Sorensen v. United States

Decision Date22 September 2020
Docket Number4:19-CV-04190-KES
PartiesSHAWN RUSSELL SORENSEN, Movant, v. UNITED STATES OF AMERICA, Respondent.
CourtU.S. District Court — District of South Dakota

REPORT AND RECOMMENDATION

VERONICA L. DUFFY, United States Magistrate Judge.

This matter is before the court on Shawn Russell Sorensen's motion to vacate, correct, or set aside his sentence pursuant to 28 U.S.C. § 2255. See Docket No 1.[1] Respondent the United States of America (“government”), moves to dismiss Mr Sorensen's § 2255 petition without holding an evidentiary hearing. See Docket No. 26. Mr. Sorensen resists the motion. See Docket No. 35. Mr Sorensen's case was referred to this magistrate judge for a recommended disposition pursuant to 28 U.S.C. § 636(b)(1)(A) and (B) and pursuant to the October 16, 2014, standing order of the Honorable Karen E. Schreier, United States District Judge.

FACTS
A. Proceedings in the District Court

Mr. Sorensen was indicted by a federal grand jury in the District of South Dakota on May 10, 2016, and charged with conspiracy to distribute 500 grams or more of a mixture or substance containing methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 846. A superseding indictment was filed on September 20, 2016, which added a count to the indictment charging Mr. Sorensen with one count of possessing a firearm after having been convicted of a felony, in violation of 18 U.S.C. § 922(g)(1). See CR Docket No. 70. Gayle Hartz was named as Mr. Sorensen's co-conspirator in count 1 of both charging documents.

Attorney Clint Sargent was appointed to represent Mr. Sorensen at his initial appearance on May 23, 2016. See CR Docket No. 18. Thereafter, on June 2-3, 2016, Mr. Sargent withdrew because Mr. Sorensen retained private counsel, attorneys Rick Ramstad, Bruce Rivers, and Coley Grostyan. See CR Docket Nos. 36, 37, 39, 40, 41, and 89. The Supreme Court's opinion in Mathis v. United States, U.S., 136 S.Ct. 2243 (2016), discussed at length in the Discussion section of this opinion, was decided on June 23, 2016, shortly after Mr. Sorenson's replacement counsel made their initial notice of appearance.

On September 16, 2016, the government filed an information and notice pursuant to 21 U.S.C. § 851 of its intent to seek an increased punishment based on Mr. Sorensen's prior convictions for felony drug offenses pursuant to 21 U.S.C. § 841(b)(1)(A), as defined in 21 U.S.C. § 802(44). The government notified Mr. Sorensen that those convictions were: (1) a conviction that occurred on December 2, 2002, in the Second Judicial Circuit, Minnehaha County, South Dakota, for possession of a controlled substance; and (2) a conviction that occurred on March 10, 2008, in the Superior Court for Mojave County, Arizona, for transporting or selling a dangerous drug. See CR Docket No. 66. After Mr. Sorensen was convicted, but before sentencing, the government filed an amended information to correct/clarify that the Arizona conviction was for possession, rather than transportation or sale, of a dangerous drug. See CR Docket No. 143. At sentencing, the district court, the Honorable Karen E. Schreier, determined that the amended information permissibly and timely corrected “clerical mistakes” pursuant to 21 U.S.C. § 851(a)(1). See CR Docket No. 157, pp. 5-7 (sentencing transcript) (hereinafter “ST”).

Mr. Sorenson's co-defendant, Ms. Hartz, entered into a plea agreement before trial. See CR Docket No. 67. Mr. Sorensen proceeded to a jury trial on October 4, 5 and 6, 2016. See CR Docket No. 137 (hereinafter “TT”). At trial, twenty-two witnesses testified for the government including Ms. Hartz. See TT, pp. 254-90.

At trial, the evidence established the following:[2] On April 25, 2016, a United States Postal Inspector in Minneapolis applied for and received a search warrant for a package sent from a post office in Arizona, addressed to Gail Hartz, 404 S. Donaldson, Luvern [sic], Minn. 56156.” A certified drug dog alerted to the odor of narcotics. The return label on the package read, Dave Beckman, 13580 W. Port Royale, Suprise [sic], AZ, 85379.” Upon searching the package pursuant to the warrant, the postal inspector found clothing, toilet paper, paper towels, 192 grams of cocaine, and over four kilograms of methamphetamine wrapped in bundles of plastic and black electrical tape. The postal inspector contacted a counterpart in Sioux Falls, South Dakota, which is very near Luverne, Minnesota, and requested that he conduct a controlled delivery of the package, which the Sioux Falls inspector did.

