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United States v. Williams

United States District Court, S.D. Ohio, Western Division, Cincinnati

June 25, 2019


          Susan J. Dlott District Judge


          Michael R. Merz United States Magistrate Judge

         This is an action pursuant to 28 U.S.C. § 2255, originally brought pro se by Defendant (ECF No. 257), but litigated since shortly after filing with the assistance of appointed counsel, Attorney Lawrence Greger (ECF No. 263).

         An evidentiary hearing was held March 1, 2019, and has been transcribed (ECF No. 302). The parties have filed post-hearing briefs (ECF No. 303, 304, & 305) and the Motion to Vacate is ripe for decision.

         Litigation History

         On November 18, 2015, the grand jury for this District indicted Williams and seven others on one count of conspiring to distribute and possess with intent to distribute in excess of five kilograms of cocaine (Indictment, ECF No. 12, PageID 25). Magistrate Judge Stephanie K. Bowman appointed attorney Timothy McKenna to represent Williams the same day as the Indictment was filed (ECF No. 29). On April 5, 2016, Williams and McKenna signed a Plea Agreement, later executed by Assistant United States Attorney Karl Kadon (ECF No. 133, PageID 335). Under the agreement, Williams would plead guilty to Count One of the Indictment with a statutory penalty range of five to forty years[1]. Id. at PageID 327. The Agreement contains a waiver of appeal with certain exceptions and a standard integration clause. Id. at PageID 334-35, After the required Fed.R.Crim.P. 11 colloquy, Judge Dlott accepted Williams' guilty plea pursuant to the Agreement (Plea Transcript, ECF No. 244).

         On March 23, 2017, after considering the results of a pre-sentence investigation by the Probation Department, Judge Dlott sentenced Williams to 108 months imprisonment, a sentence at the bottom of the calculated Guideline range (Judgment, ECF No. 225, PageID 571). Williams appealed (Notice of Appeal, ECF No. 231), but the appeal was dismissed based on the appeal waiver. United States v. Williams, No. 17-3325, 2017 U.S. App. LEXIS 20006 (6th Cir. Oct. 12, 2017). Thereafter Williams timely filed the instant Motion to Vacate (ECF No. 257). He pleads the following ground for relief:

