Smith v. US

• Decision Date: 07 December 1994
• Docket Number: Civ. A. No. 93-00492-A.
• Citation: 871 F. Supp. 251
• Court: U.S. District Court — Eastern District of Virginia
• Parties: Nathaniel SMITH, Petitioner, v. UNITED STATES of America, Respondent.

871 F. Supp. 251

Nathaniel SMITH, Petitioner, v. UNITED STATES of America, Respondent.

Civ. A. No. 93-00492-A.

United States District Court, E.D. Virginia, Alexandria Division.

December 7, 1994.

Nathaniel Smith, pro se.

Helen Fahey, U.S. Atty., Thomas W. Dworschak, Asst. U.S. Atty., Alexandria, VA, for respondent.

MEMORANDUM OPINION

ELLIS, District Judge.

This is an anomalous case. It grows out of an error made in Sentencing Guidelines criminal history calculations that went undetected at the time of petitioner's sentencing. Also undetected at sentencing was a second criminal history issue that, had the government raised it, would have essentially canceled the error missed by petitioner's counsel. Yet petitioner, citing his counsel's constitutionally ineffective assistance, now seeks § 2255 relief¹ through resentencing. Because the Sentencing Guidelines have changed since petitioner's sentencing, and because the Guidelines in effect at the time of the resentencing govern, petitioner now faces significantly lower sentencing ranges if resentenced. Thus, the anomaly presented is that the mere passage of time has made petitioner the windfall beneficiary of non-retroactive Guidelines changes from which he would not have benefitted had his counsel not overlooked the erroneous criminal history calculation at sentencing or, alternatively, had the error been timely detected and remedied. However odd the result, petitioner has demonstrated proper grounds for § 2255 relief, and is therefore entitled to resentencing.

I.

On October 16, 1990, a federal grand jury indicted petitioner, Sharon S. Carnegie, and Gary Barbee for their involvement in a drug trafficking conspiracy operating in northern Virginia. While the conspiracy began in late Summer 1987, petitioner did not participate until July 1989, at which time he began to work as a "runner" for Carnegie. Petitioner was charged under six of the indictment's sixteen counts. On March 18, 1991, in return for dismissal of five counts, petitioner pled guilty to conspiracy to distribute cocaine and crack cocaine in violation of 21 U.S.C. § 841(a)(1). Petitioner also signed a statement of facts admitting that he and his coconspirators distributed approximately thirteen kilograms of crack cocaine during the period of his involvement in the conspiracy. At sentencing on May 24, 1991, petitioner, by counsel, informed the Court² that petitioner had no objection to the contents of the Pre-Sentence Report (PSR). He also requested a downward departure pursuant to U.S.S.G. § 5K2.0, based on his efforts to treat his drug addiction, which the Court denied. The Court sentenced petitioner to 292 months incarceration, the bottom of the applicable Sentencing Guidelines range of 292 to 365 months. On May 22, 1992, the Court denied the motion of petitioner's counsel, pursuant to Rule 35, Fed.R.Crim.P., for a reduction in sentence based upon the government's failure to make a substantial assistance motion.

Petitioner appealed his sentence on the grounds that (i) the government breached his plea agreement by failing to investigate information he provided and consequently refusing to file a Rule 35 motion, and (ii) petitioner's sentence was unconstitutionally disparate from that of a co-defendant. The court of appeals ruled against petitioner on each issue, and affirmed the conviction and sentence. United States v. Smith, 981 F.2d 1252 (4th Cir.1992) (unpublished).

Petitioner presents two principal § 2255 claims, namely that, under the Sentencing Guidelines then in effect, (i) he was sentenced at an improper base offense level, and (ii) he was sentenced in an improper criminal history category. Petitioner presents other claims that are derived from these alleged errors. Specifically, he contends that his counsel was constitutionally ineffective for not objecting to these errors, and that his guilty plea was involuntary because he expected to be sentenced correctly. While petitioner's sentence was based on an appropriate base offense level, his criminal history score was improperly determined, and petitioner is therefore entitled to relief.

II.

First, petitioner claims that his sentence was computed with an improper base offense level. The level used, 40,³ was appropriate under the Sentencing Guidelines then in effect, for an offense involving five to fifteen kilograms of crack cocaine. See U.S.S.G. § 2D1.1. As petitioner accurately asserts, there is no evidence that he personally handled crack cocaine in an amount approaching five kilograms. Nonetheless, at sentencing, petitioner was held accountable for the full quantity of drugs, thirteen kilograms, that were trafficked by the conspiracy during the period from July 1989 to August 1990, the period during which he was active in the conspiracy.

