Stringer v. USA
Filing
5
AMENDED ORDER DENYING PETITION TO VACATE, SET ASIDE, OR CORRECT SENTENCE UNDER U.S.C. § 2255 1 ; 2 as to Michael Stringer - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 8/3/11. (emt, )CERTIFICATE OF SERVICEPart icipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Michael Stringer served by first class mail at the address of record on August 3, 2011.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
UNITED STATES OF AMERICA,
)
)
Plaintiff,
)
)
vs.
)
)
MICHAEL STRINGER,
)
)
Defendant.
)
_____________________________ )
Crim. No. 09-0320 SOM
Civ. No. 11-00317 SOM/RLP
AMENDED ORDER DENYING PETITION
TO VACATE, SET ASIDE, OR
CORRECT SENTENCE UNDER 28
U.S.C. § 2255
AMENDED ORDER DENYING PETITION TO VACATE, SET ASIDE,
OR CORRECT SENTENCE UNDER 28 U.S.C. § 2255
I.
INTRODUCTION AND BACKGROUND.
On January 7, 2010, pursuant to a plea agreement,
Defendant Michael Stringer pled guilty to Counts 1 and 36 of the
indictment.
See ECF Nos. 20, 21.
Count 1 charged Stringer with
a scheme to defraud the State of Hawaii, Department of Taxation,
by means of wire communications in violation of 18 U.S.C. § 1343.
Count 36 charged Stringer with aggravated identity theft in
violation of 18 U.S.C. § 1028A.
See ECF No. 2.
Stringer pled guilty before a Magistrate Judge, who
issued a Report and Recommendation Concerning Plea of Guilty the
same day.
See ECF No. 21.
accepted the plea of guilty.
On January 27, 2010, this court
See ECF No. 23.
On October 25, 2010, the parties stipulated that “the
total loss for purposes of United States Sentencing Commission
Guideline calculations . . . [was] $2,495,670.”
See ECF No. 36.
A Presentence Investigation Report (“PSR”) was prepared
to aid the court in sentencing Stringer.
Addendum Number 3 to
the PSR indicates that the United States Sentencing Commission
Guidelines Manual effective November 1, 2010, was used in
calculating Stringer’s advisory guideline range.
The same
addendum indicates that, with respect to Count 1, the base
offense level for wire fraud in violation of § 1343 was 7.
Given
the sentencing stipulation that the amount of loss was
$2,495,670, the PSR recommended increasing the offense level by
16.
Because there were 24 victims, the PSR recommended further
increasing the level by 2.
The PSR also recommended a 2-level
decrease for acceptance of responsibility under United States
Sentencing Commission Guidelines Manual § 3E1.1(a) and a 1-level
decrease under § 3E1.1(b) for assisting authorities in the
investigation or prosecution of his own misconduct by timely
notifying the Government of his intention to enter a plea of
guilty.
22.
These adjustments resulted in a Total Offense Level of
See ECF No. 41.
The PSR detailed Stringer’s lengthy criminal history,
listing criminal history points as follows:
¶ 49--1 point for an August 1999 conviction
for criminal recklessness for which Stringer
received a custody sentence of 19 days;
¶ 50--1 point for a March 2001 conviction for
battery for which Stringer received a custody
sentence of 365 days with 365 days suspended;
2
¶ 51--2 points for an October 2001 conviction
for theft for which Stringer received a
custody sentence of 545 days with 455 days
suspended;
¶ 52--1 point for an October 2003 conviction
for driving with a suspended license for
which Stringer received a custody sentence of
365 days in jail withe 351 days suspended;
¶ 53--2 points for an October 2004 conviction
for battery for which Stringer received a
custody sentence of 180 days with 166 days
suspended;
¶ 54--2 points for a December 2004 conviction
for theft for which Stringer received a
custody sentence of 545 days with 365 days
suspended; and
¶ 55--1 point for an April 2006 conviction
for identity fraud for which Stringer
received a sentence of 5 years of probation.
Because Stringer was on probation at the time he committed the
crimes charged in the indictment, the PSR recommended adding 2
criminal history points pursuant to § 4A1.1(d) of the United
States Sentencing Commission Guidelines Manual.
This meant that
the PSR was recommending 12 criminal history points,
corresponding to a Criminal History Category of V.
See ECF No.
