Bergin v. USA

Filing 18

OPINION AND ORDER dismissing as to grounds one and two and denied as to all other grounds re: 1 MOTION to Vacate, Set Aside or Correct Sentence (2255) Criminal Case No. 2:09-cr-75-FtM-29SPC. The Clerk of the Court shall enter judgment accordingly and close the civil file. A certificate of appealability (COA) and leave to appeal in forma pauperis are denied. Signed by Judge John E. Steele on 10/10/2014. (Attachments: # 1 Register of Actions)(SLU)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
JASON BERGIN,
Plaintiff,
v.

Case No. 2:13-CV-244-FtM-29CM
Case No. 2:09-CR-75-FTM-29SPC

UNITED STATES OF AMERICA,
Defendant.

OPINION AND ORDER
This matter comes before the Court on petitioner’s Motion
Under 28 U.S.C. Section 2255 to Vacate, Set Aside or Correct
Sentence by a Person in Federal Custody (Cv. Doc. #1; Cr. Doc.
#498) 1 and petitioner’s supporting memorandum (Cv. Doc. #2; Cr.
Doc. #499), both filed on March 29, 2013.
Response

in

Opposition

(Cv.

Doc.

#7)

The government filed a
on

May

22,

2013,

and

petitioner filed a Reply (Cv. Doc. #11) on September 12, 2013.
The Court granted petitioner’s Motion to add a new argument to one
of

the

issues

(Cv.

Doc.

#13),

and

the

government

filed

a

supplemental Response in Opposition (Cv. Doc. #15) on December 4,
2013.

1

Petitioner filed a Reply (Cv. Doc. #16) on December 19,

The Court will make references to the dockets in the instant
action and in the related criminal case throughout this opinion.
The Court will refer to the docket of the civil habeas case as
“Cv. Doc.”, and will refer to the docket of the underlying criminal
case as “Cr. Doc.”

2013.

For the reasons set forth below, the motion is dismissed

in part and denied in part.
I.
On September 16, 2009, a federal grand jury in Fort Myers,
Florida returned a two-count Indictment (Cr. Doc. #3) charging
Jason Bergin and others with Conspiracy to Possess with Intent to
Distribute Oxycodone, Methadone, and Alprazolam on and between
January, 2008 and July 28, 2009 (Count One) and Possession with
Intent to Distribute Oxycodone and Methadone on or about July 28,
2009 (Count Two).

Petitioner filed a Motion to Suppress Evidence

(Cr. Doc. #92), and after a hearing, the Magistrate Judge issued
a Report and Recommendation (Cr. Doc. #205) recommending denial.
On

August

6,

2010,

after

review

of

objections

filed,

the

undersigned issued a 54-page Opinion and Order (Cr. Doc. #300)
adopting

in

part

and

rejecting

in

part

the

Report

and

Recommendation and suppressed certain testimony.
Petitioner waived his right to a jury trial (Cr. Doc. #360)
and filed a Stipulation (Cr. Doc. #376) of facts.

The undersigned

found petitioner guilty of Count One on December 10, 2010, at a
bench trial based upon the stipulated facts, and the government
dismissed Count Two.

(Cr. Docs. ## 399, 430.)

On March 7, 2011,

the Court sentenced petitioner to a term of imprisonment of 180
months, followed by a term of three years supervised release.
Judgment was entered the following day.

- 2 -

(Cr. Doc. #433.)

Petitioner appealed, arguing the Court erred when it denied
his pretrial motion to suppress evidence.

The Eleventh Circuit

Court of Appeals affirmed petitioner’s conviction on January 12,
2012 (Cr. Doc. #484); United States v. Bergin, 455 F. App’x 908
(11th Cir. 2012).

