Konvalinka v. United States
| Decision Date | 16 April 2014 |
| Docket Number | No. C11-3014-MWB,No. CR09-3041-MWB,C11-3014-MWB,CR09-3041-MWB |
| Parties | JASON LEE KONVALINKA, Petitioner, v. UNITED STATES OF AMERICA, Respondent. |
| Court | U.S. District Court — Northern District of Iowa |
This case is before me on petitioner Jason Lee Konvalinka's Amended Motion Under 28 U.S.C. § 2255 To Vacate, Set Aside, Or Correct Sentence By A Person In Federal Custody. Konvalinka asserts that his counsel provided him with ineffective assistance in failing to object to the calculation of his base offense level in his presentence report ("PSR"). Konvalinka argues that he was not subject to the base offense level of 20, pursuant to U.S.S.G. § 2K2.1(a)(4)(A), because his conviction for third degree burglary of an unoccupied vehicle is not a qualifying crime of violence. The respondent denies that Konvalinka is entitled to relief on his claim.
On November 19, 2009, Konvalinka was charged by a one-count Superseding Indictment with being a felon in possession of firearms and ammunition, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Konvalinka subsequently executed a written plea agreement with the prosecution. In his plea agreement, Konvalinka made certain factual and legal stipulations. Specifically, in pertinent part, the parties stipulated that the following United States Sentencing Guidelines should be applied:
Firearm Offense Level (Chapter 2): For Count 1, pursuant to U.S.S.G. § 2K2.1(a)(4)(A), the base offense level is at least 20 because the offense was committed subsequent to defendant's conviction from a crime of violence (burglary in 3rd degree).
On March 29, 2010, Konvalinka entered a plea of guilty to the charged offense pursuant to the terms of his plea agreement. A probation officer then prepared a PSR.The PSR also indicated that Konvalinka's base offense level was 20, because he had a prior conviction for a crime of violence. PSR at ¶ 22. The probation officer increased Konvalinka's offense level four levels, pursuant to U.S.S.G. § 2K2.1(b)(1)(B), because the charged offense involved between 8 and 24 firearms. PSR at ¶ 23. The probation officer also increased Konvalinka's offense level two levels, pursuant to U.S.S.G. § 2K2.1(b)(4), because the charged offense involved a stolen firearm. PSR at ¶ 24. Konvalinka's offense level was further increased by four points, pursuant to U.S.S.G. § 2K2.1(b)(6), because he used or possessed a firearm or ammunition in connection with another felony offense. PSR at ¶ 25. The PSR also indicated that Konvalinka's offense level should be lowered by three levels, pursuant to U.S.S.G. §§ 3E1.1(a)-(b), for Konvalinka's acceptance of responsibility. PSR at ¶¶ 30-31. Thus, the PSR indicated that Konvalinka's total offense level was 27.
The PSR also indicated that Konvalinka had 21 criminal history points for his convictions for burglary in the third degree (1999), eluding/operating a vehicle while intoxicated (2004), driving while barred-habitual offender (2005), driving while barred-habitual offender (2005), theft in the second degree (2006), theft in the third degree (2007), burglary in the third degree (2007), possession of methamphetamine (2007), and driving while barred (2009).1 PSR at ¶¶ 35-46. With respect to Konvalinka's burglary in the third degree conviction, the PSR states that: "Trial Information reflects on December 8, 1999, the defendant entered a vehicle without right, license or privilege to do so, with the intent to commit theft." PSR at ¶ 36. The probation officer also added two criminal history points, pursuant to U.S.S.G. § 4A1.1(d), because Konvalinkacommitted the charged offense while he was on probation. PSR at ¶ 48. The probation officer also added one criminal history point, pursuant to U.S.S.G. § 4A1.1(e), because Konvalinka committed the charged offense less than two years since his release from custody.2 PSR at ¶ 49. Thus, the PSR indicated that Konvalinka had a total of 24 criminal history points, which placed Konvalinka in criminal history category VI. PSR at ¶ 50.
Konvalinka appeared before me on July 30, 2010, for sentencing. I found that Konvalinka's base offense level was 20, because he had a prior conviction for a crime of violence. Neither Konvalinka nor his counsel objected to my base offense level determination. Following the probation officer's recommendation, I increased Konvalinka's offense level four levels, pursuant to U.S.S.G. § 2K2.1(b)(1)(B), because the charged offense involved between 8 and 24 firearms. PSR at ¶ 23. I also followed probation's recommendation to increase Konvalinka's offense level two levels, pursuant to U.S.S.G. § 2K2.1(b)(4), because the charged offense involved a stolen firearm. PSR at ¶ 24. I further followed probation's recommendation to increase Konvalinka's offense level four points, pursuant to U.S.S.G. § 2K2.1(b)(6), because he used or possessed a firearm or ammunition in connection with another felony offense. PSR at ¶ 25. I lowered Konvalinka's offense level three levels, pursuant to U.S.S.G. §§ 3E1.1(a)-(b), for his acceptance of responsibility. PSR at ¶¶ 30-31. Thus, I concluded that Konvalinka's total offense level was 27.
Having found that Konvalinka's total offense level was 27 and he had a criminal history category of VI , I concluded that his advisory United States Sentencing Guideline range was 130 to 163 months. However, because the statutory maximum sentence was ten years imprisonment and Konvalinka received six months credit for time served on a related state conviction, I sentenced him to 114 months imprisonment, and three years of supervised release. Konvalinka did not appeal.
On April 15, 2011, Konvalinka filed a pro se Motion Under 28 U.S.C. § 2255 To Vacate, Set Aside, Or Correct Sentence By A Person In Federal Custody. In his motion, Konvalinka contended that his base offense level of 20, under U.S.S.G. § 2K2.1(a)(4)(A), for his violation of 18 U.S.C. §§ 922(g) and 924(a)(2), was incorrectly calculated based on his prior conviction for burglary of a car, which was not a requisite crime of violence. After respondent filed its answer, I set a briefing schedule and counsel was appointed to represent Konvalinka on the § 2255 motion. Konvalinka then sought, and was granted, three extensions of time in which to file his brief in support of his § 2255 motion. After Konvalinka filed his brief, respondent moved to dismiss Konvalinka's § 2255 motion. Respondent asserted that because Konvalinka did not raise his claim on appeal, the issue was procedurally barred. Respondent also argued that Konvalinka's claim was one for non-constitutional error in application of the sentencing guidelines, which respondent contended could not be raised as grounds for a § 2255 motion. Konvalinka resisted respondent's motion and filed a motion to amend his § 2255 motion, requesting that he be permitted to file an amended § 2255 motion which would clarify that his claim was one for ineffective assistance of counsel. I granted Konvalinka's motion to amend and he filed an amended § 2255 motion. I then denied respondent's motion to dismiss as being moot and set a new briefing schedule. Konvalinka filed an amended brief in supportof his amended § 2255. After obtaining an extension of time, respondent filed a timely response to Konvalinka's § 2255 amended motion. After Konvalinka filed his reply brief, respondent sought and was granted an extension of time to file a surreply brief. Respondent filed a timely surreply brief.
Section 2255 of Title 28 of the United States Code provides as follows:
A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground [1] that the sentence was imposed in violation of the Constitution or laws of the United States, or [2] that the...
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