Ground One: Ineffective Assistance of Counsel at sentencing - failure to object to aggravating role enhancement under USSG Section 3B1.1(b).
Supporting Facts: The probation officer in this case recommended a 4-level aggravating role enhancement to my United States Sentencing Guidelines (“USSG”) offense level pursuant to USSG Section 3B1.1 (a), for being an organizer/leader of a criminal activity that involved five or more participants or was otherwise extensive. At sentencing, the court instead applied a 3-level aggravating role enhancement pursuant to USSG Section 3B1.1 (b), for being a manager or supervisor of a criminal activity that involved five or more participants or was otherwise extensive. My attorney provided me with ineffective assistance of counsel at sentencing, because he failed to object to the application of this enhancement. I was prejudiced by his deficient performance, because if he had properly objected and argued this issue, my guidelines range would have been lower, and there is a reasonable probability that I would have received a shorter sentence. . . .
Pursuant to USSG Section 3B1.1 (b), a defendant's offense level is increased by three levels if he “was a manager or supervisor (but not an organizer or leader) and the criminal activity involved five or more participants or was otherwise extensive.” To qualify for an enhancement under either Sections 3B1.1 (a) or 3B1.1(b), a defendant must have managed or supervised "one or more participants," and not merely the criminal scheme. See USSG Section 3B1 .1, cmt. 2; see also United States v. Gort-DiDonato, 109 F.3d 318, 321 (6th Cir. 1997). The United States Court of Appeals for the Sixth Circuit has "repeatedly held that in general, a defendant must have exerted control over at least one individual within a criminal organization for the enhancement of Section 381 .1 to be warranted." United States v. Salyers, 592 Fed.Appx. 483, 485 (6thCir. 2015) (internal quotations and citations omitted). The Sixth Circuit “derive[s] this ‘control' requirement from the commentary to Section 3B1.1, which lays out factors for sentencing courts to consider when applying the enhancement. These factors are: ‘the exercise of decision making authority, the nature of participation in the commission of the offense, the recruitment of accomplices, the claimed right to a larger share of the fruits of the crime, the degree of participation in planning or organizing the offense, the nature and scope of the illegal activity, and the degree of control and authority exercised over others.'” Id.
Although there were five or more “participants” in the criminal activity I was involved in, I did not exert control over any of them. Rather, I simply purchased cocaine from one individual, then resold it to several others. Just as the defendant in Salyers, to the extent that my customers resold the drugs I supplied, I had no say in that level of distribution. I did not recruit others to sell drugs for me, nor did I issue orders to any of my customers. I only “sold drugs to multiple individuals. [I] had no control over what they did with the drugs after the purchases.” United States v. Swanberg, 370 F.3d 622, 629 (6th Cir. 2004) [(alteration in original)].
At sentencing, the “court made none of the factual findings typical of [the Sixth Circuit's] Section 3B1.1 adjustment cases.” United States v. Christian, 804 F.3d 819, 825 (6th Cir. 2015). The factual findings in the presentence report (“PSR”) were adopted as the court's finding of fact. See Sentencing Transcript, pg. 3-4. However, the PSR's allegations regarding the application of a Section 3B1.1 enhancement, as well as my supposed “control” of participants, are vague and conclusory. For example, the PSR alleges that I “provided drugs to and controlled the activities of other individuals within the conspiracy.” However, no detail is given over what activities of the other individuals I controlled, or how I controlled them. The PSR goes on to allege that “five street level dealers were identified as being orchestrated and supplied by Daymond Williams.” PSR Paragraph 28. No. detail is given on how exactly I “orchestrated” these individuals. Instead, the rest of the PSR merely details the fact that I sold cocaine to these individuals, which they then re-sold. The PSR further alleges that “Daymond Williams controlled the flow of cocaine to his distributors and organized the conspiracy. Therefore, he is due a leadership adjustment.” PSR Paragraph 43. In the paragraphs specifically dealing with the adjustment under Section 3B1.1, the PSR alleges the following: “Adjustment for Role in the Offense: The defendant was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive; therefore, 4 levels are added. U.S.S.G. Section 3B1.1(a). Williams received orders from individuals and then would deliver large amounts of cocaine to his customers. Some of Williams' customers such as Jordan, Jones and Ratliff would then further distribute the cocaine to their customers. Williams controlled the flow of cocaine to others and organized the conspiracy. There are a total of seven individuals involved in this conspiracy not counting Williams. Of these seven individuals, Williams provided drugs to five of seven. Therefore, Williams is considered a leader and four levels are appropriately added.” PSR Paragraphs 54-55.
It appears that the probation officer relied on irrelevant factors to determine that I should receive an enhancement under Section 3B1.1. For example, it appears that she relied on the fact that I sold drugs to five of seven individuals in the conspiracy. While this may show that I played an essential role in the conspiracy, the Sixth Circuit has explained that “merely playing an essential role in the offense is not equivalent to exercising . . . control over other participants, ” which is what is required to impose an enhancement under Section 381.1. United States v. Wright, 747 F.3d 399, 412 (6thCir. 2014) (citation omitted). It also appears that the probation officer relied on the fact that I “controlled the flow of cocaine to others.” However, any seller can be considered to “control the flow” of whatever product they are selling. This does not mean that every seller controls his CUSTOMERS. Also, cocaine is not a participant, but is merely property. A court cannot base an adjustment on the control of property alone. See Christian, 804 F.3d at 824; United States v. Castilla-Lugo, 699 F.3d 454, 460 (6th Cir. 2012). Furthermore, although the probation officer alleged that I “organized the conspiracy, ” she did not explain how exactly I did so.
In conclusion, the manager/supervisor role enhancement was improperly applied, and my attorney provided me with constitutionally ineffective assistance of counsel at sentencing when he failed to object. An appropriate remedy would be to schedule a new sentencing hearing, at which my guidelines are re-calculated without the application of the enhancement.

(Motion, ECF No. 257, PageID 846, 855.[2])


         What Is at Issue in this Proceeding and What is Not

         In his Motion, as quoted above, Williams argues at length that he is not substantively subject to an enhancement under U.S.S.G. Guideline 3B1.1. In particular, he argues that he did not exercise “control” as that term is understood in the case law (ECF No. 257, PageID 855).

