Massey v. United States
| Decision Date | 19 February 2020 |
| Docket Number | CASE NO. 3:18-CV-1973-D-BK,CRIMINAL NO. 3:13-CR-0322-D |
| Parties | BRENTON THOMAS MASSEY, MOVANT, v. UNITED STATES OF AMERICA, RESPONDENT. |
| Court | U.S. District Court — Northern District of Texas |
Pursuant to 28 U.S.C. § 636(b) and Special Order 3, Movant Brenton Thomas Massey's pro se motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255 was referred to the undersigned United States magistrate judge for case management, including the issuance of findings and a recommended disposition where appropriate. As detailed herein, the motion should be DENIED.
Massey pled guilty to possessing a firearm after conviction of a felony offense and was sentenced under the Armed Career Criminal Act to 188 months' imprisonment and a five-year term of supervised release. Crim. Doc. 42. Relying on Section 5G1.3(d) of the Sentencing Guidelines, the Court ordered the sentence to be served concurrently with a 14-year prison term imposed by the United States District Court for the Eastern District of Texas in a related case—No. 4:13-CR-102-7. Crim. Doc. 42 at 2. Subsequently, the United States Court of Appeals for the Fifth Circuit affirmed the sentence. United States v. Massey, 858 F.3d 380 (5th Cir. 2017).
In Massey's timely Section 2255 motion, he argues that: (1) the trial court abused its discretion in its application of U.S.S.G. § 5G1.3 by not properly giving him credit for his time served; and (2) his trial and appellate counsel were ineffective for not putting the Court on notice of the improper sentencing calculation. Doc. 2-1 at 1. Id. The Government has filed a response in opposition, Doc. 9, and Massey has filed a reply, Doc. 11. After reviewing the record, the Court concludes that Massey's ineffective assistance claims fail on the merits and that his substantive sentencing claims are not cognizable and procedurally barred.
After conviction and exhaustion or waiver of the right to direct appeal, the Court presumes that a movant stands fairly and finally convicted. See United States v. Cervantes, 132 F.3d 1106, 1109 (5th Cir. 1998) (citing United States v. Shaid, 937 F.2d 228, 231-32 (5th Cir. 1991) (en banc)). "Relief under 28 U.S.C. § 2255 is reserved for transgressions of constitutional rights and for a narrow range of injuries that could not have been raised on direct appeal and would, if condoned, result in a complete miscarriage of justice." United States v. Vaughn, 955 F.2d 367, 368 (5th Cir. 1992). Moreover, to obtain post-conviction relief on a claim that defense counsel was constitutionally ineffective, the movant must prove that counsel's performance was deficient and that counsel's substandard performance resulted in prejudice. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). Failure to establish either deficient performance or prejudice defeats the claim. Id. at 697.
Massey asserts that counsel rendered ineffective assistance by failing to inform the Court that: (1) the provisions of U.S.S.G. § 5G1.3(b), and not U.S.S.G. § 5G1.3(d), applied in his case; and (2) he was due additional credit for the time that he had already served on his Eastern District of Texas sentence. Doc. 2-1 at 1. Massey contends that due to counsel's failure and the Court's erroneous reliance on U.S.S.G. 5G1.3(d), he will not receive all of the credit for timeserved for which he is eligible, to-wit: "approximately 13 months" when he was incarcerated awaiting sentencing in his Northern District of Texas case. Doc. 2-1 at 4.
The Government acknowledges that the Bureau of Prison's (BOP's) back-time credit calculation resulted in an "overlap period," since Massey's federal sentences were imposed at different times and, under 18 U.S.C. § 3584(c), multiple terms of imprisonment are "treated for administrative purposes as a single, aggregate term of imprisonment." Doc. 9 at 14 n.3. The Government further concedes that as a result of the "overlap period," Massey's aggregate imprisonment term is 16 years, nine months, and 21 days, rather than the 15 years, six months term imposed. Doc. 9 at 14 n.3.
