JOHN E. STEELE, District Judge.
This matter comes before the Court on petitioner's Motion Under 28 U.S.C. Section 2255 to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody (Cv. Doc. #1; Cr. Doc. #498)
On September 16, 2009, a federal grand jury in Fort Myers, Florida returned a two-count Indictment (Cr. Doc. #3) charging Jason Bergin and others with Conspiracy to Possess with Intent to Distribute Oxycodone, Methadone, and Alprazolam on and between January, 2008 and July 28, 2009 (Count One) and Possession with Intent to Distribute Oxycodone and Methadone on or about July 28, 2009 (Count Two). Petitioner filed a Motion to Suppress Evidence (Cr. Doc. #92), and after a hearing, the Magistrate Judge issued a Report and Recommendation (Cr. Doc. #205) recommending denial. On August 6, 2010, after review of objections filed, the undersigned issued a 54-page Opinion and Order (Cr. Doc. #300) adopting in part and rejecting in part the Report and Recommendation and suppressed certain testimony.
Petitioner waived his right to a jury trial (Cr. Doc. #360) and filed a Stipulation (Cr. Doc. #376) of facts. The undersigned found petitioner guilty of Count One on December 10, 2010, at a bench trial based upon the stipulated facts, and the government dismissed Count Two. (Cr. Docs. ## 399, 430.) On March 7, 2011, the Court sentenced petitioner to a term of imprisonment of 180 months, followed by a term of three years supervised release. Judgment was entered the following day. (Cr. Doc. #433.)
Petitioner appealed, arguing the Court erred when it denied his pretrial motion to suppress evidence. The Eleventh Circuit Court of Appeals affirmed petitioner's conviction on January 12, 2012 (Cr. Doc. #484);
Petitioner raises the following claims in his § 2255 motions: (1) the sentencing court improperly considered a state court conviction for domestic violence for which petitioner has filed a timely post-conviction motion; (2) the sentencing court improperly considered a state court conviction for gaming for which petitioner has filed a timely post-conviction motion; (3) petitioner received ineffective assistance of counsel because his attorney failed to object to the drug weight relied upon by the court in determining a base offense level of 34; (4) petitioner received ineffective assistance of counsel because his attorney failed to object to the use of his gambling conviction in the computation of petitioner's criminal history; (5) petitioner received ineffective assistance of counsel because his attorney failed to seek a downward departure based on petitioner's diminished capacity; and (6) petitioner received ineffective assistance of counsel because his attorney failed to seek a downward departure based on United States Sentencing Manual (U.S.S.G.) Sections 5G1.3 and 5K2.23.
Petitioner asserts that his sentence was improper because the sentencing court considered a state court conviction for domestic violence for which petitioner has filed a timely post-conviction motion. Petitioner's Reply states that he is not actually raising this as an issue, but simply providing the court with notice that he will seek resentencing if his domestic violence conviction is vacated. (Cv. Doc. #11, p. 4.) Petitioner asserts that under
Similarly, petitioner asserts that his sentence was improper because the sentencing court considered a state court conviction for gaming for which petitioner has filed a timely post-conviction motion. Again, petitioner does not assert that the gaming conviction has been vacated, only that re-sentencing will be appropriate if that occurs. Petitioner's Reply states that he is not actually raising this as an issue, but simply providing the court with notice that he will seek resentencing if his gaming conviction is vacated. (Cv. Doc. #11, p. 4.) Since there is no claim being asserted, Ground Two is dismissed.
A district court shall hold an evidentiary hearing on a habeas petition "unless 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(b). "[I]f the petitioner alleges facts that, if true, would entitle him to relief, then the district court should order an evidentiary hearing and rule on the merits of his claim."
The legal standard for ineffective assistance of counsel claims in a habeas proceeding is well established. To prevail on a claim of ineffective assistance of counsel, a habeas petitioner must demonstrate both that (1) counsel's performance was deficient because it fell below an objective standard of reasonableness, and (2) prejudice resulted because there is a reasonable probability that, but for the deficient performance, the result of the proceeding would have been different.
The proper measure of attorney performance is simply reasonableness under prevailing professional norms considering all the circumstances.
To establish prejudice under
A member of a drug conspiracy is liable for his own acts and the acts of others in furtherance of the activity that he agreed to undertake and that are reasonably foreseeable in connection with that activity.
"To determine the quantity of drugs attributable to a defendant for sentencing purposes, the district court must first make individualized findings concerning the scope of criminal activity undertaken by the defendant."
