Massenburg v. USA - 2255
Filing
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MEMORANDUM AND ORDER denying 50 Motion to Vacate (2255) in criminal case MJG-12-0274 as to Keith Donnell Massenburg (1). Signed by Judge Marvin J. Garbis on 6/1/2015. (dass, Deputy Clerk)(c/m 6/1/15-das)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
KEITH MASSENBURG
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Petitioner
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vs.
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UNITED STATES OF AMERICA
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Respondent
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CIVIL ACTION NO. MJG-13-3920
(Criminal No. MJG-12-0274)
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*
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MEMORANDUM AND ORDER
The Court has before it Petitioner's Motion to Vacate, Set
Aside, or Correct Sentence [Document 50] and Petitioner's
Petition for Leave to Amend [Document 71].
The Court finds that
a hearing is unnecessary.
I.
BACKGROUND
On December 19, 2012, Petitioner was convicted on a plea of
guilty to possession with intent to distribute heroin.
The plea
agreement, under Rule 11(c)(1)(C) of the Federal Rules of
Criminal Procedure, included the parties' stipulation that the
appropriate sentence was 120 months incarceration concurrent
with any sentence imposed for violation of supervised release
conditions in MJG-99-0435.
See [Document 38].
On December 19,
2012, the Court imposed the sentence that the parties had
stipulated was the appropriate disposition of the case.
See
[Document 40].
By the instant Motion, timely filed, pursuant to 28 U.S.C.
§ 2255, Petitioner seeks to have his conviction and sentence
vacated.
II.
GROUNDS ASSERTED
Petitioner asserts the following grounds for relief:
1.
He was denied the effective assistance of counsel
due to counsel's failure to:
a.
b.
2.
Seek dismissal based on the alleged
inadequacy of the Superseding Indictment due
to the absence of a specified drug amount;
and
Obtain a contemporaneous Presentence Report
prior to sentencing.
The Court did not utilize a contemporaneous
Presentence Report and "did not independently
verify the information in the [Presentence Report
that had been prepared in 2000] himself or with
the defendant prior to Sentencing."
[Document 50] at 5.
III. INEFFECTIVE ASSISTANCE OF COUNSEL
In order to prevail on a claim that counsel's
representation violated his Sixth Amendment right to effective
assistance of counsel, Petitioner must show (1) "that counsel's
representation fell below an objective standard of
2
reasonableness,"1 and (2) "that there is a reasonable probability
that, but for counsel's unprofessional errors, the result of the
proceeding would have been different."
Strickland v.
Washington, 466 U.S. 668, 687-88, 694 (1984).
"A reasonable
probability is a probability sufficient to undermine confidence
in the outcome [of the proceedings]."
Id. at 694.
Petitioner bases his ineffective assistance claim on
counsel's failure to:
a.
b.
A.
Seek dismissal based on the alleged
inadequacy of the Superseding Indictment due
to the absence of a specified drug amount.
Obtain a Presentence Report.
Adequacy of the Superseding Indictment.
Petitioner pleaded guilty to Count Two of the Superseding
Indictment, which states:
On or about March 2, 2012, in the District
of Maryland, the defendant,
KEITH DONNELL MASSENBERG,
did knowingly, intentionally and unlawfully
possess with intent to distribute a quantity
of a mixture or substance containing a
detectable amount of heroin, a Schedule I
controlled substance.
21 U.S.C. § 841 (a)(1).
[Document 33] at 2.
1
Thus overcoming a presumption that counsel's conduct (i. e.
representation of the criminal defendant) was reasonable. See
Strickland v. Washington, 466 U.S. 668, 687-88 (1984).
3
This statement was adequate to state the necessary elements
of a violation of 21 U.S.C. § 841.
The Superseding Indictment
was not required to include a specific drug weight.
As stated in United States v. Obi, 239 F.3d 662, 667 (4th
Cir. 2001):
The amount charged in the indictment – a
"detectable amount" of heroin – fulfills the
language of 21 U.S.C. § 841 prohibiting the
distribution of "a controlled substance."