After a petition for certiorari was denied by

the United States Supreme Court on April 16, 2012, Bergin v. United
States, 132 S. Ct. 1948 (2012), petitioner filed this timely §
2255 motion.
II.
Petitioner raises the following claims in his § 2255 motions:
(1) the sentencing court improperly considered a state court
conviction for domestic violence for which petitioner has filed a
timely post-conviction motion; (2) the sentencing court improperly
considered a state court conviction for gaming for which petitioner
has filed a timely post-conviction motion; (3) petitioner received
ineffective assistance of counsel because his attorney failed to
object to the drug weight relied upon by the court in determining
a base offense level of 34; (4)

petitioner received ineffective

assistance of counsel because his attorney failed to object to the
use of his gambling conviction in the computation of petitioner’s
criminal history; (5)

petitioner received ineffective assistance

of counsel because his attorney failed to seek a downward departure
based on petitioner’s diminished capacity; and (6) petitioner
received ineffective assistance of counsel because his attorney

- 3 -

failed

to

seek

a

downward

departure

based

on

United

States

Sentencing Manual (U.S.S.G.) Sections 5G1.3 and 5K2.23.
A. Grounds One and Two
Petitioner asserts that his sentence was improper because the
sentencing court considered a state court conviction for domestic
violence for which petitioner has filed a timely post-conviction
motion.

Petitioner’s Reply states that he is not actually raising

this as an issue, but simply providing the court with notice that
he will seek resentencing if his domestic violence conviction is
vacated.

(Cv. Doc. #11, p. 4.)

Petitioner asserts that under

Johnson v. United States, 544 U.S. 295 (2005) he will be entitled
to re-sentencing if the state court conviction is vacated.

In

Johnson, the Supreme Court held that the state court vacatur of a
predicate conviction is a new “fact” that forms the basis of a
challenge under 28 U.S.C. § 2255 and triggers a fresh one-year
statute

of

limitations

under

§

2255(f)(4),

so

long

as

the

petitioner exercised due diligence in seeking that order. Since
there is no claim actually being asserted, Ground One will be
dismissed.
Similarly, petitioner asserts that his sentence was improper
because the sentencing court considered a state court conviction
for gaming for which petitioner has filed a timely post-conviction
motion.

Again,

petitioner

does

not

assert

that

the

gaming

conviction has been vacated, only that re-sentencing will be

- 4 -

appropriate if that occurs.

Petitioner’s Reply states that he is

not actually raising this as an issue, but simply providing the
court with notice that he will seek resentencing if his gaming
conviction is vacated.

(Cv. Doc. #11, p. 4.)

Since there is no

claim being asserted, Ground Two is dismissed.
B. Evidentiary Hearing
A district court shall hold an evidentiary hearing on a habeas
petition “unless the motion and the files and records of the case
conclusively show that the prisoner is entitled to no relief. . .
.”

28 U.S.C. § 2255(b).

“[I]f the petitioner alleges facts that,

if true, would entitle him to relief, then the district court
should order an evidentiary hearing and rule on the merits of his
claim.”

Aron v. United States, 291 F.3d 708, 714-15 (11th Cir.

2002) (internal quotation marks and citation omitted).

However,

a “district court is not required to hold an evidentiary hearing
where the petitioner’s allegations are affirmatively contradicted
by the record, or the claims are patently frivolous.”

Id. at 715;

see also Gordon v. United States, 518 F.3d 1291, 1301 (11th Cir.
2008).

Here, even when the facts are viewed in the light most

favorable to petitioner, the record establishes that petitioner
received effective assistance of counsel in this case and no legal
error

was

committed.

Therefore,

the

Court

evidentiary hearing is not warranted in this case.

- 5 -

finds

that

an

C. Ineffective Assistance of Counsel Principles
The legal standard for ineffective assistance of counsel
claims in a habeas proceeding is well established.

To prevail on

a claim of ineffective assistance of counsel, a habeas petitioner
must demonstrate both that (1) counsel's performance was deficient
because it fell below an objective standard of reasonableness, and
(2) prejudice resulted because there is a reasonable probability
that,

but

for

the

deficient

performance,

proceeding would have been different.

the

result

of

the

Hinton v. Alabama, 134 S.