41.
Given a Total Offense Level of 22 and a Criminal
History Category of V, the guideline range stated in the PSR for
Count 1 was 77 to 96 months.
See ECF No. 41, Addendum No. 3.
With respect to Count 36 of the indictment, the
violation of § 1028A, the PSR determined that “the guideline
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sentence is the term of imprisonment required by statute, to run
consecutively to any other sentence imposed.”
¶ 29.
See ECF No. 41
The PSR noted that the mandatory statutory sentence was
two years for that count.
Id. ¶ 88.
On November 15, 2010, the court adopted the PSR as the
court’s findings.
See Transcript of Proceedings at 3, Nov. 15,
2010, ECF No. 48.
The court sentenced Stringer to 72 months in
custody for Count 1, which was below the advisory guideline range
of 77 to 96 months.
The court then sentenced Stringer to 24
months in custody for Count 36, with the sentence to run
consecutively to the 72-month sentence for Count 1.
Id. at 18.
The court sentenced Stringer to supervised release of 3 years for
Count 1 and 1 year for Count 36, with those terms running
concurrently.
Id.
The court did not impose a fine, but did
order $1,072,977 in restitution and $200 in special assessments.
Id.
The court then dismissed Counts 2 through 35 of the
indictment.
Id. at 19.
In sentencing Stringer, the court,
having considered numerous factors, determined that a total of
eight years of imprisonment was an appropriate sentence.
Id. at
17.
On May 16, 2011, Stringer filed the present § 2255
petition, claiming that his counsel had been ineffective.
Challenges made in a § 2255 petition based on ineffective
assistance of counsel are specifically allowed pursuant to
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¶ 14(a) of Stringer’s Memorandum of Plea Agreement.
See ECF No.
20.
On July 18, 2011, the court denied Stringer’s pro se
petition without a hearing.
That same day, Stringer mailed his
reply in support of his § 2255 petition.
The court received the
reply on July 28, 2011, and quickly vacated the July 18, 2011,
order and judgment so that it could consider Stringer’s reply.
Having now considered the reply, the court again denies
Stringer’s petition without a hearing, as the record before the
court conclusively demonstrates that Stringer is not entitled to
§ 2255 relief.
See 28 U.S.C. § 2255 (requiring a hearing
“[u]nless the motion and the files and records of the case
conclusively show that the prisoner is entitled to no relief”);
see also Local Rule 7.2(d) (giving this court with the discretion
to decide all matters without a hearing).
II.
ANALYSIS.
A federal prisoner may move to vacate, set aside, or
correct his or her sentence if it “was imposed in violation of
the Constitution or laws of the United States, . . . the court
was without jurisdiction to impose such sentence, or . . . the
sentence was in excess of the maximum authorized by law, or is
otherwise subject to collateral attack.”
28 U.S.C. § 2255.
Stringer attacks his sentence, claiming that it
resulted from two instances of attorney ineffectiveness.
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First,
Stringer claims that his attorney was ineffective in failing to
contest the court’s addition of 2 criminal history points based
on Stringer’s commission of his offenses within two years of
having completed a previous sentence.
Second, Stringer claims
that his attorney was ineffective in not challenging the addition
of 3 criminal history points for three misdemeanors.
Neither
argument is persuasive.
To establish ineffective assistance of counsel,
Stringer must show that (1) his counsel’s performance was
deficient, and (2) the deficient performance prejudiced his
defense.
Strickland v. Washington, 466 U.S. 668, 687 (1984).
There is “a strong presumption” that counsel’s conduct was
reasonable and that counsel’s representation did not fall below
“an objective standard of reasonableness” under “prevailing
professional norms.”
Id. at 688.
Even if a petitioner can
overcome the presumption of effectiveness, the petitioner must
still demonstrate a “reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding
would have been different.”
Id. at 694.
Because “[i]t is all
too tempting for a defendant to second-guess counsel’s assistance
after conviction,” judicial scrutiny of counsel’s performance is
highly deferential.
Id. at 689.
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Stringer initially claims that his attorney was
ineffective because he did not prevent the court from increasing
his criminal history points based on Stringer’s commission of his
offenses within two years of having completed a previous
sentence.
Stringer says that, under Amendment 742, he should not
have received those points.
742.
