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Schavey v. United States

United States District Court, D. Utah

August 15, 2017

RAYMOND CHARLES SCHAVEY, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent. Criminal No. 2:16-CR-63 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 February 8, 2016, Petitioner was charged with being a felon in possession of a firearm and ammunition, possession of a stolen firearm, possession of methamphetamine, possession of unauthorized access devices, aggravated identity theft, and bank fraud. On August 22, 2016, Petitioner pleaded guilty to being a felon in possession of a firearm and aggravated identity theft.

         A Presentence Report was prepared prior to sentencing. The Presentence Report placed Petitioner's base offense level at ¶ 20 because Petitioner committed the offense after sustaining a felony conviction of a crime of violence.[1] Petitioner also received a four-level enhancement for possessing the firearm in connection with another felony offense.[2] After receiving an appropriate reduction for acceptance of responsibility, Petitioner had a total offense level of 23. With a criminal history category of VI, Petitioner faced a guideline range of 92 to 115 months. Petitioner's aggravated assault conviction carried a two-year term, which was required to run consecutively.[3]

         On December 5, 2016, Petitioner was sentenced to 101 months in the custody of the Bureau of Prisons. Judgment was entered on December 7, 2016. Petitioner did not file a direct appeal. Petitioner timely filed the instant Motion on May 8, 2017. After receiving the government's response, Petitioner filed a reply and a supplement on July 10, 2017.

         II. DISCUSSION

         Petitioner's Motion, as supplemented, raises five claims of ineffective assistance of counsel. First, Petitioner argues that his counsel was ineffective in failing to object to the four-level enhancement for possessing the firearm in connection with another felony offense. Second, Petitioner argues that counsel was ineffective in failing to contest Petitioner's base offense level. Third, Petitioner argues that counsel was ineffective in failing to argue for a lower sentence.[4]Fourth, Petitioner states that counsel was deficient in failing to challenge the evidence in his case. Finally, Petitioner argues that counsel was ineffective for failing to consult with him about the filing of an appeal.

         The Supreme Court has set forth a two-pronged test to guide the Court in making a determination of ineffective assistance of counsel. “To demonstrate 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.”[5] 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.”[6]

         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.[7] In addition, in evaluating counsel's performance, the focus is not on what is prudent or appropriate, but only what is constitutionally compelled.[8] 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.”[9]

         First, Petitioner argues that counsel was ineffective in failing to object to the four-level enhancement for possessing the firearm in connection with another felony offense. The Presentence Report contained the four-level enhancement and specifically noted that Petitioner possessed methamphetamine.

         Sentencing Guideline § 2K2.1(b)(6)(B) calls for a four-level enhancement if the defendant “used or possessed any firearm or ammunition in connection with another felony offense.” “Another felony offense” is defined as “any federal, state, or local offense, other than the explosive or firearms possession or trafficking offense, punishable by imprisonment for a term exceeding one year, regardless of whether a criminal charge was brought, or a conviction obtained.”[10]

         Petitioner argues that the enhancement was not properly applied because he did not plead guilty to possession of methamphetamine and was only charged with a misdemeanor. However, as stated, the enhancement applies “regardless of whether a criminal charge was brought, or a conviction obtained.” Thus, the fact that Petitioner was not charged with nor pleaded guilty to a felony charge is not dispositive. Petitioner also argues that simple possession is a misdemeanor, not a felony. Even accepting this as true, the enhancement was still properly applied. The Presentence Report makes clear that Petitioner possessed the firearm in connection with a host of other felony offenses, not just possession of methamphetamine. Thus, even if Petitioner's possession of methamphetamine was not a felony under federal or Utah law, counsel was not deficient in failing to object to this enhancement.

         Second, Petitioner argues that counsel was ineffective in failing to contest Petitioner's base offense level. As stated, the Presentence Report placed Petitioner's base offense level at ¶ 20 because Petitioner committed the offense after sustaining a felony conviction of a crime of violence.[11] Petitioner has a prior Nevada conviction for attempted robbery.[12] Such a conviction constitutes a crime of violence under the Guidelines.[13] Thus, counsel was not ineffective in failing to challenge Petitioner's base offense level.

         Petitioner also argues that his prior conviction of attempted robbery is too vague a crime to count as a crime of violence under the Sentencing Guidelines. Petitioner appears to be asserting a claim under Johnson v. United States.[14] The Supreme Court in Johnson invalidated the residual clause of the Armed Career Criminal Act (“ACCA”). The definition of a “crime of violence” under the Sentencing Guidelines in effect at the time of Petitioner's sentencing was similar to the offending definition of “violent felony” under the ACCA. However, the Supreme Court in Beckles v. United States held that the sentencing guidelines are not subject to vagueness challenges under the Due Process Clause.[15] Thus, Petitioner's vagueness argument fails.

         Third, Petitioner argues that his counsel was ineffective for failing to argue for a lesser sentence. Petitioner notes that his plea agreement contained an agreement that the government would recommend a sentence within the guideline range as determined by the Court. Petitioner argues that, had he received a lower offense level, he would have received a lesser sentence. Petitioner's argument is contingent on his other arguments, which the Court has rejected above. Petitioner's guideline range was correctly calculated. Therefore, counsel's performance was not deficient.

         Petitioner's fourth claim alleges that counsel was ineffective for failing to challenge the evidence in his case. Petitioner argues that counsel should have challenged Petitioner's detention and the admissibility of certain evidence. However, Petitioner fails to explain what evidence should have been challenged or how the outcome of ...


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