Petitioner correctly asserts that he cannot properly be held responsible for all of the conspiracy's drug trafficking activities, but only for those activities within the scope of his agreement to participate, in other words, those which were "reasonably foreseeable" to him. U.S.S.G. § 1B1.3(a)(1); United States v. Willard, 909 F.2d 780, 781 (4th Cir. 1990); United States v. Vinson, 886 F.2d 740 (4th Cir.1989), cert. denied, 493 U.S. 1062, 110 S.Ct. 878, 107 L.Ed.2d 961 (1990); cf. United States v. O'Campo, 973 F.2d 1015, 1025 (1st Cir.1992) (requiring more crystallized knowledge when defendant's sentence is based in part on drug transactions prior to his entry into conspiracy). Measured against this standard, petitioner's contention fails, for the record amply supports the conclusion that petitioner reasonably should have foreseen that the conspiracy trafficked in well over five kilograms of crack cocaine during the period of his participation. Thus, petitioner knew that the conspiracy was active and extensive. In a signed statement dated May 29, 1991, he identified ten other drug dealers, eight of whom he described as working for his co-conspirator, Sharon Carnegie. In a debriefing with federal agents on February 25, 1992, petitioner provided enough information on names, dates, and amounts of drugs distributed by his co-conspirators to fill six pages of agents' notes. In addition, in connection with his plea agreement, petitioner signed a statement of facts indicating that the conspiracy distributed approximately thirteen kilograms during the period of his involvement.⁴ This admission, together with petitioner's admitted involvement in the undeniably extensive conspiracy, leaves no question that petitioner should reasonably have foreseen that the conspiracy was responsible for the distribution of at least five kilograms of crack cocaine.⁵

Petitioner emphasizes the fact that he had only a limited and subordinate role in the drug operation, acting only as a courier at Carnegie's direction. He alleges he had no specific knowledge of particular drug transactions conducted by others in the conspiracy, and that he did not know the frequency of such transactions or the quantities involved. This does not effectively refute the conclusion that the transactions were foreseeable to him. To say that petitioner, who repeatedly and knowingly participated in the distribution of crack cocaine through the conspiracy, could have foreseen drug transactions in which he was not personally involved, is not, as petitioner asserts, "akin to holding the Pope accountable for the overpopulation in the world."⁶ Contrary to his assertions, petitioner was sentenced with a proper base offense level.

III.

Second, petitioner claims that he was assigned an improper criminal history level, category III. In the PSR, petitioner received a total of four criminal history points, one for each of four convictions, namely (i) defrauding an innkeeper, (ii) driving while intoxicated, (iii) making a false report to a police officer, and (iv) breaking and entering and resisting arrest. He contends that the first three were misdemeanor convictions that should have been excluded pursuant to U.S.S.G. § 4A1.2(c). The Sentencing Guidelines provide that sentences for misdemeanor offenses are not counted if (i) the sentence was a term of probation less than one year or imprisonment less than thirty days, (ii) the misdemeanor offense was not similar to the instant offense, and (iii) the misdemeanor offense is among those listed in U.S.S.G. § 4A1.2(c)(1). In fact, the list in § 4A1.2(c)(1) includes "False information to a police officer," but not petitioner's other misdemeanor offenses, defrauding an innkeeper and driving while intoxicated. Thus, as the government concedes, petitioner did receive one unwarranted criminal history point. But for this error, petitioner would have been in criminal history category II, rather than III, resulting in a sentencing range, given the guidelines then in effect, of 262 to 327 months, rather than the range of 292 to 365 months that was actually used.

Petitioner did not raise this objection at his sentencing hearing or in his direct appeal. Such a failure ordinarily constitutes a procedural default barring collateral review by § 2255 motion, unless "cause and prejudice" are shown. See United States v. Frady, 456 U.S. 152, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982); United States v. Maybeck, 23 F.3d 888 (4th Cir.1994). As to the first of these requirements, petitioner has shown ample cause for not raising this claim earlier, namely that he received constitutionally ineffective assistance of counsel. Where a defendant receives ineffective assistance, it is well settled that the claim is properly raised by § 2255 motion rather than on direct appeal.⁷

In order to establish that his counsel's error violated his Sixth Amendment right to effective counsel, petitioner must show that (i) his attorney's performance was, under all circumstances, unreasonable under prevailing professional norms, and (ii) there is a reasonable possibility that, but for counsel's errors, a different result would have obtained. Strickland...