United States District Courts.

Here the district judge determined, after full consideration of Mr. Green's arguments, that an evidentiary hearing was not required. It does not seem to us that the judge abused his discretion or otherwise erred in this determination.

Although Mr. Green does not question the validity of his conviction, he points to several alleged sentencing errors and contends that his former counsel was "ineffective," in a constitutional sense, in allowing these errors to go unchallenged. A magistrate judge concluded as a matter of law that the claims of sentencing error had no merit, from which it would follow that the performance of Mr. Green's former counsel was not deficient. The district judge agreed. We shall consider each of the alleged sentencing errors in turn.

A

Mr. Green first contends that the district court calculated his criminal history incorrectly, under the Sentencing Guidelines, as a result of having counted two prior convictions separately. He says that the prior cases were really "related," so that the sentences imposed therein should have been treated as one sentence under U.S.S.G. Sec. 4A1.2(a)(2).

The cases in question involved a 1984 state court conviction for felonious assault and a 1984 federal court conviction for a subsequent drug offense. Mr. Green apparently got in touch with a drug dealer following the assault and, according to Green's brief, "solicited a half ounce of cocaine ... in lieu of payment of [the assault victim's] medical bills." He now argues that the two crimes "were part of a single common scheme or plan" within the meaning of Application Note 3 in the Commentary on U.S.S.G. Sec. 4A1.2. In this connection he points to the fact that the crimes were treated as "related" for parole purposes. He also argues that the two cases were "implicitly consolidated for sentencing," which would also bring them within the Application Note. The latter argument is based on the fact that the sentence imposed by the state court in the assault case was to be served concurrently with the federal sentence in the drug case.

Neither argument is persuasive. As to the alleged consolidation, cases are not "consolidated" for sentencing when they proceed to sentencing under separate docket numbers, do not arise from the same nucleus of facts, lack an order of consolidation, and result in different sentences. This is true even when the defendant pleads guilty to the offenses in the same court, at the same time, before the same judge. United States v. McAdams, 25 F.3d 370, 374-75 (6th Cir.1994). The notion that Mr. Green's state court assault case was somehow consolidated for sentencing with his federal court drug case is utterly fanciful.

As to the "single common scheme or plan" argument, the notion that Mr. Green assaulted his victim with the thought that he would then go out and solicit cocaine for him in lieu of paying his hospital bills strikes us as equally fanciful. The second crime may have been an outgrowth of the first, but there was obviously no single common scheme or plan--and it would have been an unwarranted use of judicial resources for the district court to conduct an evidentiary hearing on such a question outside the normal sentencing process. The fact that the crimes may have been deemed related for parole purposes has no bearing, of course, on the question of whether the sentencing guidelines were misapplied.

B

The next contention--one not made in this form before the district court--is that Mr. Green should not have been sentenced as a "career offender" under U.S.S.G. Sec. 4B1.1 because, among other things, the financial structuring crime for which he was being sentenced was neither a crime of violence nor a controlled substance offense. The problem with this contention is that Mr. Green was not in fact sentenced as a career offender in the financial structuring case. He was sentenced as a career offender in the cocaine case, where the crimes for which he was being sentenced were indeed controlled substance offenses.

The sentence imposed in the cocaine case was affirmed by this court in 1991, and the rejection of Mr. Green's collateral attack on that sentence was affirmed by this court in 1994. We could not revisit the sentence in the cocaine case here even if there were some apparent defect in that sentence, which there is not.

C

Mr. Green contends that the sentencing court erred in finding that he was "an organizer, leader, manager, or supervisor" in the financial structuring offense, a finding that resulted in his offense level being increased by two levels under U.S.S.G. Sec. 3B1.1(c). Such an increase was recommended in p 17 of the presentence investigation report prepared for the court by a probation officer.

Citing United States v. Cohen, 946 F.2d 430 (6th Cir.1991), for the proposition that at least one other culpable person must have participated if the defendant is to be treated as an organizer/leader, Mr. Green maintains that Sec. 3B1.1(c) should not have been applied to him because he committed the financial structuring crime alone. As the government pointed out when Mr. Green's former counsel made the same argument at the sentencing hearing, however, ¹ Mr. Green did not act alone. His wife was involved in the offense, and so were other members of his family. This proposition was substantiated, at least as to Mrs. Green, by the testimony of a special agent of the Internal Revenue Service who participated in the investigation of criminal activities by Mr. and Mrs. Green.

The sentencing court addressed the objection to p 17 of the presentence report in conjunction with objections that had been raised with respect to the two preceding paragraphs of the report. The judge announced he would sustain the probation officer's findings in relation to all three paragraphs. In thus adopting the probation officer's findings, the court found that Mrs. Green and other family members were involved in the offense at Mr. Green's request and upon his instructions. It is most unlikely that this court, applying a "clearly erroneous" standard, would have overturned the district court's resolution of this...