Before the package was delivered to Ms. Hartz's home, an anticipatory search warrant was granted for her home and her person. After the controlled delivery to her home in Luverne, Minnesota, officers observed a vehicle drive away from Ms. Hartz's home. An officer stopped the vehicle and arrested the driver, who was Ms. Hartz. Meanwhile other officers executed the warrant to search Ms. Hartz's home, and located the unopened delivered package. Ms. Hartz informed the officers she had received the package on behalf of Shawn Sorensen. Ms. Hartz had communicated with Mr. Sorensen via text message prior to its delivery. Just after the package was delivered, Ms. Hartz texted Mr. Sorensen, stating, [i]ts here. So get ur butt here.” Mr. Sorensen replied, “I'm on my way.”

The Minnesota agents informed members of the Sioux Falls Area Drug Task Force (SFADTF) about Mr. Sorensen's involvement. SFADTF began conducting surveillance at Mr. Sorensen's residence in Sioux Falls. The SDADTF and Minnesota authorities cooperated to follow Mr. Sorensen from his home in Sioux Falls to Ms. Hartz's home in Luverne, Minnesota. Officers arrested Mr. Sorensen immediately upon his entrance into Ms. Hartz's home in Luverne.

After his arrest, officers found $15, 700 in cash in Mr. Sorensen's pocket. A search warrant of Mr. Sorensen's Sioux Falls home yielded methamphetamine, drug paraphernalia, and a USPS mailing label for what appeared to be a different package Mr. Sorensen had mailed to Ms. Hartz on September 21, 2015. That label's return address was also Dave Beckman in Phoenix, Arizona. A search warrant was also obtained for Mr. Sorensen's vehicle. That search uncovered Mr. Sorensen's driver's license, treasury checks addressed to Mr. Sorensen, four cell phones, methamphetamine, marijuana, cocaine, and other drug substances, three firearms, drug paraphernalia, and the USPS package mailing label and printed receipt for the intercepted package.

The inspectors extracted data from two of Mr. Sorensen's cell phones. The extraction reports and physical examinations showed Mr. Sorensen had “Gayle” saved as a contact in two of the phones which were displayed to the jury at trial. He saved Ms. Hartz' address under each of the “Gayle” contact listings, and misspelled “Luverne” as “Luvern” just like the label on the intercepted package. The only other address in each of the phones was the exact return address, including the same misspelling of the City “Surprise” as “Suprise” as it also appeared on the label of the intercepted package. The inspection of the phones also confirmed the text messages between Ms. Hartz and Mr. Sorensen regarding the intercepted package.

The inspectors also received proof Mr. Sorensen had called the ASK USPS hotline to check the status of the intercepted package. Additionally, the postal inspectors discovered USPS records showing packages sent from Arizona to Ms. Hartz at addresses in Sioux Falls and Luverne on at least six different occasions, and flight records revealing that Mr. Sorensen took flights from Sioux Falls to Phoenix on dates corresponding with delivery of many of the packages.

At the trial, Ms. Hartz provided extensive testimony about her involvement with Mr. Sorensen. She testified that she met Mr. Sorensen in the early 2000s when she and her boyfriend would consume methamphetamine with Mr. Sorensen and his wife. Ms. Hartz began to work for Mr. Sorensen in 2014, after she lost her job. She accepted packages for Mr. Sorensen in exchange for money and drugs. Ms. Hartz testified she accepted approximately six packages containing methamphetamine for Mr. Sorensen.

A USPS forensic latent print analyst testified about latent prints found on the adhesive side of the packing tape on the intercepted package. She identified three prints on the tape which matched Mr. Sorensen's known prints.

The jury convicted Mr. Sorensen on both counts of the superseding indictment. See CR Docket No. 97. After the trial, but before sentencing, Mr. Sorensen dismissed attorneys Ramstad, Rivers, and Grostyan. See CR Docket Nos. 108-110. Mr. Sorensen retained his original attorney, Clint Sargent, to represent him for sentencing. Id.

On April 25, 2017, the district court sentenced Mr. Sorensen to life in prison for his drug distribution conspiracy conviction, which sentence was mandatory because of the effect of the government's having filed its § 851 information. See CR Docket No. 148. The court stated at sentencing that, absent the § 851 information, it probably would not have sentenced Mr. Sorenson to life imprisonment. See ST (CR Docket No. 157), p. 28. Without the enhancement, the very bottom of Mr. Sorensen's guideline range would have been 360 months (30 years), which the district court indicated it “probably would” have imposed. Id.

On count 2 charging possession of a firearm by a prohibited person the district court sentenced Mr. Sorensen to ten years' imprisonment, to be served concurrently with the sentence imposed on count 1. Id.

B. The Direct Appeal

Mr Sorensen appealed the conviction and sentence. See CR Docket No. 150. Attorney Clint Sargent filed the notice of appeal, but Paul Engh, a Minneapolis lawyer, as well as Mr....

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