Ct. 1081, 1087-88 (2014) (citing Strickland v. Washington, 466
U.S. 668, 687, 694 (1984); Padilla v. Kentucky, 559 U.S. 356, 366
(2010)).
The

proper

measure

of

attorney

performance

is

simply

reasonableness under prevailing professional norms considering all
the

circumstances.

Id.

at

1088.

A

court

must

“judge

the

reasonableness of counsel’s conduct on the facts of the particular
case, viewed as of the time of counsel’s conduct.”

Roe v. Flores-

Ortega, 528 U.S. 470, 477 (2000) (quoting Strickland, 466 U.S. at
690).

This judicial scrutiny is highly deferential, and the Court

adheres to a strong presumption that counsel’s conduct falls within
the wide range of reasonable professional assistance. Strickland,
466

U.S.

at

689-90.

To

be

objectively

unreasonable,

the

performance must be such that no competent counsel would have taken
the action.

Rose v. McNeal, 634 F.3d 1224, 1241 (11th Cir. 2011);

- 6 -

Hall

v.

Thomas,

611

F.3d

1259,

1290

(11th

Cir.

2010).

Additionally, an attorney is not ineffective for failing to raise
or preserve a meritless issue.

Ladd v. Jones, 864 F.2d 108,

109-10 (11th Cir. 1989); United States v. Winfield, 960 F.2d 970,
974 (11th Cir. 1992).
To establish prejudice under Strickland, petitioner must show
more than that the error had “some conceivable effect on the
outcome of the proceeding.”

Marquard v. Sec'y for the Dep’t of

Corr., 429 F.3d 1278, 1305 (11th Cir. 2005) (quotation marks
omitted).
reasonable

Rather, the petitioner must show that there is a
probability

that,

but

for

counsel’s

unprofessional

errors, the result of the proceeding would have been different.
Hinton, 134 S. Ct. at 1089.

“A reasonable probability is a

probability sufficient to undermine confidence in the outcome.”
Id. (quoting Strickland, 466 U.S. at 694) (internal quotation marks
and citations omitted).
D. Specific Claims:
(1)

Ground Three: Petitioner asserts that he received

ineffective assistance of counsel because his attorney failed to
object to the weight of the drugs relied on by the sentencing court
in determining a base offense level of 34.

The Presentence Report

found petitioner was responsible for the equivalent of 7,149.82
kilograms of marijuana, which resulted in a base offense level of
34.

Petitioner argues that a large part of this drug amount was

- 7 -

attributable to conduct which pre-dated the charged conspiracy
dates of January, 2008 through July 28, 2009, and these preconspiracy transactions should not have been used to compute the
drug weight attributed to petitioner.

Petitioner also asserts

that he was incarcerated for approximately six months during the
conspiracy, but notwithstanding his inability to participate in
the conspiracy during this time his attorney failed to seek a
reduction of the drug weight for that period.

These failures,

petitioner asserts, constituted ineffective assistance of counsel.
A member of a drug conspiracy is liable for his own acts and
the acts of others in furtherance of the activity that he agreed
to undertake and that are reasonably foreseeable in connection
with that activity. United States v. Ismond, 993 F.2d 1498, 1499
(11th Cir. 1993).

When calculating drug quantities, if the amount

seized does not reflect the entirety of the offense, the sentencing
court must find the total drug quantity by estimating. United
States v. Frazier, 89 F.3d 1501, 1506 (11th Cir. 1996); United
States v. Duncan, 400 F.3d 1297, 1304 (11th Cir. 2005).

The

court's approximation may not be “merely speculative,” but must be
a “fair, accurate, and conservative estimate[ ]” of the quantity
based on evidence presented at trial, at the sentencing hearing,
or included as undisputed facts in the presentence investigation
report.

United States v. Zapata, 139 F.3d 1355, 1359 (11th Cir.

1998).

- 8 -

“To

determine

the

quantity

of

drugs

attributable

to

a

defendant for sentencing purposes, the district court must first
make individualized findings concerning the scope of criminal
activity undertaken by the defendant.”
F.3d 1084, 1087 (11th Cir. 1994).

