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Babcock v. United States

United States District Court, D. Utah

January 2, 2020



          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 27, 2017, Petitioner was charged in a Felony Information with possession of methamphetamine with intent to distribute and felon in possession of firearm and ammunition. On May 25, 2017, the prosecutor sent Petitioner's trial counsel an email explaining that he believed Petitioner's prior convictions made him a career offender under the United States Sentencing Guidelines (“USSG”), which would have resulted in a guideline range of 151 to 188 months if Petitioner pleaded guilty to the drug charge. However, the prosecutor acknowledged that Petitioner's previous convictions may not be counted as separate offenses under the Guidelines. If Petitioner were to plead to the firearm charge, the prosecutor believed the guideline range would be 110 to 137 months. The prosecutor went on to state that if the parties were unable to reach an agreement, he might be required to file an Information under 21 U.S.C. § 851, which would have required a minimum mandatory sentence.

         In response to this email, Plaintiff's trial counsel conducted his own research and looked in particular at whether Petitioner would qualify as a career offender. To do so, counsel obtained the dockets from the state court convictions. He also met with a supervisory United States Probation officer to confirm his analysis. Based upon that research, trial counsel believed that Petitioner would not qualify as a career offender because his prior convictions would not be counted separately.

         Trial counsel ultimately advised Petitioner that it was in his best interest to plead to the firearm charge. Doing so avoided the potential application of a § 851 enhancement. Petitioner followed his counsel's advice and pleaded guilty to being a felon in possession of firearm and ammunition on July 5, 2017.

         After his change of plea, a Presentence Report was prepared. The Presentence Report placed Petitioner's base offense level at ¶ 20 pursuant to USSG § 2K2.1(a)(4)(A). Relevant here, this provision calls for a base offense level of 20 if the defendant committed the instant offense subsequent to sustaining one felony conviction of a controlled substance offense. The Presentence Report also contained a four level enhancement under USSG § 2K2.1(b)(6)(B) because Petitioner possessed the firearm in connection with another felony offense.

         At sentencing, counsel objected to the four-level “in connection with” enhancement. However, counsel did not object to the base offense level. Counsel testified that he did not object to the base offense level because he believed Petitioner's prior convictions qualified as controlled substance offenses under the Guidelines.

         Petitioner was ultimately sentenced to 70 months in the custody of the Bureau of Prisons, a sentence at the low-end of the Guideline range. Judgment was entered on October 5, 2017.

         Counsel testified that, after sentencing, Petitioner expressed interest in filing an appeal. In response, counsel informed Petitioner that he had waived his right to appeal based upon the appeal waiver contained in his plea agreement. Despite this, counsel sought and received an extension of time to file an appeal so that he could determine whether there was anything Petitioner could appeal. Specifically, counsel looked to see whether there was a problem at the change of plea hearing. Counsel also looked at whether the prosecutor had somehow violated the plea agreement at sentencing. After doing this additional analysis, counsel once again advised Petitioner not to file an appeal. Petitioner accepted this advice and no appeal was filed.

         Petitioner, through counsel, timely filed the instant Motion on October 19, 2018. Petitioner raises two claims of ineffective assistance. First, Petitioner argues that his counsel was ineffective in failing to object to the base offense level contained in the Presentence Report. Second, Petitioner argues that counsel was ineffective for failing to file an appeal.

         The Court conducted an evidentiary hearing on the Motion on November 21, 2019. Thereafter, the Court received supplemental briefs from the parties.


         28 U.S.C. § 2255(a) provides,

A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

         Petitioner's claims are based on alleged ineffective assistance of counsel. 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, the defendant must generally show that counsel's performance fell below an objective standard of reasonableness, and that counsel's deficient performance was prejudicial.”[1] 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.”[2]

         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.[3] In addition, in evaluating counsel's performance, the focus is not on what is prudent or appropriate, but only what is constitutionally compelled.[4] Finally, “[t]here is a strong presumption that counsel provided effective assistance, and a section 2255 defendant has the burden of proof to overcome that presumption.”[5]


         Petitioner raises two claims of ineffective assistance, one dealing with sentencing and the other with failing to file an appeal. Each will be discussed in turn.


         Before reaching the merits of Petitioner's claims, the Court must address the government's argument that Petitioner's claims are procedurally barred. Under § 2255, Petitioner may not raise issues that could have been raised on direct appeal.[6] However, ineffective assistance of counsel claims may be raised for the first time in a collateral proceeding.[7] Indeed, “it is well established that ineffective assistance of counsel claims should generally be brought in collateral proceedings, not on direct criminal appeal.”[8] Therefore, Petitioner's ineffective assistance claims are not procedurally barred and can be reviewed on the merits.[9]

         Further, even if these claims were procedurally barred, Petitioner could overcome this procedural bar by demonstrating cause and prejudice. “A defendant may establish cause for his procedural default by showing that he received ineffective assistance of counsel in violation of the Sixth Amendment.”[10] The cause and prejudice analysis essentially collapses with Petitioner's ineffective assistance claims, which are addressed below.