Stringer purports to quote Amendment
Although the Government’s opposition appears to concede the
existence of the quoted language, the court has been unable to
locate that exact language.
See United States Sentencing
Commission Guidelines Manual, Supplement to Appendix C, Amendment
742.
Notwithstanding the quoting of language that is not
actually in Amendment 742, Stringer is correct in asserting that,
starting with the advisory guidelines effective on November 1,
2010, 2 points should no longer be added when a “defendant
committed the instant offense less than two years after release
from imprisonment.”
That is, § 4A1.1(e) of the version of the
United States Sentencing Commission Guidelines Manual that took
effect on November 1, 2009, was removed from the guidelines as of
November 1, 2010.
See United States Sentencing Commission
Guidelines Manual § 4A1.1 (effective Nov. 1, 2010).
The problem
with Stringer’s argument is that 2 criminal history points were
never added to his criminal history total for his commission of
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the crimes in this case within two years of having been released
from imprisonment.
Stringer did receive a 2-point increase for having
committed his crimes while on probation.
Stringer complained
about this in his reply, stating that his “criminal history score
was increased based on a prior sentence of probation----something
that was no longer allowed at the time of his sentencing.”
Reply at 4, ECF 51, July 28, 2011.
See
However, that 2-point
increase was called for in § 4A1.1(d), even after November 1,
2010.
The 2010 version of that section provides: “Add 2 points
if the defendant committed the instant offense while under any
criminal justice sentence, including probation, parole,
supervised release, imprisonment, work release, or escape
status.”
Stringer does not contest that, when he committed the
offenses at issue in the criminal case before this court, he was
on probation for the April 2006 identity fraud conviction in
Fulton County, Georgia.
Stringer’s attorney could not possibly have been
ineffective for failing to prevent something that did not happen
or failing to prevent a 2-point criminal history increase called
for by § 4A1.1(d).
His counsel’s performance was not deficient
on this point.
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Stringer next argues that his counsel was ineffective
in failing to prevent an increase in his criminal history points
based on misdemeanor convictions involving custody sentences of
less than 30 days in jail.
Stringer did not specifically
identify in his § 2255 petition which sentences should not have
been counted, but appeared to be challenging a total of 3 points,
1 for each of three convictions.
See 2255 Petition at 3 n.1.
Stringer clarified in his reply that he is challenging the points
awarded for the convictions discussed in paragraphs 49, 50, and
52 of the PSR.
See Reply at 6.
Stringer is incorrect in arguing
that every misdemeanor sentence of less than 30 days should not
be counted.
To the contrary, § 4A1.2(c) states:
Sentences for misdemeanor and petty offenses
are counted, except as follows:
(1)
Sentences for the following prior
offenses and offenses similar to them,
by whatever name they are known, are
counted only if (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:
Careless or reckless driving
Contempt of court
Disorderly conduct or disturbing the
peace
Driving without a license or with a
revoked or suspended license
False information to a police officer
Gambling
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Hindering or failure to obey a police
officer
Insufficient funds check
Leaving the scene of an accident
Non-support
Prostitution
Resisting arrest
Trespassing.
One point was awarded in paragraph 49 of the PSR for
Stringer’s “criminal recklessness” conviction in Delaware County,
Indiana.
Stringer does not explain or discuss why the point
should not have been awarded under § 4A1.2(c).
Stringer fails to
demonstrate that the “criminal recklessness” conviction was
similar to any of the crimes listed in that section.
Without
such a demonstration, Stringer fails to show that his counsel’s
performance was deficient with respect to the point awarded in
paragraph 49 of the PSR.
That is, Stringer fails to show that he
was improperly assessed 1 criminal history point under § 4A1.1(c)
(effective November 1, 2010), which calls for a point to be added
“for each prior sentence not counted in (a) [sentences exceeding
one year and one month] or (b) [sentences of at least sixty days
not counted in (a)], up to a total or 4 points.”
Stringer similarly fails to demonstrate that one point
should not have been awarded for the battery conviction discussed
in paragraph 50 of the PSR.
Battery is not similar to any of the
crimes listed in § 4A1.2(c).
Accordingly, the point awarded for
the battery conviction was proper.
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The court added 1 point for the crime of driving while
a license was suspended, discussed in paragraph 52 of the PSR.
Stringer may well be correct that this point should not have been
added.
