Eccleston v. USA - 2255

Filing 2

MEMORANDUM OPINION. Signed by Judge Peter J. Messitte on 3/23/2018. (C/M 3/23/2018 aos, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
XAVIER D. ECCLESTON

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Petitioner
v.
UNITED STATES OF AMERICA
Respondent

Crim. No.
Civil No.

PJM 11-00567
PJM 17-00729

MEMORANDUM OPINION
Xavier D. Eccleston has filed a Motion to Vacate or Correct Illegal Sentence pursuant to
18 U.S.C. § 2255. ECF No. 522. For the reasons set forth below, the Court DENIES the Motion.
I.

FACTUAL AND PROCEDURAL BACKGROUND

This case stems from a drug conspiracy involving the sale of cocaine and crack cocaine
in the Kentlands area of Prince George’s County, Maryland, between June 2010 and September
2011. ECF No. 522. Phillip Whitehurst, who led the conspiracy (the “Kentland Drug
Organization” or “Whitehurst crew”), oversaw a crew of several men who had varying roles in
the organization. Id. A jury found him guilty of a drug conspiracy involving the sale of cocaine
and crack. Id.
Eccleston, a friend of Whitehurst, was charged in a Fourth Superseding Indictment with
conspiracy to distribute cocaine and crack cocaine in violation of 21 U.S.C. § 846 (Count One),
use of communications device to facilitate narcotics trafficking in violation of 21 U.S.C. §
843(b) (Counts Eight and Ten), and possession with intent to distribute cocaine and crack
cocaine in violation of 21 U.S.C. § 841(a)(1) (Counts Nine and Eleven). ECF No. 210. A jury
found him guilty on all counts. ECF No. 255.
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Eccleston’s trial began on September 11, 2012, before Judge Alexander Williams, Jr.,
and lasted six days. Various members of the Whitehurst crew testified for the Government.
Several co-operators testified that Eccleston was a customer—not a member of the conspiracy.
ECF No. 522. However, at trial, one cooperating witness testified that Eccleston had assaulted
him and threatened his family unless he agreed to lie to the jury and testify that Eccleston was
only a user of cocaine and not a distributor. ECF No. 276. A second co-operator refused to testify
because he was too concerned for his safety. Id.
Eccleston was represented at the trial level by Criminal Justice Act (“CJA”) attorney
Anthony Martin, Esquire. About two weeks after his initial appearance, Martin advised
Eccleston of what he believed was his possible sentencing range, specifically, that his criminal
history appeared to be Category VI so that his custody range under the Sentencing Guidelines
based on an Offense Level of 32 would be between 210 and 262 months. ECF No. 522-1. At
least two more times before trial, Martin advised Eccleston, in writing, of his opinion that he fell
“squarely within the definition of career offender” and that his Guidelines range would be “262
to 327 months.”1 ECF No. 522-2; ECF No. 522-3. Both Eccleston and the Government agree that
the characterization of Eccleston as a career offender was incorrect.
In an e-mail to AUSA Lenzner prior to trial, Martin asked the prosecutor how many
months of incarceration the Government would seek in a plea agreement. ECF No. 522-7. Martin
advised the Government that he “doubt[ed] that [Eccleston] would come in as a co-operator.” Id.
The Government responded that “if [Eccleston] doesn’t cooperate then he obviously can’t get
below the mandatory minimum.” Id. In that same email, Martin stated that Eccleston would

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Two offense levels were added to the base offense level because of Eccleston’s exposure to an
Obstruction of Justice charge for threatening witnesses.
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“spend the greater part, if not all of his life in prison.” Id. In his response, AUSA Lenzner stated
his belief that Eccleston’s sentence would not be “too outrageous.” Id.
At trial, one of the co-conspirators testified that the conspiracy trafficked in
approximately one kilo of powder per month for the 16 months of the charged conspiracy and
approximately three ounces of crack per day. ECF No. 297. The jury also found that Eccleston’s
personal distribution was limited to between 500 grams to 5 kilograms of powder cocaine and
less than 28 grams of crack cocaine. Id.
At sentencing, the Government asked the court to hold Eccleston responsible for the
entire amount of drugs that the conspiracy trafficked, i.e. 16 kilograms of cocaine and more than
8.4 kilograms of crack cocaine, because that amount was “reasonably foreseeable to the
defendant.” ECF No. 291 at 8-9. While district judges were not and are not bound by the
Government’s recommendations regarding drug quantities attributable to a particular defendant,
they have had an “obligation” at sentencing “to choose a method for interpreting the evidence
that ensures that only drug quantities proven by a preponderance are attributed to a defendant.”
United States v. Bell, 667 F.3d 431, 441 (4th Cir. 2011). Accordingly, while Judge Williams
found that Eccleston personally dealt only 5 kilograms or more of cocaine and 280 grams or
more of cocaine base, ECF No. 300, ECF No. 328, he determined that Eccleston’s criminal
activity and relevant conduct involved approximately 16 kilograms of powder cocaine and 28
grams of crack cocaine. This quantity converted to a total of 33,196.4 kilograms of marijuana.2
ECF No. 297; 18 U.S.C. § 3553.

