United States v. Chestang
| Decision Date | 22 January 2014 |
| Docket Number | CIVIL ACTION 13-0233-WS-N,CRIMINAL NO. 11-0211-WS-N |
| Parties | UNITED STATES OF AMERICA v. GARNER HOWARD CHESTANG, Defendant/Petitioner. |
| Court | U.S. District Court — Southern District of Alabama |
This matter comes before the Court on defendant/petitioner Garner Howard Chestang's Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (doc. 40). The Motion has been briefed and is now ripe for disposition.
On July 28, 2011, Garner Howard Chestang was indicted in this District Court and charged with one count of possession with intent to distribute approximately 28 grams of methamphetamine, in violation of 21 U.S.C. § 841(a)(1). The Indictment (doc. 13) charged that the quantity of methamphetamine exceeded 5 grams, such that Chestang was subject to the penalty provisions of 21 U.S.C. § 841(b)(1)(B), including a 10-year minimum sentence if he committed the violation after a prior conviction for a felony drug offense had become final. On September 8, 2011, the Government filed a Notice (doc. 21) asserting that Chestang had previously been convicted of a felony drug offense (Possession of Marijuana 1st) in state court in December 2001, that such prior felony conviction was final, and that Chestang was therefore subject to the 10-year mandatory minimum sentence specified in § 841(b)(1)(B) if convicted as to Count One.
Chestang, who was represented by appointed counsel, ultimately elected to plead guilty to Count One. On September 14, 2011, Chestang signed a Plea Agreement and Factual Resume (doc. 24). In those documents, Chestang acknowledged that he was subject to a minimum mandatory term of imprisonment of 10 years as to Count One. (Plea Agreement, at ¶ 11.) Chestang also admitted that he had sold one ounce of methamphetamine to a confidential informant on May 11, 2011, that lab testing had revealed the methamphetamine to have a netweight of 26.54 grams and to be 44.8% pure, and that "the methamphetamine was comprised of 11.88 grams of pure methamphetamine." (Factual Resume, at 4-5.) Judge DuBose conducted a change of plea hearing on September 19, 2011, accepted Chestang's guilty plea, and found him guilty as charged. (Doc. 25, at 1.)
Prior to sentencing, the U.S. Probation Office prepared a Presentence Investigation Report (doc. 26). Applying the drug quantity table, the PSR noted that Chestang's base offense level would be set at 26 based on his admission that he was involved with the distribution of 11.88 grams of methamphetamine (actual). (Doc. 26, ¶ 27.)1 After subtracting three levels for acceptance of responsibility, the PSR identified Chestang's adjusted offense level as 23. However, the PSR also explained that Chestang qualified as a career offender under U.S.S.G. § 4B1.1, which ratcheted his base offense level up to 37 and his total offense level (after acceptance of responsibility) up to 34. These career offender calculations (and not the offense levels drawn from the drug quantity table found at § 2D1.1(c)(7)) fixed the operative guidelines range for Chestang.2 When combined with his criminal history category of VI (as dictated by U.S.S.G. § 4B1.1(b)), Chestang was facing a guideline range of 262 to 327 months. Neither Chestang (by and through counsel) nor the Government objected to the PSR's calculations. 3
Fortunately for Chestang, the plea agreement that his lawyer negotiated left open the possibility of the Government exercising discretion to file a § 5K1.1 motion for downward departure at sentencing if Chestang provided cooperation resulting in substantial assistance in the investigation or prosecution of other criminal matters. During late 2011 and early 2012, Chestang indeed cooperated with the Government. Those activities benefited him greatly. On April 3, 2012, the Government filed a Motion for Reduction of Sentence (doc. 35) pursuant to U.S.S.G. § 5K1.1, recommending a downward departure of 50% from the low end of Chestang's guidelines range because of his substantial assistance in cooperating with the Government.4
At the sentencing hearing on April 4, 2012, the undersigned adopted the PSR without change, and calculated Chestang's total offense level at 34, his criminal history category at VI, and his sentencing guideline range at 262 to 327 months. (See doc. 39.) Notwithstanding these findings, the Court departed downward from the advisory guideline range based on the Government's § 5K1.1 motion, and imposed a 120-month sentence that represented the mandatory minimum sentence prescribed by 21 U.S.C. § 841(b)(1)(B). The net result was that Chestang received the lowest sentence available under the statute he had pleaded guilty to violating, a sentence that was 54% below the low end of his advisory guideline range.
