Chrishon v. USA

Filing 15

MEMORANDUM re: 1 MOTION to Vacate, Set Aside or Correct Sentence (2255) filed by Petitioner Gemael Chrishon ; An order denying the motion will be separately filed.. Signed by District Judge Carol E. Jackson on 6/24/13. (KKS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
GEMAEL CHRISHON,
Movant,
v.
UNITED STATES OF AMERICA,
Respondent.

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) No. 4:10-CV-1489 (CEJ)
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MEMORANDUM

This matter is before the court on the motion of Gemael Chrishon to vacate, set
aside, or correct sentence, pursuant to 28 U.S.C. § 2255. The United States has filed
a response in opposition.
I. Background
On February 2, 2009, Chrishon pled guilty to conspiracy to distribute and
possess with intent to distribute more than 500 grams of cocaine, in violation of 21
U.S.C. § 846. At sentencing, the court determined that Chrishon’s total offense level
was 27 and his criminal history category was IV. Under the advisory sentencing
guidelines, the range of imprisonment was 100-125 months.

On May 14, 2009,

Chrishon was sentenced to a 115-month term of imprisonment. Chrishon appealed the
judgment, but his appeal was dismissed on motion of the government.
II. Discussion
In the motion to vacate Chrishon asserts the following grounds for relief: (1)
violation of due process during the change of plea and sentencing proceedings; (2)
misapplication of criminal history points and; (3) ineffective assistance of counsel. The
relevant facts will be set forth in the discussion of each ground.

A. Ground One
In support of his first ground for relief, Chrishon initially asserts that Rule 11
of the Federal Rules of Criminal Procedure is unconstitutional. His reasoning is that the
rule derives from federal statutes, not from the United States Constitution, and there
is nothing in the Constitution that authorizes “the presentment of, acquiescence to,
and adjudication of a criminal defendant by way os a plea agreement and not require
that defendant to go to trial, before a jury, as required by Article III § 2, cl. 3 [U.S.
Const.]” Memo. in Supp., p. 15 (Doc. # 1). Of course, a procedural rule is not per se
unconstitutional because it is promulgated pursuant to a statute. However, the gist
of Chrishon’s argument appears to be that Rule 11 is unconstitutional because it covers
plea agreements and waivers of constitutional rights, neither of which are addressed
in the Constitution. This argument is without merit. While the Constitution confers
many rights upon a criminal defendant, including the right to a jury trial and the right
to be free from self-incrimination, it does not prohibit the waiver of those rights.
Further, plea bargaining has been upheld as constitutional, even though it involves the
waiver of “important constitutional rights.” Town of Newton v. Rumery, 480 U.S. 386,
393 (1987), citing Brady v. United States, 397 U.S. 742, 752-53 (1970) and
Santobello v. New York, 404 U.S. 257, 264 (1971)(Douglas, J., concurring).
Next, Chrishon asserts that, even if Rule 11 is constitutional, he is nevertheless
entitled to relief because his guilty plea was not made knowingly and voluntarily.
Specifically, Chrishon alleges that he was not informed of him that he would forfeit his
rights to call and confront witnesses, his right to trial, and his right against selfincrimination.

The record of the change of plea hearing and the plea agreement

Chrishon signed belie these allegations. United States v. Gemael Chrishon, No. 4:08-2-

