U.S. v. Lipp
| Decision Date | 18 May 1999 |
| Docket Number | No. Crim. 92-40042-07-SAC.,No. Civ. 98-3108-SAC.,Civ. 98-3108-SAC.,Crim. 92-40042-07-SAC. |
| Citation | 54 F.Supp.2d 1025 |
| Parties | UNITED STATES of America, Plaintiff, v. Michael L. LIPP, Defendant. |
| Court | U.S. District Court — District of Kansas |
Melanie J. Branham, Olathe, KS, Thomas D. Haney, Fairchild, Haney & Buck, P.A., Topeka, KS, Dennis W. Moore, Lenexa, KS, James P. Moran, Office of Federal Public Defender, Denver, CO, for Defendant.
Jonathan B. Phelps, Topeka, KS, pro se.
David J. Phillips, Office of Public Defender, Topeka, KS, pro se.
Edith Wacker, Dublin, CA, pro se.
John lee Wacker, Oklahoma City, OK, pro se.
Lewis Theodor Wacker, Lincoln, KS, pro se.
Perl Glen Van Pelt, FCI — GREENVILLE, Greenville, IL, for defendant represented by Van Pelt pro se.
On July 9, 1993, the jury found the defendant, Michael Lipp, guilty of counts 1 (conspiracy to possess marijuana with intent to distribute), 2 (use of a firearm during and in relation to a drug trafficking crime), 3 (possession of a firearm by a convicted felon), 5 (possession with intent to distribute marijuana), 6 (possession with intent to distribute marijuana), 7 (use of a firearm during and in relation to a drug trafficking crime),1 10 (possession of a firearm by a convicted felon) and 11 (possession with intent to distribute marijuana) of the superseding indictment. Lipp was found not guilty on counts 4, 12 and 15. All of Lipp's codefendant's were also convicted of conspiracy to distribute marijuana and other crimes charged in the superseding indictment. See United States v. Van Pelt, No. 92-40042-01, 03-07-SAC, 1993 WL 360329 (D.Kan. August 17, 1993) (). On December 21, 1993, the defendant was sentenced to a primary term of incarceration of 180 months. At trial and through sentencing, Lipp was represented by retained counsel John Ambrosio.
On December 26, 1995, the Tenth Circuit issued its opinion which affirmed all of Lipp's convictions except Count 2, the Count which charged a violation of 18 U.S.C. § 924(c). See United States v. Wacker, 72 F.3d 1453 (10th Cir.1995), cert. denied, 519 U.S. 848, 117 S.Ct. 136, 136 L.Ed.2d 84 (1996). The § 924(c) conviction was overturned in light of the Supreme Court's decision in Bailey. Id. at 1463-65. On appeal, Lipp was represented by retained counsel Susan Hunt. Lipp's case was remanded to this court for resentencing.
After remand of Lipp's case (and his codefendant's related cases), this court entered a memorandum and order in which it concluded that upon vacation of the § 924(c) conviction, this court could, in its discretion, enhance each defendant's sentence pursuant to U.S.S.G. § 2D1.1(b)(1) (). See United States v. Van Pelt, 938 F.Supp. 697 (D.Kan.1996), aff'd, 131 F.3d 153, 1997 WL 716136 (10th Cir.1997), cert. denied, ___ U.S. ___, 118 S.Ct. 1333, 140 L.Ed.2d 493 (1998). In Lipp's case, the enhancement under § 2D1.1(b)(1) resulted in a guideline range of 120-121 months. In the exercise of its discretion, this court chose not to enhance the defendant's sentence. See Van Pelt, 938 F.Supp. at 707 n. 1 ( ). On April 2, 1997, this court imposed a primary term of incarceration of 120 months. Lipp did not appeal that sentence.
This case comes before the court upon the Lipp's "Motion to Vacate, Set Aside or Correct Sentence By a Person in Federal Custody" (Dk.813). Lipp's motion was prepared by retained counsel Susan Hunt, the same attorney who represented him on appeal and before this court after remand. Lipp's motion first claims that his first attorney, John Ambrosio, was ineffective in failing to challenge the presentence investigation report's (PSI's) calculation of the weight of the marijuana attributed to him. Second, Lipp contends that the introduction of the nature of his previous convictions (1972 conviction for possession with the intent to distribute marijuana/1976 conviction for two counts of murder) when he offered to stipulate to the fact of his prior felony convictions violated his constitutional rights to due process and a fair trial. Third, Lipp contends that he was denied effective assistance of counsel when his trial counsel failed to investigate the government's key witness, Carla Wacker, and to present key impeachment evidence concerning her lack of credibility. Finally, Lipp contends that the court's introduction of "front sheets" authored by Edith Wacker violated his right to a fair trial.
