Swartz v. USA
Filing
1
MEMORANDUM OPINION & ORDER: 1. Dft's motion to vacate is DENIED. 2. A certificate of Appealability shall not issue. 3. A separate judgment will issue this date. Signed by Judge Danny C. Reeves on 11/7/16.(LC)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION
(at Lexington)
UNITED STATES OF AMERICA,
)
)
)
)
)
)
)
)
)
Plaintiff/Respondent,
V.
ASHLEY SWARTZ,
Defendant/Movant.
***
***
Criminal Action No. 5: 14-074-DCR
and
Civil Action No. 5: 16-367-DCR
MEMORANDUM OPINION
AND ORDER
***
***
This matter is pending for consideration of Defendant Ashley Swartz’s Motion to
Vacate, Set Aside, or Correct her Sentence pursuant to 28 U.S.C. § 2255. [Record No. 370]
Swartz and several co-defendants pleaded guilty to one count of conspiring to distribute
Oxycodone in violation of 21 U.S.C. §§ 846 and 841(a)(1). [Record No. 216] On February
4, 2015, Swartz was sentenced to 87 months of imprisonment, followed by a term of supervised
release of three years. [Record No. 231] Swartz filed her § 2255 motion on September 26,
2016. [Record No. 370] The Court then directed her to respond to a number of issues to avoid
dismissal. [Record No. 372] A review of Swartz’ response establishes that she is not entitled
to the relief sought. Therefore, Swartz motion to vacate will be denied.
I.
Swartz was involved in a conspiracy to distribute Oxycodone pills to various customers
with co-Defendant Eric Gonzalez and others. [Record No. 216, ¶ 3] On September 27, 2014,
law enforcement personnel observed Swartz and a second person involved in the conspiracy
meeting with Rodney Johnson at a Pilot Truck Stop. [Id.] Following this meeting, a traffic
-1
stop of Johnson’s vehicle occurred. During the traffic stop, the Oxycodone pills that Swartz
had sold to Johnson were found. Johnson admitted he had obtained the pills during the earlier
encounter with Swartz. [Id.] Thereafter, Swartz provide approximately thirty Oxycodone pills
to another customer during a meeting in a women’s restroom of the truck stop. [Id.] Swartz
then met with Gonzalez and paid for some of the pills that had been fronted to her. [Id.]
Swartz was arrested on unrelated drug-trafficking charges on November 26, 2013. [Id.]
During a subsequent interview, she admitted to participating in a drug trafficking conspiracy
with Gonzales and others. [Id.] The parties ultimately entered into a written Plea Agreement
under which Swartz acknowledged responsibility for distributing pills having an equivalency
of 100 to 400 kilograms of marijuana. [Id.]1
The terms of the Plea Agreement provided several waivers agreed to by Swartz.
Specifically, Swartz agreed that she would “not file a motion for a decrease in offense level
based on a mitigating role pursuant to U.S.S.G. § 3B1.2 . . . .” [Id. at ¶ 7] Additionally, she
agreed that, “[e]xcept for claims of ineffective assistance of counsel,” she waived “the right to
attack collaterally the guilty plea, conviction, and sentence.” [Id. at ¶ 8]
Swartz did not receive a role reduction. As a result, her Total Offense Level of 21
(calculated according to the amount of drugs attributed to her, reduced by three levels for
timely acceptance of responsibility) and Criminal History Category V resulted in a nonbinding guideline range of imprisonment of 70 to 87 months. Swartz did not object to relevant
1
Swartz admitted to distributing an average of 160 Oxycodone pills each week for approximately
10 weeks from mid-September 2013 through the date of her arrest on November 26, 2013. [See
Record No. 216, ¶ 3.] The nature and duration of this drug trafficking activity would not qualify
Swartz for a role reduction under the subject amendment even if Swartz had not waived her right
to seek such a reduction.
-2
information contained in the Pre-sentence Investigation Report and was sentenced at the top
of her guideline range. [Record No. 231] And she did not seek to appeal the sentence imposed.
The judgment became final fourteen days following entry of the judgment on February 5, 2015.
II.
In seeking relief under 28 U.S.C. § 2255, a defendant may assert that: the sentence was
imposed in violation of the United States Constitution or federal law; the Court lacked
jurisdiction; his or her sentence exceeded the maximum penalty authorized by law; or the
sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255(a). A defendant will only
prevail on a claim of nonconstitutional error if she is able to show a “fundamental defect which
inherently results in a complete miscarriage of justice, or, an error so egregious that it amounts
to a violation of due process.” United States v. Ferguson, 918 F.2d 627, 630 (6th Cir. 1990).
II.
A knowing and voluntary waiver in a plea agreement is enforceable. United States v.
Pettway, 99 Fed. Appx. 731, 733 (6th Cir. 2005) (citation omitted).2 Here, Swartz waived the
right to collaterally attack her sentence, except for grounds of ineffective assistance of counsel.
[Record No. 231, ¶ 8] Swartz now seeks to collaterally attack her sentence, but her challenge
is not based on a claim that her attorney was ineffective. Thus, under the clear terms of her
plea agreement, Swartz is not permitted to maintain the present action attacking her sentence.