Count One of the Indictment alleged the conspiracy was "[f]rom on or between January, 2008 and July 28, 2009". (Cr. Doc. #3.) Petitioner filed a trial Stipulation (Cr. Doc. #376) which, as he acknowledged in open court, he had read and signed after discussing its contents with his attorney, and understood that he was stipulating to sufficient facts that would allow the Court to find him guilty of Count One. (Cr. Doc. #380, pp. 4-6.) In the Stipulation, petitioner agreed that "[o]n or between January 2007 and July 28, 2009" he conspired to possess with intent to distribute a quantity or substance containing Oxycodone, Methadone, and Alprazolam, in the Middle District of Florida, in Lee and Collier County." (Cr. Doc. #376, p. 1.) Petitioner stipulated that, beginning in early 2007, he and his wife created fraudulent prescriptions, went to local pharmacies weekly to have them filled, and then sold the pills.
The trial court found beyond a reasonable doubt that petitioner had conspired between January, 2007 and July 28, 2009, to possess with intent to distribute Oxycodone, Methadone, and Alprazolam; that petitioner knew the identity of each substance, and knew that they were being obtained by fraudulent prescriptions; that petitioner knew and agreed to distribute the substances, and provided a portion to each of the runners for the transactions the runners were involved in; that all of the participants knew the unlawful purpose of the plan and willfully joined in the plan; and that the object of the plan was to obtain possession of the controlled substances with the intent to distribute them. (Cr. Doc. #399.)
Given this record, there was simply no basis for defense counsel to object to the quantity of drugs attributed to petitioner. Petitioner and his wife were the leaders and organizers of the conspiracy, knew the entire scope and the activities of the various runners, were involved in or reasonably foresaw all the transactions, and profited from them. The quantities set forth in the Presentence Report are conservative estimates amply supported by the evidence. (Presentence Report, ¶ 51.)
Pursuant to the Stipulation, the 2007 transactions did not pre-date the conspiracy, but were part of the actual conspiracy which petitioner admitted. In any event, the pre-January 2008, conduct was clearly relevant conduct for which petitioner was properly held accountable. "The Guidelines Manual provides that types and quantities of drugs not specified in the count of the conviction are to be included, as relevant conduct, in determining the offense level if they were part of the same course of conduct or part of a common scheme or plan as the count of conviction." U.S.S.G. § 1B1.3(a)(2), cmt. n.9 (Nov. 2011). We broadly interpret the provisions of the relevant conduct guideline.
Petitioner is also incorrect in his asserting that being in jail means a person is not part of the conspiracy and cannot be held accountable for drug transactions during that time period. As the Presentence Report stated, during periods when petitioner was in custody, petitioner's wife carried on their controlled substance scheme. Petitioner did nothing to withdraw from the conspiracy while in jail, and continued with the drug activities after his release. Thus, there was no basis for defense counsel to seek a departure because petitioner had previously been in jail for substantive drug offenses.
Petitioner has shown neither deficient performance by his attorney nor resulting prejudice. Petitioner's claims of ineffective assistance of counsel are without merit as to Ground Three.
The Sentencing Guidelines provide that, with two exceptions, "[s]entences for misdemeanor and petty offenses are counted" toward a defendant's criminal history score. U.S.S.G. § 4A1.2(c) (2010). Under the allegedly relevant exception, certain enumerated offenses and "offenses similar to them" are to be disregarded unless "(A) the sentence was a term of probation of more than one year or a term of imprisonment of at least thirty days, or (B) the prior offense was similar to an instant offense." U.S.S.G. § 4A1.2(c)(1) (2010). Among those offenses specifically listed in § 4A1.2(c)(1), is the offense of "gambling".
Petitioner is incorrect in asserting that he was convicted of "gaming." The Presentence Report simply states he was convicted of a misdemeanor, and there was no issue raised as to what misdemeanor. As the attached Clark County Court Records establish, the gaming counts were dismissed and petitioner was convicted of the misdemeanor "theft".
It remains to be determined whether this "theft" is sufficiently similar to gambling that it should not have been assessed a criminal history point. In making this determination, a court is directed to "use a common sense approach that includes consideration of relevant factors such as (i) a comparison of punishments imposed for the listed and unlisted offenses; (ii) the perceived seriousness of the offense as indicated by the level of punishment; (iii) the elements of the offense; (iv) the level of culpability involved; and (v) the degree to which the commission of the offense indicates a likelihood of recurring criminal conduct." U.S.S.G. § 4A1.2, cmt. n.12 (2010). This requires the court to consider the facts underlying petitioner's conviction.