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See Sentencing Guideline §2D.1.Commentary 8(A)(i): the Drug Equivalency Tables are used to convert
the quantity of the controlled substance involved in the offense to its equivalent quantity of marijuana.

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Under the Sentencing Guidelines in effect in 2013, this amount set a base level offense of
34.3 Judge Williams added two levels to Eccleston’s Offense Level for Obstruction of Justice for
threatening the witnesses and determined Eccleston’s criminal history to be a Category III. ECF
No. 297. These calculations resulted in a recommended range of 235-293 months of
imprisonment. Even so, on January 30, 2013, Judge Williams sentenced Eccleston to 210 months
on Count One, and 96 months on Counts Eights and Ten, and 210 months on Counts Nine and
Eleven, to be served concurrently. ECF No. 293; ECF No. 301.4
On January 31, 2013, Eccleston, through Martin, filed a timely appeal to the Fourth
Circuit Court of Appeals, which was denied on July 31, 2015. ECF No. 295; ECF No. 458.
Eccleston then filed a petition for writ of certiorari to the United States Supreme Court, which
was denied on March 21, 2016. Eccleston v. United States, 136 S.Ct. 1476 (2016).
On March 16, 2017, he filed the present Motion to Vacate pursuant to 28 U.S.C. § 2255.
II.

ANALYSIS

Eccleston alleges that Martin rendered constitutionally ineffective assistance when he
mistakenly told him he was a career offender, which he believed would have resulted in a
minimum of “about 20-year” imprisonment. ECF No. 522 at 11. As a result of Martin’s faulty
advice, Eccleston argues, he declined to seek a plea deal and instead proceeded to trial. Id. The
result, he claims, was that he received a much higher sentence than he would have received if he
had pled guilty. Id.
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Under the latest Guidelines, which were updated to modify the sentencing levels for controlled
substances in 2016, the same amount sets a base level of 32.

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Under the current Guidelines, Eccleston’s offense level of 34 would result in a sentence range of 188235 months. However, the court is not obliged to reduce a defendant’s term of imprisonment if the term
of imprisonment imposed was less than the term of imprisonment provided by the guideline range
applicable to the defendant at the time of his sentencing. Sentencing Guideline §1B1.10 (b)(2)(B).
Eccleston’s sentence of 210 months of imprisonment was below the minimum guideline range in effect at
the time of sentencing.
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The parties do not dispute that Strickland v. Washington, 466 U.S. 668 (1984) sets the
standard as to when a petitioner will prevail on a claim of ineffective assistance of counsel. To
do so, the petitioner must establish that (1) his counsel’s performance was deficient; and (2) the
deficient performance prejudiced the defendant. Id. at 687. To establish deficient performance,
the petitioner must show that counsel’s representation fell below an objective standard of
reasonableness. Id. at 688. With respect to prejudice, the petitioner must demonstrate a
reasonable probability that, but for counsel’s unprofessional error or errors, the results of the
proceeding would have been different. Id. at 694. A reasonable probability is a probability
sufficient to undermine confidence in the outcome. Id. The petitioner bringing an ineffective
assistance claim under § 2255 bears the burden of proving his allegation by a preponderance of
the evidence. Vanater v. Boles, 377 F.2d 898, 900 (4th Cir. 1967).
A. Deficient Performance
The parties agree that Martin incorrectly calculated Eccleston’s criminal history category
under the Sentencing Guidelines. Accordingly, the first issue is whether this incorrect advice
constituted deficient performance. The Fourth Circuit has ruled that giving legal advice
predicated on a plainly false interpretation of federal law constitutes deficient performance.
United States v. Lewis, 477 Fed.Appx. 79, 82 (2012) (“Had they simply read the applicable
federal statutes and correctly applied them to the facts of this case, they would have discovered
their error.”). In Lewis, defense counsel had urged his client to plead guilty based on counsel’s
misinterpretation of the law that his client qualified as a career offender. Id.
In both Lewis and the present case, counsel mistakenly told their clients that they
qualified for a career offender sentencing enhancement when, in fact, the clients did not.
However, Martin’s mistake is less consequential compared to counsel’s in Lewis, where counsel

