US v. Rowland

• Decision Date: 07 April 1994
• Docket Number: Action No. 2:94cv72. Original Crim. No. 92-140-N.
• Citation: 848 F. Supp. 639
• Court: U.S. District Court — Eastern District of Virginia
• Parties: UNITED STATES of America, v. Phill J. ROWLAND, Defendant.

848 F. Supp. 639

UNITED STATES of America, v. Phill J. ROWLAND, Defendant.

Action No. 2:94cv72. Original Crim. No. 92-140-N.

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

April 7, 1994.

James A. Metcalfe, Asst. U.S. Atty., Norfolk, VA, for U.S.

Phill J. Rowland, pro se.

MEMORANDUM OPINION AND FINAL ORDER

REBECCA BEACH SMITH, District Judge.

I. Facts and Procedural History

On August 12, 1992, petitioner, Phill J. Rowland, defendant, was charged in a six count indictment with conspiracy to transport stolen property in interstate commerce, in violation of 18 U.S.C. § 371, and transportation of stolen property in interstate commerce, in violation of 18 U.S.C. § 2314. He was arraigned on August 26, 1992 and trial was scheduled for October 13, 1992, the Tuesday following the Columbus Day holiday.

On Friday, October 8, 1992, defendant appeared with counsel, Franklin A. Swartz, and pled guilty to all six counts of the indictment. However, there was no plea agreement because defendant wished to preserve his right to appeal his sentence. Defendant was sentenced on January 21, 1993.

At the sentencing, defendant objected to 1) the probation officer's recommendation of a four level enhancement, under Guidelines section 2B1.2(b)(4)(A), because defendant was a person in the business of receiving and selling stolen property; 2) the probation officer's valuation of the loss at $148,133; 3) the denial of an additional one point reduction for acceptance of responsibility; and 4) statements in the presentence report regarding his involvement in dealing drugs.¹ This court took evidence on the objections, heard argument, and sentenced defendant, in accordance with the Federal Sentencing Guidelines ("Guidelines"), to 24 months imprisonment together with restitution in the amount of $97,119. No appeal was filed by either defendant or the government.

On January 14, 1994, defendant filed a motion to vacate or set aside his sentence under 28 U.S.C. § 2255. The government responded to the motion on March 21, 1994.

Defendant claims that this court erred in applying the Guidelines when calculating his sentence. He alleges that the court erred in its determination of loss, should have granted him an additional one-point reduction for acceptance of responsibility, erred in awarding a four-point enhancement for being in the business of receiving and selling stolen property, and failed to make sufficient findings under 18 U.S.C. §§ 3663 and 3664 to sustain restitution. Def.'s Mot. at 3-5. Although defendant raised the first three of his objections at the sentencing proceeding, he made no objection to the order of restitution. Furthermore, as noted above, defendant did not appeal his sentence.

In deciding a section 2255 motion, the court need not hold an evidentiary hearing if "the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief...." 28 U.S.C. § 2255; see United States v. Samuelson, 722 F.2d 425, 427 (8th Cir.1983). Given the record and the briefs filed in this case, and for the reasons articulated below, the court concludes that defendant clearly is not entitled to any relief and finds no need to hold an evidentiary hearing.

II. Failure to Appeal

Defendant alleges that the court improperly applied the Guidelines in calculating his sentence and failed to make certain findings before ordering restitution. Such claims clearly are nonconstitutional in nature. United States v. Vaughan, 955 F.2d 367, 368 (5th Cir.1992) (holding that a district court's technical application of the Guidelines does not give rise to a constitutional issue). Defendant could have raised each of the grounds he asserts in this petition on direct appeal, but he failed to do so. Nonconstitutional claims that could have been raised on appeal, but were not, may not be asserted in collateral proceedings. Sunal v. Large, 332 U.S. 174, 182-83, 67 S.Ct. 1588, 1593, 91 L.Ed. 1982 (1947) (holding that, absent exceptional circumstances, defendants may not use collateral relief as a substitute for appeal); United States v. Emanuel, 869 F.2d 795, 796 (4th Cir.1989) (holding that claim that sentencing court did not comply with Federal Rule of Civil Procedure 32 was waived when not raised on appeal); McKnight v. United States, 507 F.2d 1034 (5th Cir.1975) (section 2255 court may deny relief to a federal prisoner who has deliberately bypassed appeal) (citing Kaufman v. United States, 394 U.S. 217, 227 n. 8, 89 S.Ct. 1068, 1074 n. 8, 22 L.Ed.2d 227 (1969)).² Because defendant failed to seek review of his claims on direct appeal, he has waived them and this court will not consider them now on a section 2255 motion. Defendant is "not being held `in violation of the ... laws of the United States.'" Emanuel, 869 F.2d at 796 (quoting 28 U.S.C. § 2255).