CR-471 (CEJ) (E.D.Mo.), Transcript of Change of Plea Hearing, pp. 7-9 (Doc. # 152);
Plea Agreement, Guidelines Recommendations and Stipulations, pp. 15-16 (Doc. #
93). He further complains that he was not informed that a guilty plea would prevent
him from possessing a firearm and would subject him to searches by prison officials.
The failure to advise a defendant of the collateral consequences of his plea will not
vitiate the knowing nature or the voluntariness of a guilty plea. Delgado v. United
States, 1997 WL 33135309 (D. N.D. 1997) (lack of knowledge of collateral
consequences of guilty plea does not affect voluntariness of plea). See also Padilla v.
Kentucky, 130 S.Ct. 1473, 1488 (2010)(Alito, J., concurring)(“criminal convictions can
carry a wide variety of consequences . . .including civil commitment, civil forfeiture,
the loss of the right to vote, disqualification from public benefits, ineligibility to possess
firearms, dishonorable discharge from the Armed Forces, and loss of business or
professional licenses . . . but this Court has never held that a criminal defense
attorney’s Sixth Amendment duties extend to providing advice about such matters.”)
Finally, Chrishon’s assertion that his guilty plea did not have a factual basis is
squarely contradicted by the record. Chrishon admitted in the written plea agreement
and under oath at the change of plea hearing that he and several other individuals
“agreed and came to an understanding to distribute cocaine in the St. Louis, Missouri
area,” and in furtherance of that agreement, Chrishon transported more than 3.5 but
less than 5 kilograms of cocaine from Kansas City to St. Louis. [cite plea agreement
doc. #

& transcript doc. # 152, pp 16-19] Chrishon further admitted that he

voluntarily participated in the conspiracy. Id.

Chrishon’s admissions were sufficient

to establish a factual basis for his guilty plea.
Chrishon is not entitled to relief on his first claim.
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B. Ground Two and Ground Three
Chrishon’s second claim is that the court erred in its application of the
sentencing guidelines in determining his criminal history category. His third claim is
his attorney’s failure to object to the application of those guidelines as set forth in the
presentence report (PSR) constituted ineffective assistance of counsel. Because these
two claims are related, they will be discussed together.
To prevail on a claim of ineffective assistance of counsel, a movant must show
that his attorney’s performance fell below an objective standard of reasonableness and
that he was prejudiced thereby. Strickland v. Washington, 466 U.S. 668, 687 (1984).
With respect to the first Strickland prong, there exists a strong presumption that
counsel’s conduct falls within the wide range of professionally reasonable assistance.
Id. at 689. In order to show prejudice in the context of a guilty plea, the movant must
show that there is a reasonable probability that, but for counsel’s errors, he would
have not pleaded guilty, but instead would have proceeded to trial. Hill v. Lockhart,
474 U.S. 52, 59 (1985); United States v. Davis, 583 F.3d 1081, 1091 (8th Cir.
2009);United States v. Nesgoda, 559 F.3d 867, 870 (8th Cir. 2009). The failure to
show prejudice is dispositive, and a court need not address the reasonableness of
counsel’s performance in the absence of prejudice. United States v. Apfel, 97 F.3d
1074, 1076 (8th Cir. 1996).
The PSR revealed that Chrishon had three misdemeanor convictions for driving
while license suspended. For one of the convictions, he was assessed two criminal
history points, pursuant to U.S.S.G. § 4A1.1(b); he was assess one criminal history
point for each of the two other convictions, pursuant to U.S.S.G. § 4A1.(c).

In

addition, Chrishon was assessed two criminal history points, pursuant to U.S.S.G. §
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4A1.1(d), for committing the instant offense while on probation. Chrishon asserts that
the application of these guidelines was error and his attorney’s failure to object was
ineffective assistance.
The facts set forth in the PSR clearly established the propriety of assessing the
criminal history points for these offenses. Moreover, Chrishon offers no additional or
contrary facts that his attorney could have presented to dispute the information in the
PSR. The objections Chrishon contends his attorney should have made would have
been fruitless. Thus, Chrishon has not established that his attorney’s performance was
deficient or that he suffered prejudiced.
III. Conclusion
For the foregoing reasons, the court concludes that motion and the files and
records of this case show that Chrishon is not entitled to relief under 28 U.S.C. § 2255
based on any of the claims he asserts in the motion to vacate. Therefore, the motion
will be denied without a hearing. See Engelen v. United States, 68 F.3d 238, 240 (8th
Cir. 1995). Additionally, the court finds that Chrishon has not made a substantial
showing of the denial of a constitutional right. Therefore, the court will not issue a
certificate of appealability. See 28 U.S.C. § 2253.

An order denying the motion will be separately filed.

____________________________
CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 24th day of June, 2013.

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