Armstrong v. United States of America
Filing
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MEMORANDUM AND ORDER re: 1 MOTION to Vacate, Set Aside or Correct Sentence (2255) filed by Petitioner Christopher Armstrong For the foregoing reasons, the Court concludes that Armstrong has not shown that he is entitled to relief under 28 U.S. C. § 2255 based on any of the claims he asserts in the motion. The Court finds that Armstrong 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(c)(2).. Signed by District Judge Carol E. Jackson on 11/8/13. (KKS)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
CHRISTOPHER ARMSTRONG,
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Movant,
vs.
UNITED STATES OF AMERICA,
Respondent.
No. 4:11-CV-0473 (CEJ)
MEMORANDUM
This matter is before the Court on the motion of Christopher Armstrong to
vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. The United States
has filed a response in opposition to the motion, to which Armstrong has filed a reply.
The issues are fully briefed.
I.
Background
A grand jury indictment charged Armstrong with conspiring to manufacture in
excess of 50 grams of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and
846 (Count I); possession of firearms as a convicted felon, in violation of 18 U.S.C. §
922(g) (Counts II and IV); and, possession of firearms in furtherance of a drugtrafficking crime, in violation of 18 U.S.C. § 924(c) (Counts III and V).
Armstrong
pled guilty to Counts I and III. Pursuant to the parties’ plea agreement, the remaining
counts were dismissed at sentencing.
The statutory penalties for Count I included imprisonment for not less than five
and not more than 40 years. For Count III, the penalties included imprisonment of not
less than ten years and not more than life, to be imposed consecutively to any other
term of imprisonment.
Under the advisory sentencing guidelines, the range of
imprisonment in Armstrong’s case was 84 to 105 months. However, Armstrong and
the government entered into a plea agreement that contained the following provision:
Pursuant to Rule 11(c)(1)(C), Federal Rules of Criminal Procedure, in this
document the parties have recommended that the defendant be
sentenced to a term of 25 years as a result of negotiation between the
parties, said sentence consisting of a term of imprisonment of 15 years
as to count one and a consecutive term 10 years imprisonment as to
count three. The parties believe that the Court should use this
recommendation in sentencing the defendant.
The Court accepted the parties’ recommendation and sentenced Armstrong to
consecutive terms of imprisonment 180 months on Count I and 120 months on Count
III. Armstrong did not appeal the judgment.
II.
Discussion
In his motion to vacate, Armstrong asserts that he was denied effective
assistance of counsel. As grounds for his claim, Armstrong asserts that his attorney
(1) should not have allowed him to accept a plea agreement of 180 months
imprisonment for Count I when the applicable guideline sentencing range was only 84105 months; and (2) failed to review the Presentence Investigation Report with him
and failed to file objections to the report.
To prevail on his claim of ineffective assistance of counsel, Armstrong 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 establish prejudice, Armstrong “must show that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.
A reasonable probability is a probability
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sufficient to undermine confidence in the outcome.” Id. at 694. To show ineffective
assistance of counsel in the context of a guilty plea, a movant must show that but for
counsel's errors, he would not have pleaded guilty but would have proceeded to trial.
Hill v. Lockhart, 474 U.S. 52, 57–59 (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.
The 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).
Ground 1
During the change of plea hearing, Armstrong was questioned in detail about the
terms of the plea agreement. Under oath, Armstrong stated that he had reviewed the
agreement with his attorney and that he understood that, if the agreement were
accepted by the Court, he would receive a sentence of 15 years’ imprisonment on
Count I and a consecutive sentence of 10 years’ imprisonment on Count III.
Armstrong also stated that he understood that he could receive a sentence of more
than 25 years’ imprisonment if the plea agreement were rejected. In fact, Armstrong
acknowledged in the plea agreement that he faced a statutory penalty of not less than
40 years’ imprisonment if convicted on all counts. Armstrong voluntarily pled guilty
with a full understanding of the consequences, with and without the plea agreement.
Armstrong makes no contention, much less any showing, that he would have
rejected the plea agreement and proceeded to trial had he been informed of the 84105 month guideline imprisonment range.
Indeed, it would have been wrong for
defense counsel to even suggest to Armstrong that an 84-105 month range was
applicable in his case.
But for the plea agreement, the government would have
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prosecuted Armstrong for all five charges in the indictment, and Armstrong would
have faced a minimum sentence of 40 years in prison upon conviction.1
Thus,
Armstrong had two choices: accept the plea agreement of 25 years or go to trial and
run the risk of a minimum 40-year sentence.
There is no evidence that the
government would have dropped three of the five counts without Armstrong’s
agreement to a 25-year sentence.
Thus, a sentence within the 84-105 month
guideline range was never available to Armstrong.
Clearly, Armstrong cannot
demonstrate that he was prejudiced by his attorney’s failure to give him bad advice.
Ground 2
Armstrong’s second claim---that his attorney did not sufficiently review the
presentence report (PSR) with him---is contradicted by statements he made during the
sentencing hearing:
THE COURT: Mr. Armstrong, did you receive a copy of the
Presentence Report?
THE DEFENDANT: Yes, Your Honor.
THE COURT: And have you reviewed the report with your lawyer?
THE DEFENDANT: Yes, Your Honor.
United States v. Armstrong, Case No. 4:09-CR-00471, Transcript, p. 22 [Doc. 158].
Greater weight is given to the statements Armstrong made in open court than to the
allegations contrary in his motion to vacate.
additional time to review the PSR.
At no point did Armstrong ask for
In any event, Armstrong fails to demonstrate
prejudice. He does not show how any further review of the PSR would have affected
The charge in Count V carried a minimum sentence of 25 years in prison, to
run consecutively to the five-year mandatory minimum for Count I and the
consecutive 10-year mandatory minimum for Count III.
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the outcome of the proceedings, nor does he contend that, but for his attorney’s
shortcomings, he would have chosen to go to trial.
Likewise, Armstrong cannot support his ineffective assistance claim based on
defense counsel’s failure to object to the PSR. Armstrong does not specify any error
or inaccuracy in the report that would have justified an objection. See Bryson v. United
States, 268 F.3d 560, 562 (8th Cir. 2001) (conclusory allegations are insufficient to
establish ineffective assistance), cert. denied, 536 U.S. 963 (2002). Thus, he cannot
demonstrate how an objection would have changed the outcome of his case. Hill, 474
U.S. at 57–59 (a movant must show that, but for counsel's errors, the defendant would
not have pleaded guilty but would have proceeded to trial).
III.
Conclusion
For the foregoing reasons, the Court concludes that Armstrong has not shown
that he is entitled to relief under 28 U.S.C. § 2255 based on any of the claims he
asserts in the motion. The Court finds that Armstrong 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(c)(2).
CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 8th day of November, 2013.
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