United States v. Gladden, 07-cr-1229-2 (JSR)

• Court: United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
• Writing for the Court: JED S. RAKOFF, U.S.D.J.
• Citation: 394 F.Supp.3d 465
• Parties: UNITED STATES of America v. Kenroy GLADDEN, Defendant.
• Decision Date: 20 August 2019
• Docket Number: 16-CV-9994 (JSR) (KNF),07-cr-1229-2 (JSR)

394 F.Supp.3d 465

UNITED STATES of America
v.
Kenroy GLADDEN, Defendant.

07-cr-1229-2 (JSR)
16-CV-9994 (JSR) (KNF)

United States District Court, S.D. New York.

Signed August 20, 2019

394 F.Supp.3d 470

Jennifer Eileen Burns, Timothy Vincent Capozzi, U.S. Attorney's Office, New York, NY, for United States of America.

Randa Dea Maher, Great Neck, NY, for Defendant.

OPINION AND ORDER

JED S. RAKOFF, U.S.D.J.

Before the Court is defendant Kenroy Gladden's motion to vacate his sentence pursuant to 28 U.S.C. § 2255. See Motion to Vacate, ECF No. 83.¹ The Honorable Kevin N. Fox, United States Magistrate Judge, held an evidentiary hearing on April 19, April 20, and May 17, 2018. Judge Fox subsequently issued a Report and Recommendation recommending that the Court grant Gladden's motion. Report and Recommendation ("R & R"), ECF No. 139. The Government timely filed objections, see ECF Nos. 140–41, to which Gladden responded, see ECF No. 143.

For the reasons that follow, the Report and Recommendation is adopted in part and Gladden's motion is granted.

I. Procedural History

As set forth in more detail in the Report and Recommendation, see R & R 1–7, Gladden was convicted, after a jury trial, of one count of conspiracy to distribute and possess with intent to distribute more than 50 grams of crack cocaine, in violation of 21 U.S.C. § 846 ; one count of distribution and possession with intent to distribute of more than five but less than 50 grams of crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B)(iii) ; and one count of possession of a firearm in furtherance of a drug trafficking offense, in violation of 18 U.S.C. § 924(c)(1)(A). At the time of conviction, conspiracy to distribute more than 50 grams of crack triggered a mandatory minimum sentence of 10 years' imprisonment, or, for someone who, like Gladden, had a prior felony drug conviction, 20 years. See 21 U.S.C. § 841(b)(1)(A) (2006). This Court imposed the mandatory minimum sentence of 300 months' incarceration, comprising 20 years for the crack charge and five years consecutive for the gun charge. See Judgment, ECF No. 32.²

The Second Circuit affirmed Gladden's conviction on appeal, but vacated his sentence based on then-applicable circuit precedent decided after the initial sentencing, which held that the mandatory consecutive minimum for the § 924(c) charge did not apply when, as here, the defendant was also subject to a separate, longer mandatory minimum. United States v. Gardner, 369 F. App'x 190, 192 (2d Cir. 2010) (summary order) (citing United States v. Williams, 558 F.3d 166 (2d Cir. 2009) ). The court therefore remanded for resentencing. See Mandate of U.S.C.A. 6, ECF No. 40. Subsequently, the Supreme Court abrogated Williams, see Abbott v. United States, 562 U.S. 8, 131 S.Ct. 18, 178 L.Ed.2d 348 (2010), but Congress then enacted the Fair Sentencing Act ("FSA"). Among other things, the FSA increased the weight threshold to trigger the highest mandatory minimum sentence for distributing crack cocaine from 50 grams to 280 grams, and the threshold for the second-highest

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mandatory minimum from five grams to 28 grams. See Fair Sentencing Act § 2(a), 124 Stat. 2372 (2010) (codified at 21 U.S.C. § 841 ).

During the resentencing on remand, Gladden sought reduction of his sentence pursuant to the FSA. This Court initially held that the FSA did not apply retroactively to offenders who, like Gladden, were convicted prior to its enactment. See Memorandum Order and Judgment, ECF No. 53. The Court therefore reimposed the original 25-year sentence. But the Supreme Court held soon after that the FSA does apply to such offenders, see Dorsey v. United States, 567 U.S. 260, 263, 132 S.Ct. 2321, 183 L.Ed.2d 250 (2012), and so the Second Circuit again vacated Gladden's sentence and remanded for de novo resentencing, see Mandate of U.S.C.A., ECF No. 57. The result of all this was that Gladden was still subject to mandatory minimum sentences for both the crack charge and the gun charge, but his minimum for the crack charge was only 10 years, resulting in a total mandatory minimum of 15 years.

