Warren v. USA
MEMORANDUM DECISION AND ORDER. The Court finds that no hearing is necessary because the files and records of the case conclusively show that the prisoner is entitled to no relief. Under the narrow challenge allowed by the plea agreement, there is n o evidence that Warren was deprived of necessary information by his counsel in plea and sentencing negotiations and proceedings. Accordingly, the Court will dismiss this petition in a separate Judgment as required by Rule 58(a). Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (st)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
PHILLIP ALLEN WARREN
Civil Case No.
Criminal Case No. 1:12-cr-286-BLW
UNITED STATES OF AMERICA
The Court has before it a petition for writ of habeas corpus filed under 28 U.S.C.
§ 2255(f)(3) by petitioner Warren to vacate or correct his sentence. The petition is fully
briefed and at issue. For the reasons explained below, the Court will deny the petition
and dismiss this case.
Warren was charged with one count of distribution of methamphetamine and a
second count of possession of a firearm. Represented by counsel, Warren entered into a
plea agreement in which he pled guilty to both counts. His plea agreement recognized
that he faced a mandatory minimum sentence of 20 years.
A presentence report set the offense level at 36 and the criminal history category at
VI, resulting in a Guideline range of 324 to 405 months. Defense counsel’s objections
were rejected the probation officer and the case proceeded to sentencing. The
Government filed a motion under § 5K1 seeking a four level reduction that would have
Memorandum Decision & Order – page 1
reduced the range to 210 to 262 months. At sentencing, the Government recommended a
further reduction, seeking a sentence of 188 months. Defense counsel argued for 168
months. Judge Bryan sentenced Warren to 182 months (giving him 6 months of time
Warren filed his § 2255 petition, and the Government responded by seeking to
dismiss the petition. The petition is fully briefed.
Under § 2255, the federal sentencing court may grant relief if it concludes that a
prisoner in custody was sentenced in violation of the Constitution or laws of the United
States. Davis v. U.S., 417 U.S. 333, 344–45 (1974). To warrant relief, a petitioner must
demonstrate the existence of an error of constitutional magnitude that had a substantial
and injurious effect or influence on the guilty plea and sentencing. Brecht v.
Abrahamson, 507 U.S. 619, 637 (1993); see also U.S. v. Montalvo, 331 F.3d 1052, 1058
(9th Cir.2003) (“We hold now that Brecht’s harmless error standard applies to habeas
cases under § 2255, just as it does to those under § 2254.”). Relief is warranted only
where a petitioner has shown “a fundamental defect which inherently results in a
complete miscarriage of justice.” Davis, 417 U.S. at 346.
Under § 2255, “a district court must grant a hearing to determine the validity of a
petition brought under that section, ‘[u]nless the motions and the files and records of the
case conclusively show that the prisoner is entitled to no relief.’” U.S. v. Blaylock, 20
F.3d 1458, 1465 (9th Cir.1994) (quoting § 2255). The Court may deny a hearing if the
movant’s allegations, viewed against the record, fail to state a claim for relief or “are so
Memorandum Decision & Order – page 2
palpably incredible or patently frivolous as to warrant summary dismissal.” U.S. v.
McMullen, 98 F.3d 1155, 1159 (9th Cir.1996).
In his plea agreement, Warren retained the right to file one habeas petition for
ineffective assistance of counsel if his motion was based solely on information not known
to him at the time the court imposed sentence, and in the exercise of reasonable diligence,
the information could not have been known by him at that time. Warren has restricted his
Warren states that his attorney was ineffective for failing to tell him about the
harsh potential sentence he faced. But in his plea agreement, he was informed that the
penalty on Count 1 could range from 20 years to life. See Plea Agreement (Dkt. No. 24).
He was informed of the same thing at his plea hearing by Chief Magistrate Judge Dale.
See Minute Entry (Dkt. No. 21). The sentence he actually received was far less than 20
years. He cannot argue now that he was not told about the potential long sentence he
Warren complains that his attorney had a secret deal with the Government that
abandoned Warren’s objection that he should not receive a three-level enhancement for
his role in the offense. Warren’s counsel did originally raise an objection to the
enhancement, but the probation office rejected that objection. Later, the two sides
reached an agreement that Warren would drop his objection in return for a § 5K1 motion
from the Government, that would take the sentence below 20 years.