United States v. Bush, 28

This requires a determination

as to “the scope of the specific conduct and objectives embraced
by

the

defendant's

agreement”

to

U.S.S.G. § 1B1.3 cmt. n.2 (2010).

participate

in

the

scheme.

“The court is then to determine

the quantity of drugs reasonably foreseeable in connection with
that

level

of

accountable

participation.”

for

Id.

co-conspirator

A

conduct

defendant

that

was

is

only

reasonably

foreseeable and within the scope of the criminal activity that the
defendants agreed to undertake.

United States v. Westry, 524 F.3d

1198, 1219 (11th Cir. 2008).
Count One of the Indictment alleged the conspiracy was “[f]rom
on or between January, 2008 and July 28, 2009”.

(Cr. Doc. #3.)

Petitioner filed a trial Stipulation (Cr. Doc. #376) which, as he
acknowledged in open court, he had read and signed after discussing
its

contents

with

his

attorney,

and

understood

that

he

was

stipulating to sufficient facts that would allow the Court to find
him guilty of Count One.

(Cr. Doc. #380, pp. 4-6.)

In the

Stipulation, petitioner agreed that “[o]n or between January 2007
and

July

distribute

28,
a

2009”

he

quantity

conspired
or

to

substance

- 9 -

possess

with

containing

intent

to

Oxycodone,

Methadone, and Alprazolam, in the Middle District of Florida, in
Lee and Collier County.”

(Cr. Doc. #376, p. 1.)

Petitioner

stipulated that, beginning in early 2007, he and his wife created
fraudulent prescriptions, went to local pharmacies weekly to have
them filled, and then sold the pills.

Id.

Petitioner and his

wife devised a plan to use runners to purchase the fraudulent
prescriptions in exchange for pills and cash.

Petitioner and his

wife created the fraudulent prescriptions, provided them to the
runners,

drove

the

runners

to

the

pharmacies

to

have

the

prescriptions filled, and usually paid for the prescriptions.
Id., pp. 1-2.

Petitioner and his wife would give the runners

about 15% of the pills in exchange for passing the fraudulent
prescriptions.

The Stipulation estimated petitioner and his wife

were able to pass between 50-60 fraudulent prescriptions per month,
and that “[t]housands of Oxycodone, Methadone and Alprazolam pills
were obtained via fraudulent prescriptions as a result of this
conspiracy.”
The

Id. at p. 2.

trial

court

found

beyond

a

reasonable

doubt

that

petitioner had conspired between January, 2007 and July 28, 2009,
to possess with intent to distribute Oxycodone, Methadone, and
Alprazolam; that petitioner knew the identity of each substance,
and knew that they were being obtained by fraudulent prescriptions;
that petitioner knew and agreed to distribute the substances, and
provided a portion to each of the runners for the transactions the

- 10 -

runners were involved in; that all of the participants knew the
unlawful purpose of the plan and willfully joined in the plan; and
that the object of the plan was to obtain possession of the
controlled substances with the intent to distribute them.

(Cr.

Doc. #399.)
Given this record, there was simply no basis for defense
counsel

to

object

petitioner.
organizers

to

the

Petitioner
of

the

quantity

and

conspiracy,

his

of

wife

knew

drugs
were

the

attributed

the

entire

leaders

scope

and

to
and
the

activities of the various runners, were involved in or reasonably
foresaw

all

the

transactions,

and

profited

from

them.

The

quantities set forth in the Presentence Report are conservative
estimates amply supported by the evidence.

(Presentence Report,

¶ 51.)
Pursuant to the Stipulation, the 2007 transactions did not
pre-date the conspiracy, but were part of the actual conspiracy
which petitioner admitted.

In any event, the pre-January 2008,

conduct was clearly relevant conduct for which petitioner was
properly held accountable.