For the second resentencing, the Court asked the parties to brief the issue of whether the Sentencing Guidelines' eighteen-to-one "multiplier" for crack offenses – i.e. recommending the same offense level for a given quantity of crack cocaine equal to the offense level for that eighteen times that quantity of powder cocaine – was rational. Based on the parties' submissions, see ECF Nos. 60–61, and its own review of the available research, the Court concluded that this disparate treatment of crack and powder cocaine was not rational. See Opinion and Order 11, ECF No. 63. The Court therefore declared that it would calculate Gladden's Guidelines range based on the offense level for powder cocaine. Id. The Court further found that, although the offense of conviction required only 50 grams or more of crack, in fact at least 3.6 kilograms of crack were involved in the conspiracy. See Tr. June 30, 2014, at 3. The Guidelines range would therefore have been 147 to 168 months, but, as a result of the statutory minimums, it was increased to 180 months. Id. at 24. The Court imposed a sentence of 204 months, or 17 years. Id. at 31; Amended Judgment, ECF No. 71.³ It is that amended judgment that Gladden now collaterally attacks, asserting that he was deprived of the effective assistance of counsel.

Specifically, Gladden's motion asserts five separate grounds for relief: (1) that his trial counsel was constitutionally ineffective for failing to move to suppress evidence recovered from Gladden's car; (2) that his trial counsel was ineffective for stipulating that the drugs involved were crack cocaine, rather than powder; (3) that his trial counsel was ineffective for not objecting to the admission of a firearm seized from another person; (4) that his appellate counsel was ineffective for not arguing that Gladden's prior New York state conviction does not qualify as a "controlled substance offense" for federal sentencing purposes; and (5) that his appellate counsel (who also represented Gladden at his resentencing upon remand) was ineffective for failing to object to the Court's drug quantity calculation during resentencing. Magistrate Judge Fox recommended granting Gladden relief on the first, second, third, and fifth grounds. R & R 78, 80–81, 83, 91. The Government timely filed objections.⁴

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II. Discussion

Having reviewed the Report and Recommendation, the parties' contentions, the transcript of the evidentiary hearing, and the underlying documents, the Court hereby adopts all of Judge Fox's proposed findings of fact, except as specifically indicated below. However, the Court adopts some, but not all, of Judge Fox's proposed conclusions of law. As discussed in greater detail below, the Court does not adopt Judge Fox's recommendation that Gladden's motion be granted on grounds two, three, or five. The Court agrees, however, that Gladden is entitled to relief on ground one. The Court will discuss those arguments in reverse order, beginning with the arguments that the Court rejects and finishing with the one ground that merits relief.

A. Standard of Review

All of Gladden's claims sound in ineffectiveness of counsel. To establish ineffectiveness, a defendant must show both that (1) his counsel's performance was below the threshold of minimal competence required by the Constitution and (2) he was prejudiced. Deficient performance means performance "outside the wide range of professionally competent assistance." Strickland v. Washington, 466 U.S. 668, 690, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Counsel is presumed to render satisfactory performance, and "the defendant must rebut this presumption by proving that his attorney's representation was unreasonable under prevailing professional norms." Kimmelman v. Morrison, 477 U.S. 365, 384, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986). Competent counsel is expected, among other things, to make reasonable investigations, or to have reasonable grounds for not making such investigations. Id. at 385, 106 S.Ct. 2574.

A showing of prejudice requires proof that "counsel's errors were so serious as to deprive the defendant of a fair trial," that is, "a trial whose result is reliable." Id. at 687, 104 S.Ct. 2052.

B. Claim Two: Failure to Contest Lab Results

Gladden contends that trial counsel was ineffective for stipulating that the drugs recovered were "cocaine base" – what is more commonly known as crack cocaine. The record contains a police "memorandum" purporting to identify a package of drugs vouchered on September 29, 2007 as "cocaine" with a weight of 24.584 grams and a "purity" of 87.9%. R & R 79. The memorandum does not facially distinguish between crack and powder cocaine, and, as Judge Fox noted, the memorandum is not itself a lab report certified by a qualified chemist.

Judge Fox concluded that, in the absence of a lab report confirming the

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drugs recovered to be crack, trial counsel erred in stipulating to that fact. R & R 79–80. The Court disagrees. The cocaine at issue was sold by Najir Williams – a...