The Presentence Report states that petitioner was charged with several offenses in 2001 in Las Vegas, Nevada. As relevant to this issue, petitioner was charged with "Conspiracy to Commit Fraudulent Acts — Gaming", and pled guilty on September 9, 2002 to a "misdemeanor, sentenced to credit for jail time served." (Presentence Report, ¶ 62.) The Presentence Report does not identify the misdemeanor, but states that the Criminal Complaint in the case stated that petitioner was employed as a Boxman at the Venetian Casino Resort, and conspired with Richard Fisher to commit unlawful gaming acts at the Venetian Casino Resort. While playing craps, Fisher placed a wager without calling the bet, and after the dice had landed Bergin called the wager consistent with a winning hand. Bergin was ordered to pay $7,500 restitution as part of his sentence. (Presentence Report, ¶ 62.)
The facts set forth in the Presentence Report, to which no objection has ever been made, show that the conduct was in fact theft — a scheme to defraud a gambling establishment of money. This is not similar at all to gambling. Because petitioner's misdemeanor conviction was neither gambling nor similar to gambling, § 4A1.2(c) does not preclude a criminal history point from being assessed for the conviction. Therefore, no ineffective assistance of counsel occurred in failing to object to such an assessment.
Under U.S.S.G. Section 5K2.13, "[a] downward departure may be warranted if (1) the defendant committed the offense while suffering from a significantly reduced mental capacity; and (2) the significantly reduced mental capacity contributed substantially to the commission of the offense." U.S.S.G. § 5K2.13 (2010). The provision continues: "However, the court may not depart below the applicable guideline range if (1) the significantly reduced mental capacity was caused by the voluntary use of drugs or other intoxicants; (2) the facts and circumstances of the defendant's offense indicate a need to protect the public because the offense involved actual violence or a serious threat of violence; (3) the defendant's criminal history indicates a need to incarcerate the defendant to protect the public; or (4) the defendant has been convicted of an offense under chapter 71, 109A, 110, or 117, of title 18, United States Code."
The Presentence Report states that petitioner reported having attention problems during his early school years, having behavioral problems, and being diagnosed with bipolar disorder as a teenager. Petitioner reported he stopped taking the medication prescribed for him. (Presentence Report, ¶ 83.) Petitioner reported drinking alcohol since the age of twelve, first trying marijuana at age 14, and continuing daily use of marijuana until his arrest in this case. (
It is clear that a reasonably competent attorney would not believe petitioner to be entitled to a downward departure due to diminished mental capacity. Nothing suggests petitioner came within the definition of "significantly reduced mental capacity." The record establishes that petitioner understood what he was doing when he committed the instant drug offense, and that he knew it was wrong, and that he had the ability to organize and lead a scheme create and pass fraudulent prescriptions with the help of others. Petitioner's primary issue was his long-standing voluntary drug use, not mental health issues, which is not a basis for a diminished capacity departure. There was no ineffective assistance of counsel in failing to further investigate, obtain an expert, or seek a diminished capacity departure.
Section 5G1.3 of the Sentencing Guidelines provides:
U.S.S.G. § 5G1.3 (2010). Section 5K2.23 of the Sentencing Guidelines provides:
U.S.S.G. § 5K2.23 (2010).
The Presentence Report reflects that petitioner was charged with seven counts of Obtaining a Controlled Substance by Fraud in one state court case, and charged with one count of Obtaining a Controlled Substance by Fraud in a second state case. (Presentence Report, ¶¶ 65, 66.) Petitioner pled guilty to both cases on May 13, 2008, and received concurrent probation sentences.
Neither of these Sentencing Guidelines provisions applied to this case. Section 5G1.3(b) does not apply because, while the two state cases were relevant conduct or part of the instant offense, neither were the basis for an increase in the offense level. No points were added for either set of convictions when the Presentence Report calculated the criminal history. Section 5K2.23 did not apply because §5G1.3(b) would not have provided an adjustment. Therefore, the failure to seek a departure based on these provision did not constitute ineffective assistance of counsel.
Accordingly, it is hereby
1. Petitioner's Motion Under 28 U.S.C. Section 2255 to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody (Cv. Docs. ## 1-2; Cr. Docs. ## 498-499) is
2. The Clerk of the Court shall enter judgment accordingly and close the civil file. The Clerk is further directed to place a copy of the civil Judgment in the criminal file.
Finally, because Petitioner is not entitled to a certificate of appealability, he is not entitled to appeal in forma pauperis.