Under § 4A1.2(c) (effective Nov. 1, 2010), a sentence of
imprisonment of less than 30 days for driving with a suspended
license should not have a point awarded.
Under § 4A1.2(b)
(effective Nov. 1, 2010), a “sentence of imprisonment” refers
only to the part of a sentence that is not suspended.
As
discussed in paragraph 52 of the PSR, Stringer was sentenced to
365 days in custody for driving with a suspended license.
However, 351 of those days were suspended, leaving him with a
custody term of less than 30 days.
The court had previously thought that Stringer was
challenging the addition of 1 point for the identity fraud
conviction discussed in paragraph 55 of the PSR.
Stringer’s
reply clarifies that he is not challenging this point, which was
properly added in any event because the exception set forth in
§ 4A1.2(c) is inapplicable to probation sentences of more than a
year and Stringer was sentenced to 5 years of probation.
When both of Stringer’s arguments are considered, he is
challenging a total of 5 criminal history points.
Of those
points, 2 were correctly added because he was on probation at the
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time of his crimes.
Another point was correctly added for the
battery conviction discussed in paragraph 50 of the PSR.
Accordingly, in the best case for Stringer, he should not have
received a point for each of the convictions discussed in
paragraphs 49 and 52 of the PSR.
Even if those points had not
been assessed, the result would not have changed.
At sentencing,
the court determined that Stringer had 12 criminal history
points, putting him in Criminal History Category V.
According to
the sentencing table in chapter 5 of the United States Sentencing
Commission Guidelines Manual, Criminal History Category V is the
category assigned to those with 10, 11, or 12 points.
Had the
points relating to the convictions discussed in paragraphs 49 and
52 not been assessed, Stringer would have had 10 points.
Accordingly, even in the best case scenario for Stringer, he
would still have been in Criminal History Category V.
That is,
even assuming that his counsel’s performance was deficient with
respect to paragraphs 49 and 52 of the PSR, which this court is
not finding here, that deficient performance would not have
prejudiced Stringer.
The court notes that, even if Stringer could
successfully challenge all 5 of the criminal history points his
petition addresses, he still would have had 7 criminal history
12
points, which corresponds to Criminal History Category IV.
Given
his Total Offense Level of 22, the advisory guideline range for
his conviction on Count 1 of the indictment would have then been
63 to 78 months.
This court sentenced him to 72 months for Count
1, a sentence within that range.
This court determined that a sentence of 72 months was
appropriate.
Stringer does not show that his attorney’s
performance prejudiced him, as nothing in the record suggests
that, having correctly calculated the guideline range and having
determined that 72 months (which was below the guideline range)
was appropriate, this court would have sentenced Stringer to
something less.
III.
CERTIFICATE OF APPEALABILITY IS DENIED.
An appeal may not be taken to the court of appeals from a
final order in a § 2255 proceeding “[u]nless a circuit justice or
judge issues a certificate of appealability.”
§ 2253(c)(1)(A).
28 U.S.C.
The court shall issue a certificate of
appealability “only if the applicant has made a substantial
showing of the denial of a constitutional right.”
§ 2253(c)(2).
28 U.S.C.
When a district court denies a § 2255 petition on
the merits, a petitioner, to satisfy the requirements of section
2253(c)(2), “must demonstrate that reasonable jurists would find
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the district court’s assessment of the constitutional claims
debatable or wrong.”
(2000).
Slack v. McDaniel, 529 U.S. 473, 484
Reasonable jurists would not find this court’s
assessment of Stringer’s claims to be debatable or wrong.
Stringer’s entire argument is that the guidelines were incorrect,
but even assuming there were errors, they did not affect the
guideline calculation.
Having failed to show prejudice, Stringer
does not show that his counsel was ineffective.
Accordingly, the
court denies Stringer a certificate of appealability.
IV.
CONCLUSION.
Because Stringer has failed to show that his counsel
was ineffective, Stinger’s § 2255 Petition is denied.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, August 3, 2011.
/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge
U.S. v. Stringer, Crim. No. 09-0320 SOM; Civ. No. 11-00317 SOM/RLP; AMENDED
ORDER DENYING PETITION TO VACATE, SET ASIDE, OR CORRECT SENTENCE UNDER 28 U.S.C.
§ 2255
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