“The Guidelines Manual provides that

types and quantities of drugs not specified in the count of the
conviction are to be included, as relevant conduct, in determining
the offense level if they were part of the same course of conduct
or part of a common scheme or plan as the count of conviction.”
U.S.S.G.

§

1B1.3(a)(2),

cmt.

n.9

- 11 -

(Nov.

2011).

We

broadly

interpret

the

provisions

of

the

relevant

conduct

guideline.

United States v. Behr, 93 F.3d 764, 765 (11th Cir. 1996).”

United

States v. Hung Thien Ly, 543 F. App’x 944, 947-48 (11th Cir. 2013).
The 2007 transactions were clearly “part of the same course of
conduct or part of a common scheme or plan as the count of
conviction”, as petitioner’s Stipulation verifies.
Petitioner is also incorrect in his asserting that being in
jail means a person is not part of the conspiracy and cannot be
held accountable for drug transactions during that time period.
As the Presentence Report stated, during periods when petitioner
was in custody, petitioner’s wife carried on their controlled
substance scheme.

Petitioner did nothing to withdraw from the

conspiracy while in jail, and continued with the drug activities
after his release.

Thus, there was no basis for defense counsel

to seek a departure because petitioner had previously been in jail
for substantive drug offenses.
Petitioner has shown neither deficient performance by his
attorney

nor

resulting

prejudice.

Petitioner’s

claims

of

ineffective assistance of counsel are without merit as to Ground
Three.
(2)

Ground Four:

Petitioner asserts he received ineffective

assistance of counsel because his attorney failed to object to the
assessment of one criminal history point for his misdemeanor
“gaming” conviction in the computation of petitioner’s criminal

- 12 -

history.

Petitioner argues that, under U.S.S.G. § 4A1.2(c), any

gambling offense, regardless of nomenclature, is never counted.
Since petitioner’s “gaming” conviction was a “gambling” offense,
petitioner asserts he should not have received a criminal history
point.

The lack of this point would have resulted in a Criminal

History Category of I instead of II, and a Sentencing Guidelines
range 20 months lower than that otherwise calculated.

Counsel’s

failure to object, petitioner asserts, constituted ineffective
assistance.
The Sentencing Guidelines provide that, with two exceptions,
“[s]entences

for

misdemeanor

and

petty

offenses

are

counted”

toward a defendant's criminal history score.

U.S.S.G. § 4A1.2(c)

(2010).

exception,

Under

the

allegedly

relevant

certain

enumerated offenses and “offenses similar to them” are to be
disregarded unless “(A) the sentence was a term of probation of
more than one year or a term of imprisonment of at least thirty
days, or (B) the prior offense was similar to an instant offense.”
U.S.S.G. § 4A1.2(c)(1) (2010).

Among those offenses specifically

listed in § 4A1.2(c)(1), is the offense of “gambling”.

Id.

Petitioner contends that his “gaming” conviction is “gambling” or
at least an offense similar to gambling, and therefore should not
have been counted.
Petitioner is incorrect in asserting that he was convicted of
“gaming.”

The Presentence Report simply states he was convicted

- 13 -

of a misdemeanor, and there was no issue raised as to what
misdemeanor.

As

the

attached

Clark

County

Court

Records

establish, the gaming counts were dismissed and petitioner was
convicted of the misdemeanor “theft”.
It

remains

to

be

determined

See Attached.
whether

this

“theft”

is

sufficiently similar to gambling that it should not have been
assessed a criminal history point.

In making this determination,

a court is directed to “use a common sense approach that includes
consideration of relevant factors such as (i) a comparison of
punishments imposed for the listed and unlisted offenses; (ii) the
perceived seriousness of the offense as indicated by the level of
punishment; (iii) the elements of the offense; (iv) the level of
culpability involved; and (v) the degree to which the commission
of

the

offense

conduct.”

indicates

a

likelihood

of

recurring

U.S.S.G. § 4A1.2, cmt. n.12 (2010).

criminal

This requires the

court to consider the facts underlying petitioner’s conviction.
United States v. Garcia-Sandobal, 703 F.3d 1278 (11th Cir. 2013).
The Presentence Report states that petitioner was charged
with several offenses in 2001 in Las Vegas, Nevada.

