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Mangum v. United States

United States District Court, D. Utah

March 9, 2017

LARRY BRUCE MANGUM, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent. Criminal No. 2:12-CR-762 TS

          MEMORANDUM DECISION AND ORDER DENYING MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE BY A PERSON IN FEDERAL CUSTODY

          Ted Stewart United States District Judge.

         This matter is before the Court on Petitioner's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody. For the reasons discussed below, the Court will deny the Motion and dismiss this case.

         I. BACKGROUND

         On December 12, 2012, Petitioner was charged with two counts of being a felon in possession of a firearm and ammunition in violation of 18 U.S.C. § 922(g). Petitioner pleaded guilty to the second count of the Indictment on July 8, 2013.[1] The Presentence Report placed Petitioner's base offense level at ¶ 20 based on Petitioner's prior felony conviction of a crime of violence.[2] The Presentence Report also contained a four-level enhancement for possessing a firearm in connection with another felony offense. With a total offense level of 21 and a criminal history category of IV, Petitioner had a guideline range of 57 to 71 months.

         Petitioner's counsel objected to the inclusion of the four-level enhancement.[3] The government argued that the four-level enhancement should apply and that the Court should depart upward under United States Sentencing Guideline (“USSG”) § 4A1.3 because Petitioner's criminal history category substantially under-represented the seriousness of Petitioner's criminal history and the likelihood that he would reoffend.[4] The day prior to sentencing, Petitioner's counsel filed a Sentencing Memorandum, further clarifying the objection to the four-level enhancement.

         At sentencing, the Court overruled Petitioner's objection to the four-level enhancement and agreed that Petitioner's criminal history was under-represented. The Court applied a criminal history category of V, resulting in a guideline range of 70 to 87 months. After considering the factors set forth in 18 U.S.C. § 3553(a), the Court imposed a sentence of 87 months.

         Petitioner filed a direct appeal. On appeal, Petitioner argued that the Court erred in departing upward. The Tenth Circuit Court of Appeals affirmed Petitioner's sentence. Petitioner timely filed the instant Motion. Petitioner raises four arguments in his Motion. Petitioner argues that Congress lacked the authority to criminalize the possession of firearms by convicted felons. Petitioner also raises three claims of ineffective assistance of counsel.[5] In addition, Petitioner filed a Motion seeking to add a claim under Johnson v. United States. The Court will discuss each in turn.

         II. DISCUSSION

         A. COMMERCE CLAUSE

         Petitioner argues that Congress exceeded its authority by regulating the possession of firearms by convicted felons. Petitioner did not raise this argument during his underlying criminal case and did not raise it on direct appeal.

         The Supreme Court has ruled that because “a final judgment commands respect, ” it has “long and consistently affirmed that a collateral challenge may not do service for an appeal.”[6]Generally, a §2255 motion cannot be used to test the legality of matters which should have been raised on appeal.[7] If an issue is not raised on direct appeal, the defendant “is barred from raising the issue in a § 2255 proceeding, unless he establishes either cause excusing the procedural default and prejudice resulting from the error or a fundamental miscarriage of justice if the claim is not considered.”[8]

         Petitioner has failed to demonstrate cause, prejudice, or a fundamental miscarriage of justice. Petitioner argues that counsel's ineffectiveness in failing to raise this issue constitutes cause for his default. “[I]n order to satisfy the cause and prejudice standard, defendant must show not only that his counsel's representation fell below an objective standard of reasonableness, but also that there is a reasonable probability that but for the error, he would have prevailed.”[9] Petitioner has failed to make either showing. The Tenth Circuit has repeatedly rejected the argument that Congress lacked the power under the Commerce Clause to enact 18 U.S.C. § 922(g).[10] Thus, counsel was not ineffective in failing to raise a frivolous argument.[11]Even if counsel had made such an argument, that argument would not have prevailed as it is directly contrary to Tenth Circuit precedent. For substantially the same reasons, Petitioner has failed to show that failure to consider the claim would result in a fundamental miscarriage of justice. Therefore, Petitioner's claim must be dismissed.

         B. INEFFECTIVE ASSISTANCE OF COUNSEL

         Petitioner's Motion raises three claims for ineffective assistance of counsel. Petitioner argues that his counsel was ineffective for advising him to plead guilty, failing to timely object to a sentencing enhancement, and failing to obtain a plea agreement under Federal Rule of Criminal Procedure 11(c)(1)(C).

         The Supreme Court has set forth a two-pronged test to guide the Court in making a determination of ineffective assistance of counsel. “To determine ineffectiveness of counsel, [Petitioner] must generally show that counsel's performance fell below an objective standard of reasonableness, and that counsel's deficient performance was prejudicial.”[12] To establish prejudice, Petitioner “must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.”[13]

         A court is to review Petitioner's ineffective-assistance-of-counsel claim from the perspective of his counsel at the time he or she rendered the legal services, not in hindsight.[14] In addition, in evaluating counsel's performance, the focus is not on what is prudent or appropriate, but only what is constitutionally compelled.[15] Finally, there is “a strong presumption that counsel provided effective assistance, and a section 2255 defendant has the burden of proof to overcome that presumption.”[16]

         1.Guilty Plea

         Petitioner argues that his counsel was ineffective for advising him to plead guilty. Petitioner contends that the government had agreed not to seek a four-level enhancement under Sentencing Guideline § 2K2.1.[17] Petitioner provides nothing to support his assertion that the government agreed to forego the four-level enhancement and the evidence provided by the government directly refutes Petitioner's statement. The government has presented an email from the prosecutor to Petitioner's counsel prior to the entry of the plea wherein the prosecutor stated that, under the plea agreement, “[t]he parties make no agreements with respect to sentencing enhancements or recommendations.”[18] In addition, the government has presented a statement from Petitioner's counsel in which he states that the government never promised not to seek any particular sentencing enhancements and no such promise was conveyed to Petitioner. Moreover, there is nothing in the plea agreement that would support Petitioner's claim that the government agreed not to pursue certain sentencing enhancements. The only items agreed to by the government in the plea agreement were the dismissal of Count I and appropriate credit for acceptance of responsibility. At the change of plea hearing, Petitioner acknowledged that no other promises were made to him that were not contained in the plea agreement.[19] Petitioner's plea was entered into knowingly and voluntarily, and did not contain any agreement that the government would not seek the four-level enhancement under USSG § 2K2.1(b)(6)(B). Therefore, the Court must reject Petitioner's claim.

         2. Sentencing

         Petitioner next argues that counsel was ineffective in failing to file an objection to the Presentence Report based on the four-level enhancement and that the Court refused to consider such an objection. Petitioner argues that had counsel filed a timely objection, the objection more likely than not would have been sustained.

         Petitioner's argument rests on a false premise. Counsel did file an objection to the Presentence Report.[20] Counsel filed an objection two months prior to sentencing and filed a more detailed memorandum the day before sentencing.[21] Further, while the Court chastised counsel for the late filing, the Court nevertheless considered counsel's argument. The Court heard detailed arguments concerning the application of the enhancement at the sentencing hearing and ultimately overruled Petitioner's objection. Thus, counsel was not deficient and any deficiency in counsel's performance did ...


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