         Petitioner first challenges counsel's failure to object to his base offense level. The Tenth Circuit has stated that “the failure to object to the legally erroneous imposition of an enhancement under the Sentencing Guidelines constitutes ineffective assistance.”[11] Therefore, to establish that his counsel was deficient, Petitioner must show that his base offense level was incorrectly calculated. To do so, he must establish that his prior convictions were “facially insufficient” to satisfy the definition of a controlled substance offense under the Sentencing Guidelines.[12]

         1. Offers to Sell

         Petitioner's base offense level was calculated to be a 20 pursuant to USSG § 2K2.1(a)(4)(A). Under this provision, a base offense level of 20 applies if the defendant committed the instant offense subsequent to sustaining one felony conviction of a controlled substance offense. A controlled substance offense has the same meaning as that term has in USSG § 4B1.2. Section 4B1.2(b) defines controlled substance offense as

an offense under federal or state law, punishable by imprisonment for a term exceeding one year, that prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance (or a counterfeit substance) or the possession of a controlled substance (or a counterfeit substance) with intent to manufacture, import, export, distribute, or dispense.[13]

         Application Note 1 provides that a controlled substance offense includes the offense of aiding and abetting, conspiring, and attempting to commit such an offense.[14] Use of the term “'includes' is not exhaustive.”[15]

         Petitioner has two 2005 convictions for distribution of a controlled substance in violation of Utah Code Ann. § 58-37-8(1)(a)(ii). Petitioner argues that this statute is not categorically a controlled substance offense, as defined by the Guidelines, and his base offense level should not have been enhanced based upon these convictions.

         Section 58-37-8(1)(a)(ii) makes it unlawful to knowingly and intentionally “distribute a controlled or counterfeit substance, or to agree, consent, offer, or arrange to distribute a controlled or counterfeit substance.” Because this statute includes an offer to distribute, Petitioner initially argued that it is broader than the definition contained in USSG § 4B1.2. In his Supplemental Memorandum, Petitioner now argues that the statute is overly broad in other ways. As will be discussed, Petitioner's new argument does not alter the Court's analysis.

         In two recent cases, the Tenth Circuit has examined statutes that included offers for sale and concluded that such statutes were broader than the definition of controlled substance offense contained in the Sentencing Guidelines. In United States v. Madkins, [16] the Tenth Circuit considered the Kansas Uniform Controlled Substance Act which prohibited, among other things, offers to sell.[17] The court held that “since an offer to sell is broader than distribution as defined in the Guidelines, [the defendant's] prior offenses are not controlled substance offenses for purposes of the [Guidelines].”[18] To support this conclusion, the court examined cases from the Fifth and Second Circuits, which both held that similar statutes that criminalized mere offers to sell were broader than the federal definition.[19]

         The Tenth Circuit reached the same result in United States v. McKibbon, [20] where it examined a Colorado statute. The Colorado statute prohibited the sale of controlled substances and defined sale to include an offer to sell.[21] Because that statute criminalized offers to sell a controlled substance and USSG § 4B1.2(b) does not, the state statute criminalized a broader range of conduct than the Guideline.[22] Therefore, the district court erred in enhancing the defendant's base offense level as a result of his prior Colorado conviction.

         The Fifth Circuit examined Utah Code Ann. § 58-37-8(1) in United States v. Duque-Hernandez, [23] an unpublished case from 2007. The court held that, since Utah's statute covered offers for sale, it was broader than the Sentencing Guidelines.[24]

         In his Declaration, prior counsel admits that, other than looking at the dockets, he did not further analyze whether Petitioner's prior offenses would qualify as controlled substance offenses and did not object to the base offense level because he believed it was properly calculated.[25] At the evidentiary hearing, counsel testified that he did not examine whether Petitioner's prior convictions were controlled substance offenses. Based upon this, Petitioner contends that his counsel's performance was deficient.

