Bess v. United States of America
MEMORANDUM AND ORDER IT IS HEREBY ORDERED that movant Kevin Besss Motion to Vacate, Set Aside, or Correct Judgment pursuant to 28 U.S.C.§ 2255 is DENIED and DISMISSED WITH PREJUDICE. A separate Order of Dismissal will accompany this Memorandum a nd Order. IT IS FURTHER ORDERED that, because Movant Kevin Bess cannot make a substantial showing of the denial of a constitutional right, the Court will not issue a certificate of appealability. See 28 U.S.C. § 2253(c). 1 Signed by District Judge Jean C. Hamilton on 2/17/14. (CLA)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
UNITED STATES OF AMERICA
MEMORANDUM AND ORDER
This matter is before the Court on Movant Kevin Bess‟s Motion to Vacate, Set Aside, or
Correct Sentence (“Motion to Correct”), filed pursuant to 28 U.S.C. § 2255. The matter has been
fully briefed and is ready for disposition.
On December 9, 2009, Bess was indicted for possessing with intent to distribute more
than 50 grams of cocaine base, in violation of 21 U.S.C. § 841(a)(1). (Movant‟s Reply to
Government‟s Response, (“Reply Brief”), at 1). Bess pleaded guilty to that count on February 4,
2010, and the court accepted his plea. (Plea Hearing Transcript, (“Pl. Hrng. Tr.”), at 13-14). The
sentencing court imposed the 120-month statutory minimum on May 5, 2010. (ECF No. 21). On
April 2, 2011, Bess, who is currently incarcerated in Littleton, CO, filed this Motion to Correct.
(ECF No. 1). The Motion to Correct included three separate claims for relief. (Memorandum in
Support of Motion, (“Support Brief”), at 2, 8, 12). The Government filed its response on August
15, 2011. (ECF No. 7).1 On October 6, 2011, Bess filed a reply to the Government‟s response,
which included a concession of one claim and an addition of another. (Reply Brief at 9-10). Also
The Government filed a response, (ECF No.6), and then an amended response. (ECF No. 7). All
references to the Government‟s response are references to the amended version.
on October 6, 2011, Bess filed for leave to amend his § 2255 motion in accordance with the
content of his Reply Brief. (ECF No. 11). The Court granted the requested leave. (ECF No. 13).
In his Motion to Correct and in the amendments contained in his Reply Brief, Bess raises
three separate grounds for relief. First, Bess argues that the “100-to-1” sentencing ratio under the
1986 Anti-Drug Abuse Act was unconstitutional.2 (Support Brief at 2; Reply Brief at 4). Bess
next argues that he received ineffective assistance of counsel at the sentencing stage because his
attorney failed to argue that the 100-to-1 ratio was unconstitutional. (Support Brief at 12; Reply
Brief at 5-6). Bess argues finally that he received ineffective assistance of counsel at the
sentencing stage because his attorney failed to argue for a sentence below the 10-year statutory
minimum required by the 1986 Anti-Drug Abuse Act. (Reply Brief at 9-10). Based on these
claims, Bess requests that his sentence be lowered to 60 months instead of the 120-month
statutory minimum he received. (Reply Brief at 11).
Under § 2255, a federal prisoner may seek relief on the ground that “the sentence was
imposed in violation of the Constitution or laws of the United States, or that the court was
without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum
authorized by law, or is otherwise subject to collateral attack,...” 28 U.S.C. § 2255. The Court
must hold an evidentiary hearing to consider claims in a § 2255 motion “„[u]nless the motion and
the files and records of the case conclusively show that the prisoner is entitled to no relief.‟”
Shaw v. United States, 24 F.3d 1040, 1043 (8th Cir. 1994) (citing 28 U.S.C. § 2255). Thus, a
movant is entitled to an evidentiary hearing “„when the facts alleged, if true, would entitle him to
Under the 1986 Anti-Drug Abuse Act, a 10-year minimum sentence was attached to possessing with
intent to distribute 50 grams of cocaine base, whereas the same 10-year minimum was triggered by
possessing with intent to distribute 5,000 grams of cocaine powder. Dorsey v. United States, 132 S. Ct.
2321, 2327 (2012). The disparity was reduced in the 2010 Fair Sentencing Act. Id. at 2329.
relief.‟” Payne v. United States, 78 F.3d 343, 347 (8th Cir. 1996) (quoting Wade v. Armontrout,
798 F.2d 304, 306 (8th Cir. 1986)). The Court may dismiss a claim “„without an evidentiary
hearing if the claim is inadequate on its face or if the record affirmatively refutes the factual
assertions upon which it is based.‟” Shaw, 24 F.3d at 1043 (citation omitted).
I. Constitutionality of 100-to-1 Ratio
Bess claims first that he is entitled to a reduced sentence because the 100-to-1 sentencing
ratio under the 1986 Anti-Drug Abuse Act was unconstitutional. (Support Brief at 2; Reply Brief
at 4). The Government responds that this claim is not properly before the Court because, in his
Plea Agreement, Bess waived his right to raise it on collateral review. (Government‟s Response
Brief at 5); see also DeRoo v. United States, 223 F.3d 919, 923 (8th Cir. 2000). The Government
responds further that Bess may not raise this claim on collateral review because Bess
procedurally defaulted the claim by failing to raise it on direct appeal. (Government‟s Response
Brief at 5-6); see also Jennings v. United States, 696 F.3d 759, 762-63 (8th Cir. 2012). Bess
argues that neither waiver nor procedural default bars consideration of his claim.