         Although the Motion was filed pro se, appointed counsel repeatedly adopts the same argument. Noting that the District Court adopted the pre-sentence report's statements of fact, counsel argues “[t]he facts contained in the initial and final pre-sentence reports at ¶ 55 are insufficient as a matter of law to support the enhancement (Defendant's Post Evidentiary Hearing Memorandum, (hereinafter “Def.'s Memo”) ECF No. 303, PageID 1571). Defendant asks the Magistrate Judge to recommend that the District Court “re-sentence the Defendant absent the enhancement. The government by failing to argue before the district court or presenting evidence to this [Magistrate Judge] court to meet its burden of proof that the enhancement applied, has waived the application of the enhancement upon re-sentencing.” Id. at PageID 1572. Defendant repeats this insufficient factual basis argument, “based on the factual misrepresentation of counsel that no disputed facts remained, ” id. at PageID 1576, and that “Defendant's unrebutted testimony at the evidentiary hearing demonstrates the §3B1.1 enhancement application to his case was error.” Id. at PageID 1577. Finally, through counsel, Defendant argues that “[t]he facts ‘adopted' by the court to support the enhancement are insufficient as a matter of law to apply the three point (sic) enhancement.” Id. at PageID 1578.

         Certainly, it is appropriate for counsel to argue, relative to the prejudice prong of Strickland v. Washington, 466 U.S. 668 (1984), that a trial court made an error which the trial attorney should have challenged. For that purpose, the argument that Williams is not subject to the enhancement as a matter of law is apt. However, Williams goes beyond that to ask the Magistrate Judge to recommend that he be re-sentenced “absent the enhancement.” Def, 's Memo, ECF No. 303, PageID 1572, 1583. But that relief is not available to Defendant in this proceeding. He did not plead that his sentence should be vacated because it was based on insufficient facts, but rather that it should be vacated because his attorney did not argue that there were insufficient facts.

         Of course, the § 2255 Motion was filed pro se and such pleadings are entitled to liberal construction. McNeil v. United States, 508 U.S. 106, 113 (1993); Estelle v. Gamble, 429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520-21 (1972). On its face, the § 2255 Motion as quoted above can be fairly construed to argue that there was an insufficient factual basis for the enhancement. However, counsel, after appointment, never moved to amend the § 2255 Motion to make that assertion.

         However, if counsel had moved to amend to add this claim, the Magistrate Judge would have denied the amendment. That is because the question whether there was a sufficient factual basis for the enhancement and whether Judge Dlott correctly adopted the findings in support of the enhancement is an issue that could have been raised on direct appeal because it is litigable on the basis of the appellate record. “It is well-established that a § 2255 Motion is not a substitute for a direct appea;[, ]” and failure to raise on direct appeal an issue which can be litigated in that proceedings constitutes a default on the issue. Ray v. United States, 721 F.3d 758, 761(6th Cir. 2013), quoting Regalado v. United States, 334 F.3d 520, 528 (6th Cir. 2003) citing United States v. Frady, 456 U.S. 152, 167-68 (1982). “[C]laims that could have been raised on direct appeal, but were not, will not be entertained via a motion under § 2255 unless the petitioner shows: (1) cause and actual prejudice to excuse his failure to raise the claims previously; or (2) that he is ‘actually innocent[.]'.” Id., citing Bousley v. United States, 523 U.S. 614, 622 (1998). Williams has not offered proof of cause and prejudice to excuse his failure to raise this issue on appeal, not has he offered any evidence of “actual innocence.”

         Of course, Williams could not have effectively raised this claim on direct appeal because he had waived his right to appeal, with exceptions not relevant here (Plea Agreement, ECF No. 133, PageID 334). The Sixth Circuit upheld that waiver in the face of his claim that to do so would constitute a manifest injustice. Williams, 2017 U.S. App. LEXIS 20006 at *2. Williams did not waive his right to relief under § 2255 because of the preference of the federal courts that ineffective assistance of trial counsel claims be litigated in that way. Massaro v. United States, 538 U.S. 500 (2003); Griffin v. United States, 330 F.3d 733, 737 (6th Cir. 2006). But the ability to litigate ineffective assistance of trial counsel claims in § 2255 proceedings does not open a gateway to litigate the merits of underlying claims which have been forfeited by omission from direct appeal proceedings.

         In sum, Williams is not entitled in this proceeding to a merits ruling on any factual insufficiency for enhancement claim. If the judgment is vacated and the case is set for resentencing, then Williams will then have an opportunity to present his arguments at that time, but the United States will also have an opportunity, which, contrary to Defendant's argument (Def's Memo., ECF No. 303, PageID 1572), they have not waived, to present evidence in support of the enhancement. The Magistrate Judge made an oral ruling to the same effect during the evidentiary hearing (Hrg. Tr., ECF No. 302, PageID 1458.)

         The Merits of Williams' Ineffective Assistance of ...

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