Accordingly,
Obi's
indictment
properly
charged him with every element of a crime
for which he was subsequently found guilty
by a jury beyond a reasonable doubt. Obi's
assignment
of
error,
therefore,
cannot
relate to the indictment or jury finding of
guilt on that indictment, but must relate to
sentencing, during which the district court
fund
that
Obi
was
involved
in
the
distribution of 1-3 kilograms of heroin by a
preponderance of the evidence and relied on
that amount of fixing the final sentence.
Petitioner's reliance upon Alleyne v. United States, 133
S.Ct. 2151 (2013) is misplaced.
Petitioner was not sentenced to
ten years of incarceration by virtue of any judicial finding2 of
a specific quantity of heroin triggering a mandatory minimum
sentence.
Petitioner's ten-year sentence was agreed upon expressly by
Petitioner in the plea agreement.
This agreement was emphasized
during the Rule 11 (guilty plea) proceeding.
2
Petitioner stipulated, in his plea agreement, that he had
possessed 1.36 grams of raw heroin. See [Document 38] at 4.
4
THE COURT:
Now, you also understand that
this is a plea agreement to an agreed
sentence of 120 months.
I don't have to
accept it, but if I accept that plea
agreement, that's going to be your sentence.
If I don't accept it, well, if I
sentence is more, you have a
withdraw your guilty plea.
If I
less, the government has the
withdraw the guilty plea.
said your
right to
say it's
right to
But the maximum legal penalty for this
offense would be 20 years, and that's
followed by a term of supervised release of
at least three years, apparently. And there
could be a fine, which could be as little as
a hundred dollars called an assessment, it
could be as high as a million dollars if you
had a lot of money.
So do you
sentence?
understand
THE DEFENDANT:
that's
the
possible
Yes.
THE COURT: All right. In many cases, your
sentence is determined, and certainly I have
to look at it, the guidelines that I have to
consider your agreement and whether under the
statute it's reasonable and appropriate to
sentence you to either the sentence you've
agreed upon or something else.
But as far as you're concerned, it's either
ten years or this agreement is over.
Do you understand that?
THE DEFENDANT:
Yes.
Tr. Dec. 19, 2012 at 6:9-7:9 (emphasis added)
Petitioner's counsel was not ineffective because he "failed
to" assert a meritless motion for dismissal based upon the
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alleged inadequacy of the Superseding Indictment to include a
specific drug weight in the Count to which Petitioner pleaded
guilty.
B.
The Presentence Report
A presentence report was prepared in connection with
Petitioner's sentence imposed in 2000 in United States v.
Massenburg, MJG-99-0435.
That report reflected Petitioner's
Criminal History Category as VI.
By 2012, due to the passage of
time, Petitioner's Criminal History Category had decreased for
Sentencing Guidelines purposes to III.
By virtue of the plea agreement, the Government did not
proceed against Petitioner on the felon in possession of a
firearms charge, which would have required a mandatory minimum
of fifteen years imprisonment.
Instead, Petitioner was able to
plead guilty only to a drug offense that had no such mandatory
minimum sentence.
See Tr. Dec. 19, 2012 at 17:19-18:14.
Petitioner's counsel did not demand a presentence report
but moved to proceed to sentencing without one.
THE COURT: All right. I understand that I
think, Mr. Hurson, do you wish to move for
sentencing?
MR. HURSON:
Yes, Your Honor.
THE COURT:
All right.
In the absence of
objection from the government with the plea
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agreement, I find that I can comply with
Section 3553 based on the record before me.
So we can proceed to sentencing.
Id. at 15:20-16:1.
If a contemporaneous presentence report had been prepared,
it would have reflected that, for the instant case, Petitioner's
Sentencing Guidelines computation was Offense Level 10, Criminal
History Category III, with a guideline range of 10 to 16 months
imprisonment.
Id. at 17:23-18:2, 18:15-18.
However, in the
plea agreement, the parties agreed that the Court would impose a
variant sentence of 120 months.
The situation was made clear
during the sentencing hearing.
THE COURT: All right. Given that, the first
step in sentencing is the determination of
the guideline range, and the way I view the
guideline range taking into account that Mr.
Massenburg is a career criminal, I come out
with Offense Level 24 and Criminal History
Category VI.