III. Grounds for 2255 Petition

Even if this court felt compelled to review defendant's claims or irregularity in the sentencing procedure, no grounds for relief exist. In a section 2255 collateral challenge, a petitioner is required to show "a good deal more than would be sufficient on a direct appeal from his sentence." United States v. Pollard, 959 F.2d 1011, 1020 (D.C.Cir.), cert. denied, ___ U.S. ___, 113 S.Ct. 322, 121 L.Ed.2d 242 (1992). Generally, claimed errors of federal law are cognizable on collateral attack by a section 2255 motion only if they amount to "fundamental defects which inherently result in a complete miscarriage of justice." Davis v. United States, 417 U.S. 333, 346, 94 S.Ct. 2298, 2305, 41 L.Ed.2d 109 (1974). Nonconstitutional errors must present "exceptional circumstances where the need for the remedy afforded by the writ of habeas corpus is apparent." Id.; see United States v. Biberfeld, 957 F.2d 98, 102 (3d Cir.1992) (sentencing court's error of fact provides basis for section 2255 relief only if the error constituted a fundamental defect); United States v. Perez, 952 F.2d 908, 909-10 (5th Cir.1992) (district court's failure to decrease sentence for acceptance of responsibility or to make proper findings in support of such denial were not fundamental defects subject to section 2255 review).

The errors defendant contends entitle him to relief on his petition simply do not rise to the level of "fundamental defects" resulting in "a complete miscarriage of justice" and, therefore, are not cognizable in a section 2255 action. Several courts have held that sentences within the statutory limits are insulated from section 2255 review. United States v. Fernandez, 941 F.2d 1488, 1494 (11th Cir.1991); Vaughan, 955 F.2d at 368; United States v. Patterson, 739 F.2d 191, 196 (5th Cir.1984) (pre-Guidelines case). Defendant's sentence was well within the statutory maximum and it is difficult to imagine how the claimed errors resulted in a miscarriage of justice. A review of each of defendant's grounds for relief reveals that his contentions lack merit.

A. Determination of Loss

Defendant claims that the court erred in its determination of loss under Guidelines section 2B1.1(b)(2), rejecting the testimony of a witness for defendant, and accepting the probation officer's analysis. This error, defendant claims, resulted in a two-point increase in his offense level. The gist of defendant's complaint is that the court should have relied on his expert's method of valuing the stolen equipment. He contends that the probation officer's valuation method was inherently unreliable because based on "double heresay sic" and "clairvoyance testimony." Def.'s Mot. at 3, ¶ 3.

Application note 2 to section 2B1.1 states that loss is ordinarily measured by the fair market value of the property at issue. United States Sentencing Commission, Guidelines Manual, § 2B1.1, comment. (n. 2) (Nov. 1992). Furthermore, application note 3 to the same section notes that "loss need not be determined with precision, and may be inferred from any reasonably reliable information available." Id., comment. (n. 3). The court heard testimony from the probation officer and from defendant's witness on the value of the stolen equipment. That the court rejected the testimony of defendant's witness and accepted that of the probation officer is not a ground for relief. It is the court's job, as factfinder, to judge of the credibility of the witnesses.³See United States v. Saunders, 886 F.2d 56, 60 (4th Cir.1989). A review of the probation officer's testimony at the sentencing hearing reveals that her valuation of the stolen backhoes was "reasonably reliable." Tr. at 5-21.⁴

Moreover, even accepting that the court should have used the method of valuation advanced by defendant's expert, defendant's sentence would not have been affected. Using the lowest figures provided by Mr. Mellott, the loss still would have been over $70,000. Thus, defendant would have been entitled to a one-point reduction in his offense level, not the two-point reduction he claims in his petition. Defendant's sentence range would have been 21-27 months rather than 24-30 months. Because he was sentenced to 24 months imprisonment, well within the lower range, defendant suffered absolutely no harm from the court's supposed error in valuation.

B. Acceptance of Responsibility

Defendant argues that he was entitled to a three-point reduction for acceptance of responsibility, rather than the two-point reduction he received. His argument is based upon the following facts: 1) he pled guilty four days before trial, 2) the government was able to call off its witnesses, 3) no jurors were inconvenienced, and 4) the United States Assistant Attorney was preoccupied. Def.'s Mot. at 4, ¶ 2. Furthermore, defendant apparently contends that he did not plead guilty earlier because his attorneys were concerned about a provision in the plea agreement waiving his right to appeal the sentence. Id. at 4, ¶ 1.

Section 3E1.1, Acceptance of Responsibility, provides an additional one level decrease in the offense level if:

the defendant has

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