Memorandum Decision & Order – page 3
This deal was no secret – it was discussed at the sentencing hearing, and Warren
raised no objection. Indeed, Warren received a substantial benefit from the deal. The
Government not only moved to reduce the offense level by 4 points in its § 5K1 motion,
but then recommended an even further reduction – in effect, reducing the offense level
yet another point – by asking for a sentence of 188 months. In essence, Warren’s counsel
gave up an objection to a 3-level enhancement to get a 5-level reduction. That beneficial
outcome cannot be considered ineffective assistance.
Warren complains further that his attorney should have objected to (1) joining the
firearm count with distribution count, and (2) applying the two-point enhancement for
using a firearm. Warren points out that the distribution charge occurred on March 15,
2012, and it was not until about three months later, on June 13, 2012, that Warren was
found with the firearm that formed the basis for the firearm possession charge. He argues
that the two events are so separated in time that they should not have been joined together
and the firearm enhancement should not have been applied.
Resolving these claims requires a review of the facts. On June 13, 2012, the
police had received a tip that Warren would be buying a pound of meth at the Westin Inn
in Twin Falls. As the police surveilled the hotel, Warren arrived and began knocking on
a hotel room door when he saw the police. He turned and walked back to his truck and
threw a bag under his truck, a bag that police later found to contain the firearm. At that
time, Warren was arrested.
Warren admitted in his plea agreement that (1) he “arrived at the hotel [on June
13, 2012] intending to purchase methamphetamine”; and (2) that he “knew” he was
Memorandum Decision & Order – page 4
carrying a firearm. See Plea Agreement, supra at p. 4. But he points out that he never
admitted using or possessing the firearm during the March 15, 2012 drug sale. He argues
that it is improper to join these two unrelated offenses and to use the enhancement when
the firearm was found three months after the drug offense.
The Circuit has rejected a similar argument. U.S. v. Pitts, 6 F.3d 1366, 1373 (9th
Cir.1993) (affirming enhancement even though firearm was found 2 months after last
drug deal). A number of other Circuits agree. See U.S. v. Heckard, 238 F.3d 1222 (10th
Cir. 2001) (affirming joinder of firearm charge with distribution charge and application
of firearm enhancement even though firearm was found 24 days after last known drug
activity); U.S. v. Johnson, 227 F.3d 807 (7th Cir. 2000) (affirming firearm enhancement
even though firearm possession did not occur during the transactions for which defendant
was convicted); U.S. v. Caicedo, 103 F.3d 410 (5th Cir. 1997) (affirming firearm
enhancement even though firearm was discovered two and one-half months after drug
The analysis in these cases is as follows. The Guidelines allow for the two-level
enhancement “[i]f a dangerous weapon (including a firearm) was possessed.” See
§ 2D1.1(b)(1). The comments to that section state that “[t]he enhancement may be
applied if the weapon was present unless it is clearly improbable that the weapon was
connected with the offense.” Id. In determining if the “clearly improbable” standard is
met, a court may look to all of the acts that were part of the same course of conduct or
common scheme or plan as the offense of conviction, and not just the crime of conviction
itself. U.S. v. Willard, 919 F.2d 606, 609 (9th Cir.1990). In the Willard case, the Ninth
Memorandum Decision & Order – page 5
Circuit held that “[t]he district court properly found that appellant possessed firearms
during the period of time in which he was involved in the drug trade.”
Here, Warren admitted that he knowingly brought a firearm to a drug deal that was
the culmination of his involvement in the drug trade. It is not “clearly improbable” that
Warren’s firearm was “connected with the offense.” Consequently, the Court properly
applied the two-point enhancement.
Failure to Show Video
Warren argues that his counsel was ineffective for failing to use a video that would
have shown conclusively that Warren did not use a firearm during the March 15, 2012,
drug transaction. But as just discussed, this does not matter. Warren admitted possessing
the firearm at a drug transaction on June 13, 2012, and that is sufficient to warrant the
enhancement. So even assuming the contents of the video are as alleged by Warren, it
would make no difference.
The Court finds that no hearing is necessary because “the files and records of the
case conclusively show that the prisoner is entitled to no relief.” Blaylock, 20 F.3d at
1465. Under the narrow challenge allowed by the plea agreement, there is no evidence
that Warren was deprived of necessary information by his counsel in plea and sentencing
negotiations and proceedings. Accordingly, the Court will dismiss this petition in a
separate Judgment as required by Rule 58(a).
Memorandum Decision & Order – page 6
DATED: April 17, 2015
B. Lynn Winmill
United States District Court
Memorandum Decision & Order – page 7
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