As relevant

to this issue, petitioner was charged with “Conspiracy to Commit
Fraudulent Acts – Gaming”, and pled guilty on September 9, 2002 to
a

“misdemeanor,

sentenced

to

(Presentence Report, ¶ 62.)

credit

for

jail

time

served.”

The Presentence Report does not

identify the misdemeanor, but states that the Criminal Complaint

- 14 -

in the case stated that petitioner was employed as a Boxman at the
Venetian Casino Resort, and conspired with Richard Fisher to commit
unlawful gaming acts at the Venetian Casino Resort.

While playing

craps, Fisher placed a wager without calling the bet, and after
the dice had landed Bergin called the wager consistent with a
winning hand.

Bergin was ordered to pay $7,500 restitution as

part of his sentence.

(Presentence Report, ¶ 62.)

The facts set forth in the Presentence Report, to which no
objection has ever been made, show that the conduct was in fact
theft – a scheme to defraud a gambling establishment of money.
This is not similar at all to gambling.
misdemeanor

conviction

was

neither

Because petitioner’s

gambling

nor

similar

to

gambling, § 4A1.2(c) does not preclude a criminal history point
from being assessed for the conviction.

Therefore, no ineffective

assistance of counsel occurred in failing to object to such an
assessment.
(3)

Ground Five:

assistance

of

counsel

downward

departure

pursuant

to

Petitioner asserts he received ineffective
because

based

U.S.S.G.

§

on

his

attorney

petitioner’s

5K2.13.

failed

to

diminished

Petitioner

argues

seek

a

capacity
that

his

psychiatric history is set forth in the Presentence Report, and
that no competent counsel would have failed to seek a downward
departure based upon diminished capacity.
asserts

that

counsel

made

no

Petitioner further

investigation

- 15 -

concerning

his

diminished

capacity

assistance.

and

did

not

seek

expert

psychiatric

Petitioner states that he is not arguing that he was

incompetent, only that there was a basis for a downward departure
motion based upon diminished capacity.
Under U.S.S.G. Section 5K2.13, “[a] downward departure may be
warranted

if

(1)

the

defendant

committed

the

offense

while

suffering from a significantly reduced mental capacity; and (2)
the

significantly

reduced

mental

capacity

substantially to the commission of the offense.”
5K2.13 (2010).
not

depart

The provision continues:

below

the

applicable

contributed
U.S.S.G. §

“However, the court may

guideline

range

if

(1)

the

significantly reduced mental capacity was caused by the voluntary
use of drugs or other intoxicants; (2) the facts and circumstances
of the defendant's offense indicate a need to protect the public
because the offense involved actual violence or a serious threat
of violence; (3) the defendant's criminal history indicates a need
to incarcerate the defendant to protect the public; or (4) the
defendant has been convicted of an offense under chapter 71, 109A,
110,

or

117,

of

title

18,

United

States

Code.”

Id.

The

Application Note to Section 5K2.13 provides that for purposes of
this policy statement, “[s]ignificantly reduced mental capacity”
means “the defendant, although convicted, has a significantly
impaired ability to (A) understand the wrongfulness of the behavior
comprising the offense or to exercise the power of reason; or (B)

- 16 -

control behavior that the defendant knows is wrongful.”

U.S.S.G.

§ 5K2.13 cmt. n.1 (2010).
The Presentence Report states that petitioner reported having
attention

problems

during

his

early

school

years,

having

behavioral problems, and being diagnosed with bipolar disorder as
a teenager.

Petitioner reported he stopped taking the medication

prescribed for him.

(Presentence Report, ¶ 83.)

Petitioner

reported drinking alcohol since the age of twelve, first trying
marijuana at age 14, and continuing daily use of marijuana until
his arrest in this case.

(Id., ¶ 86.)

Petitioner reported using

cocaine in his teens, and being placed in a drug treatment program
by his parents because of drug and behavior problems.