Swartz does not address this issue in her response, and does not provide any reason that this
Court should decline to enforce this waiver. As a result, Swartz is not entitled to relief.
2
Swartz does not assert that her guilty plea was unknowing or involuntary. Likewise, she does
not assert actual innocence.
-3
In addition to waiving the right to collateral review under a § 2255 motion, Swartz also
waived the right to pursue the specific issue that she raises in her motion. Under § 3B1.2, a
sentencing court may reduce a defendant’s offense level if the defendant played only a minimal
or minor role in the offense. U.S.S.G. § 3B1.2. Swartz’s motion and response to this Court’s
Order focus on her belief that she was entitled to a reduction for her lesser role under § 3B1.2
at the time of sentencing, and that Amendment 794 entitles her to that reduction at this time.
[Record Nos. 370, 376] However, Swartz waived the right to “file a motion for a decrease in
the offense level based on a mitigating role pursuant to U.S.S.G. § 3B1.2 . . . .” [Record No.
216, ¶ 7] As a result, she could not make this argument at the time of sentencing. Amendment
794 does not give Swartz the right to seek the role reduction now.
Swartz is correct that Amendment 794 applies retroactively. The amendment added a
list of factors in the commentary that district courts should consider when determining whether
to apply a role reduction under § 3B1.2. U.S.S.G. § 3B1.2 cmt. n. 3(C) (2015). As the Sixth
Circuit recently has held, this is a clarifying amendment that applies retroactively. United
States v. Carter, Nos. 15-3618/15-3643, 2016 U.S. App. LEXIS 18122, at *14-17 (6th Cir.
Oct. 3, 2016) (citing United States v. Quintero-Layva, 823 F.3d 519, 523 (9th Cir. 2016)).
In Carter, the defendant argued at sentencing that she was entitled to a role reduction
under § 3B1.2. However, the district court concluded that the reduction was not appropriate.
The sentencing hearing was held before Amendment 794 became effective. Therefore, the
Sixth Circuit remanded for re-sentencing, concluding that the defendant was entitled to have
the role reduction evaluated in light of the factors outlined in Amendment 794. Id. at *17.3
3
Unlike the defendant in Carter, Swartz did not argue entitlement to a role reduction during her
sentencing hearing. She instead waived that right as part of her plea agreement. Accordingly,
-4
While Amendment 794 applies retroactively, retroactivity is on no consequence here.
Swartz asserts a nonconstitutional error. Where a defendant makes such a claim, he or she will
only prevail if the alleged error amounts to a “fundamental defect which inherently results in
a complete miscarriage of justice, or, an error so egregious that it amounts to a violation of due
process.” United States v. Ferguson, 918 F.2d 627, 630 (6th Cir. 1990); see also Jones v.
United States, 161 F.3d 397 (holding that an error in applying the Sentencing Guidelines does
not warrant collateral relief “absent a complete miscarriage of justice”). In this case, the
Amendment is of no consequence because the Court did not err by not applying Amendment
794, much less commit an error that amounted to “a complete miscarriage of justice” or a due
process violation.
Swartz’s motion also is time-barred. The Antiterrorism and Effective Death Penalty
Act of 1996 (“AEDPA”) provides a one-year statute of limitations. Under § 2255(f)(1), the
limitations period begins to run at the latest of one of four dates: (1) “the date on which the
judgment of conviction becomes final”; (2) the date that a Government impediment to making
the motion is removed; (3) “the date on which the right asserted was initially recognized by
the Supreme Court”; and (4) “the date on which the facts supporting the claim or claims
presented could have been discovered through the exercise of due diligence.” 28 U.S.C. §
2255(f). Swartz’s motion is time-barred because she filed it well after the date on which the
judgment became final (i.e., fourteen days following entry of the Judgment on February 5,
2015). [Record No. 231]
even if Amendment 794 had been in effect at the time of sentencing, it would not affected whether
Swartz received a reduction for her role in the offense of conviction.
-5
Swartz argument that her motion is timely because the subject amendment did not take
effect until November 1, 2015, is unavailing because it does not fall within any of the four
categories outlined above. The first three subsections are clearly inapplicable, Further,
Section 2255(f)(4) only permits a later date for the limitations period if the claimant has
discovered new facts. Swartz does not make such a claim in her motion. 4 Accordingly, her
motion is untimely.
Finally, Swartz is not entitled to a certificate of appealability. Under Slack v. McDaniel,
529 U.S. 473, 478 (2000), Swartz must show “that jurists of reason would find it debatable
whether the petition states a valid claim of the denial of a constitutional right, and that jurists
of reason would find it debatable whether the district court was correct in its procedural
ruling.” Because Swartz has not raised the denial of a constitutional right, and no jurist of
reason would debate the Court’s procedural ruling, denial of a certificate of appealability is
appropriate.
III.
For the reasons outlined above, it is hereby ORDERED as follows:
1.
Defendant Ashley Swartz’s motion to vacate under 28 U.S.C. § 2255 [Record
No. 370] is DENIED.
2.
A Certificate of Appealability shall not issue.
3.
A separate Judgment will issue this date.
4
As the Sixth Circuit noted, the language of USSG § 3B1.2 did not change; only the commentary
changed. Carter, supra at 16.
-6
This 7th day of November, 2016.
-7
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?