Although the Presentence Report (PSR) does not refer to U.S.S.G. § 5G1.3 or address a concurrent versus consecutive sentence, the Court agreed with defense counsel's request to order that the sentence imposed in this district be served concurrently with the 14-year sentence imposed in the Eastern District of Texas, and to award back-time credit from the date of Massey's arrest. Crim. Doc. 59 at 8, 20 (Sentencing Tr.). The Court explained:
District courts "have long been understood to have discretion to select whether the sentences they impose will run concurrently or consecutively with respect to other sentences that they impose, or that have been imposed in other proceedings...." Setser v. United States, 566 U.S. 231, 236 (2012); see also 18 U.S.C. § 3584(a) (). In exercising their discretion, courts are required to consider the factors set forth in 18 U.S.C. § 3553(a). See 18 U.S.C. § 3584(b). Courts can also consult the Sentencing Guidelines. See U.S.S.G. § 5G1.3. This case turns on the application of subsections (b) and (d) of U.S.S.G. § 5G1.3.1 However, the Court notes that neither section impacts the calculation of the advisory guideline range, which was correct in this case.
Subection (b) provides that if the defendant is serving an undischarged term of imprisonment for an offense that "is relevant conduct to the instant offense of conviction," the sentence for the instant offense shall be "adjust[ed] ... for any period of imprisonment already served on the undischarged term of imprisonment if the court determines that such period of imprisonment will not be credited to the federal sentence by the Bureau of Prisons[.]" U.S.S.G. § 5G1.3(b). Subsection (d) provides that, "[i]n any other case involving an undischarged term of imprisonment, the sentence for the instant offense may be imposed to run concurrently, partially concurrently, or consecutively to the prior undischarged term of imprisonment to achieve a reasonable punishment for the instant offense." U.S.S.G. § 5G1.3(d).
In the instant case, after weighing the statutory sentencing factors, the Court imposed a sentence at the low end of the 188- to 235-month guideline range. The Court also exercised itswide discretion to apply U.S.S.G § 5G1.3(d) and order that Massey's sentence be served concurrently with his Eastern District sentence. Although the Court added that subsection (d) "will indicate to the [BOP] that the sentence is fully concurrent," it did not otherwise specify an additional adjustment or variance to account for jail time served on the Eastern District sentence that ultimately would not be credited to Massey's federal sentence by the Bureau of Prisons. Crim. Doc. 59 at 20.
Massey correctly asserts that U.S.S.G. § 5G1.3(b) applied in his case because the Eastern District offense was relevant conduct to the gun possession offense in this case. See Crim. Doc. 27-1 at 7, PSR ¶ 25 (). But even assuming counsel was deficient in failing to specifically request a concurrent sentence under U.S.S.G. § 5G1.3(b) to obtain all credit for time served, Massey cannot show that he was prejudiced—to-wit, that his sentence was increased by the deficient performance of defense counsel. See Glover v. United States, 531 U.S. 198, 200, 203-04 (2001).
First, the application of U.S.S.G. § 5G1.3(b) is not mandatory, even when the guideline applies. See United States v. Rangel, 319 F.3d 710, 713 (5th Cir. 2003) ; United States v. Dooley, 556 F. App'x 312, 312-13 (5th Cir. 2014) (per curiam) (). Second, there is nothing in the record to indicate that Massey's sentence would have been lower even if the Court had expressly or implicitly addressed U.S.S.G. § 5G1.3(b) at sentencing or provided a clearerexplanation of intent. See United States v. Estrada, 312 F. App'x 664, 667 (5th Cir. 2009) (). At sentencing, the Court rejected Massey's objections and found him to be an Armed Career Criminal. Crim. Doc. 59 at 4. This was significant because it placed him at the higher advisory guidelines range of 188-235. Crim. Doc. 27-1 at 18, PSR ¶ 90. That notwithstanding, after weighing all sentencing factors, the Court concluded that a sentence at the very bottom of the guidelines range was sufficient. Crim. Doc. 59 at 19-20. The Court also ordered that the sentence be served concurrently with the Eastern District sentence specifically relying on...
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