(Id.)

Petitioner left home at age 18 and lost contact with his family
due to his drug use.

(Id., ¶ 75.)

Petitioner reported using

crack cocaine, amphetamine, methamphetamine, heroin, and ecstasy
in his thirties.
hospital

(Id., ¶ 87.)

emergency

(Id., ¶ 80.)

room

twice

Petitioner reported visiting a
for

accidental

drug

overdoses.

Petitioner was committed pursuant to the Baker Act

for one day in 2004 after he drank too much, and was diagnosed
with

alcohol

abuse

and

marijuana

abuse.

(Id.,

¶¶

85,

88.)

Petitioner reported he became addicted to various pain killers in
2004, which he used until his withdrawal due to his arrest in this
case.

(Id.,

¶¶

89-90.)

While

incarcerated

in

this

case

petitioner tested positive for Hepatitis B, but otherwise reported

- 17 -

mostly good health, and received medication for bipolor disorder.
(Id., ¶¶ 81-82.)
It is clear that a reasonably competent attorney would not
believe petitioner to be entitled to a downward departure due to
diminished mental capacity.

Nothing suggests petitioner came

within the definition of “significantly reduced mental capacity.”
The record establishes that petitioner understood what he was doing
when he committed the instant drug offense, and that he knew it
was wrong, and that he had the ability to organize and lead a
scheme create and pass fraudulent prescriptions with the help of
others.

Petitioner’s

primary

issue

was

his

long-standing

voluntary drug use, not mental health issues, which is not a basis
for a diminished capacity departure.

There was no ineffective

assistance of counsel in failing to further investigate, obtain an
expert, or seek a diminished capacity departure.
(6) Ground Six:
assistance

of

counsel

Petitioner asserts he received ineffective
because

his

attorney

failed

to

seek

a

downward departure based on U.S.S.G. § 5G1.3, which allows a court
to impose a concurrent sentence with a prior undischarged term of
imprisonment.

Petitioner

asserts

that

he

was

serving

two

concurrent one-year terms in state court on drug convictions which
were part of the conspiracy in the federal case.

Based on this,

petitioner asserts his attorney should have requested a downward
departure or adjustment of the sentence, and should have sought

- 18 -

credit for the one year in state custody toward the federal
sentence

or

a

reduction

because

credit

was

not

available.

Petitioner also asserts his attorney should have requested a
downward departure pursuant to U.S.S.G. § 5K2.23.
Section 5G1.3 of the Sentencing Guidelines provides:
(a) If the instant offense was committed while
the
defendant
was
serving
a
term
of
imprisonment
(including
work
release,
furlough,
or
escape
status)
or
after
sentencing for, but before commencing service
of, such term of imprisonment, the sentence
for the instant offense shall be imposed to
run consecutively to the undischarged term of
imprisonment.
(b) If subsection (a) does not apply, and a
term of imprisonment resulted from another
offense that is relevant conduct to the
instant offense of conviction under the
provisions of subsections (a)(1), (a)(2), or
(a)(3) of § 1B1.3 (Relevant Conduct) and that
was the basis for an increase in the offense
level for the instant offense under Chapter
Two (Offense Conduct) or Chapter Three
(Adjustments), the sentence for the instant
offense shall be imposed as follows:
(1) the court shall adjust the sentence
for any period of imprisonment already
served on the undischarged term of
imprisonment if the court determines that
such period of imprisonment will not be
credited to the federal sentence by the
Bureau of Prisons; and
(2) the sentence for the instant offense
shall be imposed to run concurrently to
the remainder of the undischarged term of
imprisonment.
(c) (Policy Statement) In any other case
involving
an
undischarged
term
of
imprisonment, the sentence for the instant
offense may be imposed to run concurrently,

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partially concurrently, or consecutively to
the prior undischarged term of imprisonment to
achieve a reasonable punishment for the
instant offense.
U.S.S.G.

§

5G1.3

(2010).