Subsequently, Chestang executed a Notice of Non-Appeal (doc. 37) on April 4, 2012, in which he acknowledged that his attorney had advised him of his right to appeal the conviction and sentence, that counsel had explained the advantages and disadvantages of taking an appeal, that he had received sufficient time to consider his options and required no further explanation, and that "it is my desire to inform the Court that I do not wish to take an appeal." (Doc. 37, at 1.) Chestang's counsel signed the same document, certifying that he had indeed consulted withChestang about the advantages and disadvantages of an appeal, and that he believed Chestang's decision not to appeal was knowing and voluntary. (Id.) As reflected in the Notice of Non-Appeal, Chestang did not pursue a direct appeal of his conviction or sentence.
On April 3, 2013, Chestang filed his § 2255 Motion, collaterally attacking his sentence on three grounds. First, Chestang asserts that he received ineffective assistance of counsel because his lawyer (i) failed to object to the base offense level, (ii) failed to request a lab report to verify the drug quantity, (iii) failed to challenge the 120-month sentence as "unreasonable," and (iv) failed to file a notice of appeal. Second, Chestang maintains that the PSR "erroneously calculated the amount of drugs" and argues that one ounce of methamphetamine should have yielded a guideline range of 84 to 105 months. (Doc. 40, at 5.) Third, Chestang seeks relief on the ground that "Defendant requested that counsel filed [sic] a notice of appeal," but "Counsel never responded." (Id. at 7.)
Collateral relief is an extraordinary remedy which "may not do service for a[ ] [direct] appeal." United States v. Frady, 456 U.S. 152, 165, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982); see also Lynn v. United States, 365 F.3d 1225, 1232 (11th Cir. 2004) (). A defendant who has waived or exhausted his right to appeal is presumed to stand "fully and finally convicted." Frady, 456 U.S. at 164. The scope of collateral attack has remained extremely limited. "At least where there has been no intervening change in controlling law, a claim or issue that was decided against a defendant on direct appeal may not be the basis for relief in a § 2255 proceeding." Rozier v. United States, 701 F.3d 681, 684 (11th Cir. 2012) (citations omitted).
It is black-letter law that "section 2255 generally cannot be used to challenge an issue that the defendant could have raised on direct appeal but failed to." Spencer v. United States, 727 F.3d 1076, 1091 (11th Cir. 2013) (citations omitted). Thus, "[u]nder the procedural default rule, a defendant generally must advance an available challenge to a criminal conviction or sentence on direct appeal or else the defendant is barred from presenting that claim in a § 2255 proceeding." McKay v. United States, 657 F.3d 1190, 1196 (11th Cir. 2011) (citation omitted). A defendant's procedural default can be excused under one of two exceptions: "(1) for cause and prejudice, or (2) for a miscarriage of justice, or actual innocence." Id. "Under the cause andprejudice exception, a § 2255 movant can avoid application of the procedural default bar by showing cause for not raising the claim of error on direct appeal and actual prejudice from the alleged error." Id. (citation and internal marks omitted).
"Constitutionally ineffective assistance of counsel can constitute cause" that excuses a procedural default. Brown v. United States, 720 F.3d 1316, 1333 (11th Cir. 2013) (citation omitted). "In order to do so, however, the claim of ineffective assistance must have merit." Id. (citation omitted). "To determine whether counsel's performance at trial fell below the level of effectiveness [guaranteed by] the Sixth Amendment usually requires courts to apply the familiar two-part test established in Strickland v. Washington." Darden v. United States, 708 F.3d 1225, 1228 (11th Cir. 2013). Thus, a § 2255 petitioner alleging ineffective assistance "must show that counsel's representation fell below an objective standard of reasonableness, and that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Brown, 720 F.3d at 1326.
"First, the defendant must show that his lawyer's performance was deficient," by overcoming "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance," which is accomplished by demonstrating "that it was objectively unreasonable." Darden, 708 F.3d at 1228 (citation and internal quotation marks omitted). "The question is whether an attorney's representation amounted to incompetence under prevailing professional norms, not whether it deviated from best practices or most common custom." Harrington v. Richter, --- U.S. ----, 131 S.Ct. 770, 788, 178 L.Ed.2d 624 (2011) (citation and internal quotation marks omitted). "Second, the defendant must show that the...
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