Does anybody have a dispute about that?
MR.
HURSON:
Yes,
Your
Honor.
Mr.
Massenburg's presentence report is from his
conviction in the year 2000. The presentence
report before Your Honor is from that case.
I don't know of a second one that was
prepared.
. . . .
THE COURT:
case.
This is the report in the earlier
MS. SHRUM:
2000.
That was prepared in November of
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THE COURT:
Okay.
All right.
Now, I see.
I see.
MR. HURSON:
What we're hoping to do is
simply to update that through Miss Shrum with
new information, but with respect to Mr.
Massenburg's criminal history and overall
guideline range, because of
convictions
timing out, Mr. Massenburg would actually
have
five
criminal
history
points
and
therefore
would
be
a
Criminal
History
Category III, with a guideline range that
we've agreed upon for Count 2, that would be
a 10, Criminal History Category III, which
would normally result in an advisory range of
10 to 16 months.
So obviously our agreed-upon disposition
suggests a significant upward variance. The
reason for that, and the government, had they
proceeded on other charges, may have been
able to convict Mr. Massenburg for a firearms
charge.
As Your Honor's well aware under the Armed
Career Criminal Act, prior convictions do not
time out as they do under the guidelines.
Therefore, had Mr. Massenburg been convicted
of being a felon in possession of a firearm,
the government's position is it could have
extracted
a
15-year
mandatory
minimum
penalty. So our plea negotiations resulted
in what we have before you, which is an
upward variance on the second count.
THE COURT: Very well. All right. So that
the guideline range as it stands now is
Offense Level 10, Criminal History Category
III?
MR. HURSON:
That's correct.
THE COURT:
Very well.
All
right.
8
10
to
15
months.
So that to impose the sentence would require
a substantial variance, and that's part of
the plea agreement?
MR. HURSON:
THE COURT:
That's correct.
All right.
Fine.
MR. HURSON:
And I could give you the
guideline
range
on
the
violation
[of
supervised release in MJG-99-0435] as well,
which would be a Category VI, because that
relates back to the original 2000 PSR, which
would make the guideline range for the
violation he has admitted to, to be 8 to 14
months. And what we've agreed on is that it
will be an 8-month concurrent sentence with
the underlying charge.
THE COURT:
right.
All right.
I understand.
All
Id. at 16:25-19:5 (emphasis added).
Petitioner does not suggest what might have been included
in a presentence report prepared prior to sentencing that likely
would have resulted in a sentence lower than the sentence to
which he agreed.
Petitioner's counsel was not ineffective because he "failed
to" demand a contemporaneous presentence report.
Nor was there
any judicial error in proceeding to Petitioner's sentencing in
the absence of a contemporaneous presentence report.
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IV.
DUE PROCESS
Petition contends that he was denied due process because
the Court did not independently verify – or review with
Petitioner – the information that would have been included in
any presentence report considered in regard to the sentence
imposed.
As discussed above, there was no need for a
presentence report in the instant case.
Moreover, Petitioner
does not suggest anything that would have been included in a
presentence report that would have made any difference in regard
to the sentence imposed.
V.
AMENDMENT
Petitioner states in his Petition for Leave to Amend that
he wishes to amend the instant Motion.
amendment.
However, he presents no
Instead, he presents additional arguments in reply
to the Government's Response to the instant Motion.
The Court
has considered the contentions made therein in reaching the
instant decision.
The Court will not permit an amendment of the
instant Motion but will accept the filing as a supplement to
Petitioner's Response [Reply] [Document 70].
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VI.
CONCLUSION
For the foregoing reasons:
1.
Petitioner's Motion to Vacate, Set Aside, or
Correct Sentence [Document 50] is DENIED.
2.
Petitioner's Petition for Leave to Amend
[Document 71] is DENIED but the pleading is
accepted as a supplement to the reply to the
Government's Response to the instant Motion.
3.
The case shall be dismissed with prejudice.
4.
Judgment shall be entered by separate Order.
SO ORDERED, on Monday, June 1, 2015.
/s/__________
Marvin J. Garbis
United States District Judge
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