Section

5K2.23

of

the

Sentencing

Guidelines provides:
A downward departure may be appropriate if the
defendant (1) has completed serving a term of
imprisonment; and (2) subsection (b) of §
5G1.3 (Imposition of a Sentence on a Defendant
Subject to Undischarged Term of Imprisonment)
would have provided an adjustment had that
completed
term
of
imprisonment
been
undischarged at the time of sentencing for the
instant offense. Any such departure should be
fashioned to achieve a reasonable punishment
for the instant offense.
U.S.S.G. § 5K2.23 (2010).
The Presentence Report reflects that petitioner was charged
with seven counts of Obtaining a Controlled Substance by Fraud in
one state court case, and charged with one count of Obtaining a
Controlled

Substance

by

Fraud

(Presentence Report, ¶¶ 65, 66.)

in

a

second

state

case.

Petitioner pled guilty to both

cases on May 13, 2008, and received concurrent probation sentences.
Id.

Petitioner was charged with violation of probation in both

cases, and on January 20, 2009 pled guilty and was placed on two
years of drug probation.

Petitioner was thereafter again charged

with violation of probation in both cases, and on August 31, 2009,
pled guilty and was sentenced to 364 days in jail concurrent in
both cases.
2009.

Id.

Petitioner was released from jail on November 13,
Petitioner did not receive criminal history points for

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either of these sets of convictions because the first case was
considered relevant conduct and the second case was part of the
offense conduct.
March 8, 2011.

Petitioner’s federal sentence was imposed on

(Cr. Doc. #433.)

Neither of these Sentencing Guidelines provisions applied to
this case.

Section 5G1.3(b) does not apply because, while the two

state cases were relevant conduct or part of the instant offense,
neither were the basis for an increase in the offense level.
points

were

Presentence

added
Report

for

either

calculated

set
the

of

convictions

criminal

when

history.

No
the

Section

5K2.23 did not apply because §5G1.3(b) would not have provided an
adjustment.
these

Therefore, the failure to seek a departure based on

provision

did

not

constitute

ineffective

assistance

of

counsel.
Accordingly, it is hereby
ORDERED AND ADJUDGED:
1.

Petitioner’s Motion Under 28 U.S.C. Section 2255 to

Vacate, Set Aside or Correct Sentence by a Person in Federal
Custody (Cv. Docs. ## 1-2; Cr. Docs. ## 498-499) is DISMISSED AS
TO GROUNDS ONE AND TWO AND DENIED AS TO ALL OTHER GROUNDS.
2.

The Clerk of the Court shall enter judgment accordingly

and close the civil file.

The Clerk is further directed to place

a copy of the civil Judgment in the criminal file.
IT IS FURTHER ORDERED:

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A CERTIFICATE OF APPEALABILITY (COA) AND LEAVE TO APPEAL IN
FORMA PAUPERIS ARE DENIED.

A prisoner seeking a writ of habeas

corpus has no absolute entitlement to appeal a district court’s
denial of his petition.

28 U.S.C. § 2253(c)(1); Harbison v. Bell,

556 U.S. 180, 183 (2009).

“A [COA] may issue . . . only if the

applicant has made a substantial showing of the denial of a
constitutional right.”
showing,

Petitioner

28 U.S.C. § 2253(c)(2).

“must

demonstrate

that

To make such a

reasonable

jurists

would find the district court’s assessment of the constitutional
claims debatable or wrong,” Tennard v. Dretke, 542 U.S. 274, 282
(2004), or that “the issues presented were adequate to deserve
encouragement to proceed further,” Miller-El v. Cockrell, 537 U.S.
322, 336 (2003)(citations and internal quotation marks omitted).
Petitioner

has

not

made

the

requisite

showing

in

these

circumstances.
Finally, because Petitioner is not entitled to a certificate
of appealability, he is not entitled to appeal in forma pauperis.
DONE and ORDERED at Fort Myers, Florida, this
of October, 2014.

Copies:
Counsel of Record
Petitioner

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10th

day