After reviewing the defendant's motion, the court instructed the government to file a response. The government opposes the defendant's motion. First, the government contends that the PSI properly calculated the weight of the marijuana attributable to this defendant under Tenth Circuit precedent (citing United States v. Pinedo- Montoya, 966 F.2d 591 (10th Cir. 1992) ()). Second, the government contends the defendant's arguments regarding the introduction of facts relating to his previous convictions presents an issue previously decided and rejected by the Tenth Circuit. Third, the government contends that Lipp's trial counsel was not ineffective in failing to investigate the government's witness, Carla Wacker. Finally, the government contends that the Tenth Circuit has fully addressed the issue of the "front sheets" and that this collateral challenge is therefore barred.
The defendant filed a reply, noting that the 1993 amendments to Application Note 1 of U.S.S.G. § 2D1.1 of the sentencing guidelines essentially overruled the Tenth Circuit's precedent in Pinedo-Montoya and the Seventh Circuit's analysis in Garcia. According to the defendant, based upon the weights he could prove at an evidentiary hearing, only 93.85 kilograms of marijuana are attributable to him. Therefore the mandatory minimum sentence would not apply to him (less than 100 kilograms of marijuana) and the court could sentence Lipp to a period of incarceration anywhere within the newly calculated guideline range of 63 to 78 months (base offense level of 24/Criminal History Category of III = guideline range of 63 to 78 months).
After reviewing the parties' briefs, the court set an evidentiary hearing to consider evidence pertaining to the amount of marijuana properly attributable to Lipp. On May 11, 1999, the court conducted that hearing. At the hearing, James Chappas, the court-appointed attorney who represented James Cooley, a co-defendant of Lipp's, testified that immediately prior to his client's sentencing in November of 1993 he and Special Agent Halverson of the Kansas Bureau of Investigation (KBI) reweighed the marijuana described in Counts 5, 6 and 11. Chappas testified that on November 22, 1993, that marijuana weighed a total of 93.85 kilograms. Special Agent Halverson also testified at the hearing. Special Agent Halverson agreed that the weight of the marijuana had decreased since it was originally seized, but attributed the loss of weight to evaporation, "shake" and consumption of a portion of the marijuana by rodents.
"Section 2255 motions are not available to test the legality of matters which should have been raised on direct appeal." United States v. Warner, 23 F.3d 287, 291 (10th Cir.1994) (citation omitted). "Consequently, a defendant may not raise claims that were not presented on direct appeal unless he can show cause and prejudice resulting from the error." United States v. Cook, 45 F.3d 388, 392 (10th Cir.1995) (citing Warner). "A defendant may establish cause for his procedural default by showing that he received ineffective assistance of counsel in violation of the Sixth Amendment." Cook, 45 F.3d at 392 (citing Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986)). Conversely, absent special circumstances, "[a] § 2255 may not relitigate issues that were raised and considered on direct appeal." United States v. Perez, 129 F.3d 255 (2d Cir.1997), cert. denied, ___ U.S. ___, 119 S.Ct. 384, 142 L.Ed.2d 318 (1998); United States v. Prichard, 875 F.2d 789, 791 (10th Cir.1989) (); Barton v. United States, 791 F.2d 265, 267 (2d Cir.1986) ().
The Sixth Amendment of the United States Constitution provides that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defense." "An indigent defendant in a criminal trial has the constitutional right to the assistance of counsel." Baker v. Kaiser, 929 F.2d 1495, 1498 (10th Cir.1991) (citing Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963)). "The right to counsel also extends to a defendant's first appeal as of right." Baker, 929 F.2d at 1498 (citing Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963)).
In criminal prosecutions, "the...
To continue reading
Request your trial
-
State v. Gonzales
...of the trafficking statute is when the marijuana is usable or suitable for consumption. We disagree. Defendant cites United States v. Lipp, 54 F.Supp.2d 1025 (D.Kan.1999), aff'd, 215 F.3d 1338 (2000), as guidance for their interpretation of "marijuana" as read in the North Carolina statutes......
-
Wilkerson v. State
...16. (citations omitted). 17. (citation omitted). 18. (emphasis added) (citations omitted). 19. See generally United States v. Lipp, 54 F.Supp.2d 1025, 1037-38 (D.Kan.1999). (other citations 20. United States v. Hayes, 369 F.3d 564, 567 (D.C.Cir.2004). (other citations omitted). 21. "The cre......