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erroneously told his client that he was facing a mandatory life sentence. Lewis, 477 Fed.Appx. at
80. As a result, the defendant in Lewis forewent trial and pled guilty. Id. In contrast, Eccleston
argues that had Martin calculated the sentencing correctly, his initial Guidelines range would
have been 151 to 188 months5—before any potential reductions for Eccleston’s acceptance of
responsibility or minor role. ECF No. 522.
However, under the 2013 Guidelines, with a base level of 34 (not 32) increased by 2
levels for obstruction justice, the total offense level of 36 and criminal history of category III
would result in a recommended custody range of 235-293 months. The 262-327 months that
Martin advised would apply based on his assumption that Eccleston was a career offender is not
materially different. Under either calculation, Eccleston was very likely facing a sentence of
some 240 months (=20 years) whether he pled guilty or went to trial. ECF No. 522-3; Sentencing
Table (2013 version). Martin made a mistake, to be sure, but he did not substantially
misrepresent Eccelston’s exposure to a jail term of around “20 years.”
B. Prejudice
Assuming arguendo that Martin’s mistaken advice does amount to deficient performance,
the crucial question remains whether Eccleston was prejudiced by the mistake. The Supreme
Court has held that where having to stand trial is the prejudice alleged, a defendant must show
that, but for the ineffective advice of counsel, there is a reasonable probability that a plea offer
would have been made to the defendant, that the defendant would have accepted it, that the
prosecution would not have withdrawn it, that the court would have approved it, and that the

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This calculation provided by Eccleston is based on the current sentencing guidelines, not the 2013
version. Moreover, the calculation does not take into consideration the increase in Eccleston’s offense
level for Obstruction of Justice for threatening a witness.

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conviction or sentence, or both, based on the agreement would have been less severe than the
conviction and sentence that in fact were imposed. Lafler v. Cooper, 556 U.S. 156 (2012).
Lafler has two sub-parts. First, it requires Eccleston to show that he would have been
offered an acceptable plea that would be recognized by the court that contained a more favorable
sentence than the one actually imposed. Second, if he would have been offered such a plea offer,
he has to show that his decision to go to trial was solely due to the mistake of the trial attorney.
In other words, he must show that he would have declined to proceed to trial if the attorney had
not misadvised him.
1. Would Eccleston Have Been Offered an Acceptable Plea?
A defendant has no right to be offered a plea agreement, nor does he have a right to the
judge’s acceptance of it. Missouri v. Frye, 566 U.S. 134, 148-49 (2012). If a plea bargain has
been offered, however, a defendant has the right to effective assistance of counsel in considering
whether to accept it. Lafler, 556 U.S. at 168. If no plea offer is made, or if a plea deal is accepted
by the defendant but rejected by the judge, the issue of ineffective assistance of counsel simply
does not arise. Id.
Since Eccleston was never offered a plea agreement, under Lafler the issue of ineffective
assistance would not ordinarily arise. Eccleston does cite a case, however, in which Judge Titus
of this Court did not require the actual offer of a plea agreement to find that the petitioner would
have been offered an acceptable plea deal. In Steele v. United States, the Government had
offered, and the court had accepted, plea agreements between the Government and eight of the
petitioner’s ten co-defendants. Steele v. United States, No. CR RWT-12-0014, 2017 WL
2719363 (D. Md. June 22, 2017). In reviewing the § 2255 motion of the petitioner before him,

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Judge Titus found the Government’s argument that it would not have been willing to extend the
petitioner a plea offer “questionable at best.” Id. at *3.
The circumstances of the present case are not dissimilar. Nineteen of Eccleston’s coconspirators were offered a plea, all 19 pleaded guilty, and all 19 guilty pleas were accepted by
the court. ECF No. 532. Even Whitehurst, who was deemed the leader of the conspiracy, was
offered a plea agreement, which he did not, however, accept. Id.
Accordingly, under Steele, Eccleston has arguably met his burden of showing that the
Government would have offered him a plea agreement and, had Martin presented to Judge
Williams, that Judge Williams would have accepted it. That said, as the Court now explains,
because Eccleston has failed to show that he would not have proceeded to trial but for Martin’s
mistake, he cannot prevail on his claim of ineffective assistance.
2. Was Counsel’s Error the Only Reason Why Eccleston Proceeded to Trial?
Even if Eccleston has shown that he would have been offered an acceptable plea
agreement, the question remains: if Martin had accurately calculated Eccleston’s Sentencing
Guidelines and sentencing range, would Eccleston have accepted such an agreement and not
gone to trial?
The decision whether to plead guilty or go to trial involves assessing the respective
consequences of a conviction after trial and a conviction based on a plea. Lee v. United States,
137 S.Ct. 1958, 1966 (2017). When those consequences are, from the defendant's perspective,
similarly dire, even the smallest chance of success at trial may look attractive. Id. When a
defendant claims that advice of counsel was the basis for his decision to either plead guilty or go
to trial, the focus must be on the defendant’s decision-making. Id. at 1966-67.

