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Kimbrough v. United States

United States District Court, N.D. Ohio, Eastern Division

January 18, 2018

Trayshon Kimbrough, Petitioner/Defendant,
v.
United States of America, Respondent/Plaintiff.

          MEMORANDUM OF OPINION AND ORDER

          PATRICIA A. GAUGHAN JUDGE.

         INTRODUCTION

         This matter is before the Court upon petitioner's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (Doc. 361). For the reasons that follow, the motion is DENIED.

         FACTS

         Petitioner was named in four counts of a 61-count indictment on November 4, 2015. He was charged in Count 1 with conspiracy to possess with intent to distribute and distribution of heroin, in violation of 21 U.S.C. § 841(a)(1), 21 U.S.C. § 841(b)(1)(C), and 21 U.S.C. § 846; in Counts 23 and 24 with possession with intent to distribute heroin, in violation of 21 U.S.C. § 841(a)(1), 21 U.S.C. § 841(b)(1)(C); and in Count 56 with use of communication facility to facilitate a felony, in violation of 21 U.S.C. § 843(b), 21 U.S.C. § 843(d)(1). The total amount of heroin specifically attributed to Petitioner in the indictment was 45.49 grams.

         Petitioner pled guilty to all four counts. There was no plea agreement, but a document entitled “Trayshon Kimbrough Plea Notes” was entered as Court's Exhibit Number 1 at the change of plea hearing. (See Change of Plea Tr. at 6-7). Pages 2 and 3 of this exhibit are entitled “Factual Basis, ” and contain the Government's factual basis for the charges against Petitioner. Pertinent to Petitioner's motion to vacate, paragraph D of the exhibit states: “The amount of drugs possessed and distributed by Defendant during the course of the conspiracy and/or attributable to Defendant's actions and reasonably foreseeable within the conspiracy was at [sic] less than 100 grams of heroin. Defendant knew that the substances he was possessing and distributing were actually heroin.” Petitioner admitted that the factual basis set forth in the exhibit was true and accurate. (Id. at 7). Attorney Frank Gorczyca represented Petitioner through the change of plea stage of the proceedings.

         Attorney Thomas Shaughnessy represented Petitioner for the sentencing phase. Following Petitioner's plea, a Presentence Investigation Report (PSR) was prepared, which states: “According to the investigating agent, the amount of drugs possessed and distributed by the defendant during the course of the conspiracy and/or attributable to the defendant's actions and reasonably foreseeable within the conspiracy was at least 80 grams but less than 100 grams of heroin.” Attorney Shaughnessy filed a Sentencing Memorandum on behalf of Petitioner in which he asserted that “the amount attributable to [Petitioner's] actions and reasonably foreseeable within the conspiracy entered into by Defendant Kimbrough was less [sic] 80 grams.” He noted that the PSR identified four instances in which Petitioner was directly involved for a total of 45.49 grams. He acknowledged, however, that the United States Sentencing Commission Guidelines Manual provides:

With respect to offenses involving contraband (including controlled substances), the defendant is accountable for all contraband with which he was directly involved and, in the case of a jointly undertaken criminal activity, all reasonably foreseeable quantities of contraband that were within the scope of the criminal activity that he jointly undertook.

(Doc. 334, at 3).

         Based on the amounts set forth in the PSR (at least 80 grams but less than 100 grams of heroin), Petitioner's base offense level was 22. He was given a three-level reduction for acceptance of responsibility for a total offense level of 19.[1] Petitioner was sentenced at the lowest end of the sentencing range to a term of imprisonment of 63 months as to Counts 1, 23, and 24 and 48 months as to Count 56, all to run concurrently; three years supervised release as to Counts 1, 23, and 24 and one year supervised release as to Count 56, all to run concurrently; and a special assessment of $400. Petitioner did not file a notice of appeal with the Sixth Circuit. He now seeks relief pursuant to 28 U.S.C. § 2255. (Doc. 345). The government opposes Petitioner's motion.

         ANALYSIS

         A federal prisoner may challenge a sentence if it “was imposed in violation of the Constitution or laws of the United States ... or ... the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.” 28 U.S.C. § 2255. To prevail on a § 2255 motion, “the movant must allege as a basis for relief: (1) an error of constitutional magnitude; (2) a sentence imposed outside the statutory limits; or (3) an error of fact or law that was so fundamental as to render the entire proceeding invalid.” Mallett v. United States, 334 F.3d 491, 497 (6th Cir. 2003). The petitioner has the burden of “sustaining [his] contentions by a preponderance of the evidence.” Pough v. United States, 442 F.3d 959, 964 (6th Cir. 2006).

         Here, Petitioner argues that his sentence is unconstitutional because he received ineffective assistance of counsel. Specifically, he claims that Attorney Gorczyca was ineffective during the period leading up to the guilty plea because he “informed [Petitioner] that the language of less than 100 grams was the determinative factor in his final sentence as to the total drug amount...[and] that this discrepancy was minor and would be resolved at sentencing.” (Doc. 361, at 4). Petitioner claims that the correct amount he was responsible for was 45.49 grams, which would have yielded an offense level of 15 and Guidelines range of 41-51 months. He asserts that “there is no way that he would have pleaded guilty to 80 grams.” (Id.). Petitioner claims that Attorney Shaughnessy was ineffective for failing to raise the issue on appeal. (Id. at 2). Though Petitioner's brief is focused on his ineffective assistance of counsel claim, he also briefly argues that his “guilty plea [was]...unknowing and involuntary as to the drug amount of 80 grams but less than 100 grams.” (Doc. 361, at 5). Petitioner does not request an evidentiary hearing.

         A. Voluntary and ...


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