         The question presented is whether Utah Code Ann. § 58-37-8(1)(a)(ii) is broader than Guideline Section 4B1.2. Relying on Madkins and McKibbon, Petitioner asserts that it is, but these cases do not completely resolve the issue. Courts have held that state statutes that criminalize offers to sell do meet the Guideline definition because they have been interpreted to require something more than a mere offer, such as a showing of intent or overt acts furthering that intent.[26] This is based on Application Note 1 of USSG § 4B1.2, which provides that a controlled substance offense includes the attempt to commit such an offense. An attempt, in turn, requires both the intent to commit the crime and overt acts in furtherance of that intent.[27]Courts have held that “[a] bona fide offer comprises both the intent and substantial step necessary to constitute an attempted distribution of a controlled substance.”[28] Thus, where the state statute requires a bona fide offer, courts have held that the statute is categorically a controlled substance offense.

         The Tenth Circuit adopted this approach in McKibbon. It stated,

the Tenth Circuit has clearly held that § 4B1.2(b) does not include offers to sell controlled substances, unless the criminalized activity amounts to an attempt to distribute controlled substances. That means in essence that § 4B1.2(b) includes only bona fide offers to sell, because such activity can be considered an attempt to distribute. But § 4B1.2(b) does not include non-bona fide offers to sell because ‘offer' itself is not listed in § 4B1.2(b) and a non-bona fide offer cannot be considered an attempt to distribute.[29]

         The Tenth Circuit has not analyzed whether Utah Code Ann. § 58-37-8(1)(a)(ii) is limited to bona fide offers. However, the statute and case law suggest that it is. As stated, Utah's statute requires that any of the alternative means, including offers, be done knowingly and intentionally. Utah courts have construed this to mean that the state must prove that a defendant acted with the knowledge or intent that his actions would result in the distribution of a controlled substance and that any act in furtherance constitutes the criminal offense set forth in the statute.[30] The Utah Court of Appeals has specifically held that “[a] defendant who offers to sell drugs with no actual intent of following through is not guilty of the offense of arranging.”[31] For example,

Someone who says, “I could get you a ton of pot, ” but is only joking, is not guilty of offering to distribute a controlled substance under the statute. Similarly, someone who seems to imply a willingness to arrange a drug transaction, but only intends to pocket the proffered payment and walk off with it, is not guilty under the statute.[32]

         Thus, as interpreted by Utah courts, Utah law appears to require both the intent to distribute and an act in furtherance, which is found in the offer.[33]

         This makes this case distinguishable from Madkins and McKibbon. The Tenth Circuit in Madkins held that “because a person can offer a controlled substance for sale without having the intent to actually complete the sale, a conviction for an offer to sell can be broader than a conviction for an attempt to sell.”[34] In doing so, the court concluded that the Kansas statute, as applied by Kansas courts, included mere offers. In McKibbon, the Tenth Circuit examined Colorado case law and found nothing that would limit offers to bona fide offers, as it included fraudulent offers as well.[35]

         Petitioner makes three arguments in response. First, Petitioner argues that Utah courts have not limited § 58-37-8(1)(a)(ii) to bona fide offers because Utah case law does not require the offeror to have the ability to proceed with the sale. However, as set forth above, an attempt requires both intent and an overt act in furtherance of that intent. Utah case law, in turn, has defined § 58-37-8(1)(a)(ii) as requiring both the intent to distribute and an act committed in furtherance of that intent. Specifically, “the State must prove that the defendant acted with the knowledge or intent that his actions would result in the distribution of a controlled substance.”[36]A defendant's willingness and ability to proceed are demonstrated by that intent and the act(s) done in furtherance of that intent.

         Petitioner next argues, for the first time, that Utah's statute covers conduct that is even broader than offers to sell, bona fide or not. The statute makes it unlawful to “agree, consent, offer, or arrange to distribute a controlled or counterfeit substance.”[37] But this argument fails for essentially the same reason. Whatever means is used, “if [a defendant] intends the distribution for sale of a controlled substance, any act in furtherance of an arrangement therefor constitutes the criminal offense described by the statute.”[38] Thus, all of the alternative means set out in the statute require both an intent to distribute and an act taken in furtherance of that intent, bringing them into the definition of an attempt. Further, even if not attempts, these alternative means may nevertheless be controlled substance offenses. “[A] state offense is not removed from the ambit of the Guidelines' definition of ‘controlled substance offense' merely because it does not appear among the enumerated offenses.”[39]

         Relatedly, Petitioner argues that Utah law does not require that the acts taken in furtherance be substantial.

The “substantial step” required to establish an attempt must be something beyond mere preparation. It must be an act adapted to, approximating, and which in the ordinary and likely course of things will result in, the commission of the particular crime. A substantial step is an appreciable fragment of a crime and an action of such substantiality that, unless frustrated, the crime would have occurred. The step must be strongly corroborative of the firmness of the defendant's criminal intent ...

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