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Eccleston claims that his lack of interest in pleading guilty was due to the miscalculation
of his counsel, implying that he would have been willing to plead guilty had counsel not
provided the incorrect sentencing ranges. ECF No. 530; ECF No. 532. According to Eccleston,
he had no reason to seek a plea since, according to trial counsel’s calculations, he was facing a
minimum of 262 months regardless of whether he would be convicted by trial or plea. ECF No.
532. In support of this claim, Eccleston cites a letter that he wrote to his counsel in which he
states that he is seeking “a way out” and in which he asks about the potential for negotiating a
lesser drug quantity. ECF No. 522-4. Eccleston also cites a letter he sent to Martin in which he
tells Martin that he is “definitely in a rock and a hard place.” ECF No. 522-8.
The Government counters that Eccleston went to trial because he believed the
Government did not have sufficient evidence against him. ECF No. 530.
The Court finds the Government’s view of the facts far more accurate.
As explained previously, the actual Guideline range Eccleston was facing was
substantially as onerous as the one Martin, erroneously, advised him of. Further, Eccleston
seemed to like his chances at trial. In correspondence he sent to Martin during the first part of
August, Eccleston states: “[t]he majority of the evidence that they have provided has nothing to
do with me and besides the wiretaps shows no involvement on my behalf in this conspiracy.”
ECF No.522-4. In a subsequent letter, dated August 10, 2012, Eccleston tells Martin:
So if I’m going to trial by myself, what evidence will the government be allowed to
introduce? I’m being charged with Conspiracy so they will have to prove there was a
Conspiracy that I was a willing and knowing participant. Besides the phone conversations
between me and (PW), nothing else is directly connected to me. If nobody comes to
testify against me and we get the phones from my arrest suppressed, all they have is me
making a few purchases for personal use and no proof of me reselling anything.
ECF No. 522-6.

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Both before and after he received these letters, Martin sent his own letters to Eccleston
repeatedly warning about the potential consequences of going to trial and offering alternatives.
ECF No. 522-2, 522-3. In three separate letters from Martin to Eccleston, Martin states: “You
have three options at this point in the proceedings. The first is to continue with your demand for
a trial and fight. The second is to cooperate with the Government and negotiate a plea offer. The
third is to plea without an agreement.” ECF No. 522-1; 522-2; 522-3.
In his second and third letters, dated July 26, 2012 and August 23, 2012, respectively,
Martin also states:
Should you decide to go to trial we will face the wiretapped conversation. In our review
of the evidence, I have seen enough to have formed an opinion as to the weight that will
be accorded to these by jury. Given the number of contacts; the frequency of the calls,
their brevity, the reference to numbers, coupled [with] other evidence will be devastating
to the defense. . . . Having said that I believe that the evidence against you is
substantial and a conviction is likely.
ECF No. 522-2; 522-3. (emphasis in original).
Eccleston offers no evidence to counter Martin’s letters. He provides neither
correspondence nor testimony that he requested that Martin explore an agreement, even as his
co-defendants were pleading out one by one. The evidence Eccleston himself provides clearly
indicates that Martin did not think that Eccleston had a good chance at trial and that one of the
alternatives he suggested (to cooperate and plead or just plead) would offer a more desirable
outcome. In response to these warnings, Eccleston did not express the least desire to plead nor,
again, did he ask Martin to explore such options. In short, Eccleston has not shown that he ever
seriously considered pleading guilty or that he would have done so, but for counsel’s
miscalculation of his career offender status.
Eccleston has failed to demonstrate that he was prejudiced by counsel’s miscalculation.

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III.

CONCLUSION

For the foregoing reasons, the Court DENIES Eccleston’s Motion to Vacate under 28
U.S.C § 2255.

/s/________________
PETER J. MESSITTE
UNITED STATES DISTRICT JUDGE
March 23, 2018

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