Bess argues first that his “plea agreement does not bar this claim because he pleaded
guilty to an offense under 21 U.S.C. § 841(b)(1)(A) (possession of 127.47 grams of crack
cocaine carrying a mandatory minimum of „not . . . less than years‟ [sic]), which is a nonexistent
offense. The existing offense is under § 841(b)(1)(B) (carrying a mandatory minimum of „not . . .
less than 5 years‟ for ‟28 grams or more‟ but less than 280 grams of cocaine base).” (Reply Brief
at 4-5). Bess seems to be arguing that because the penalty attached to it has been reduced in
accordance with the 2010 Fair Sentencing Act, Dorsey v. United States, 132 S. Ct. 2321, 2329
(2012), the crime to which he pleaded guilty did not exist at the time of his plea and could
therefore not have served as the basis for a valid plea. Id. at 5.3
This argument is without merit. The offense Bess pleaded guilty to is described in the
Plea Agreement as possession “with the intent to distribute over 50 grams of a mixture or
substance which contained a detectable amount of cocaine base, crack.” (Plea Agreement at 8).
The general action involved, possession with the intent to distribute a controlled substance, was
at the time of his plea and is still an offense included in 21 U.S.C. § 841(a)(1). (Plea Agreement
at 8). That statute makes it unlawful “to manufacture, distribute, or dispense, or possess with
intent to manufacture, distribute, or dispense, a controlled substance[.]” The term “controlled
substance” was and is defined in 21 U.S.C. § 812, and cocaine was and is included in that
definition. 21 U.S.C. § 812, Schedule II(a)(4). This § 812 definition encompassed and
encompasses cocaine base. See, e.g., Sanders v. United States, 237 F.3d 184 (2d Cir. 2001).
The portion of Bess‟s offense that has changed is the penalty that would have attached
had Bess been sentenced after the 2010 Fair Sentencing Act went into effect. Dorsey, 132 S. Ct.
at 2335; 21 U.S.C. § 841(b)(1)(A)(iii). At the time of Bess‟s guilty plea, the amount of cocaine
base that triggered a 10-year minimum sentence was 50 grams. Dorsey, 132 S. Ct. at 2327.
Because of the 2010 Fair Sentencing Act, the same penalty is now triggered by 280 grams of
cocaine base. Id. at 2329. But this change has no impact on whether the offense to which Bess
pleaded guilty existed at the time of his plea. Indeed, even after the changes made under the 2010
Fair Sentencing Act, possession with intent to distribute more than 50 grams of cocaine base
would be an offense to which one could plead guilty. It may be unlikely that a plea agreement
Bess also argues that the waiver was not knowing and voluntary “because he did not know that his
offense does not subject him to a 10-year mandatory minimum sentence [sic].” (Reply Brief at 5). This
claim is flatly contradicted by the record. The Plea Agreement states explicitly what the minimum
sentence would be for Bess‟s crime. (Plea Agreement at 8). The sentencing court also explained to Bess
what the low end of his sentencing range would be. (Plea Colloquy Transcript at 7).
would use “50 grams,” since that amount no longer triggers a minimum sentence. Nevertheless,
the exact language used in Bess‟s Plea Agreement remains an offense. That fact cannot be
changed simply because the offense would carry a five-year rather than a 10-year minimum
In short, Bess pleaded guilty to an existing offense. The partial waiver of his collateral
review rights, which bars his claim that the 100-to-1 ratio was unconstitutional, is therefore
Bess‟s next argument is that he did not procedurally default his first claim because he has
proven actual innocence by demonstrating that he pleaded guilty to a crime that does not exist.
(Reply Brief at 6). This argument fails for the reason Bess‟s waiver argument fails: Bess validly
pleaded guilty to possession with intent to distribute more than 50 grams of cocaine base. (Plea
Agreement at 8). Because Bess has presented no new factual evidence to call his guilt on this
count into question, he cannot make use of the actual innocence “gateway” to argue the merits of
his claim. Schlup v. Delo, 513 U.S. 298, 316 (1995); Brownlow v. Groose, 66 F.3d 997, 999 (8th
II. Ineffective Assistance of Counsel
Bess next makes two ineffective assistance of counsel claims. (Support Brief at 12; Reply
Brief at 5-6, 9-10). Both of these claims are cognizable on collateral review. (Plea Agreement at
3); Massaro v. United States, 538 U.S. 500, 504 (2003).
In order to prevail on an ineffective assistance of counsel claim, a claimant must show
that his attorney‟s performance was “deficient,” and “that the deficient performance prejudiced
the defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984). “The benchmark for judging
any claim of ineffectiveness must be whether counsel‟s conduct so undermined the proper
functioning of the adversarial process that the trial [or other proceeding at which the defendant
was entitled to effective counsel] cannot be relied on as having produced a just result.” Id. at 686.
Demonstration of the performance prong is not an easy task because counsel is “strongly
presumed to have rendered adequate assistance and made all significant decisions in the exercise
of reasonable professional judgment.” Id. at 690. To overcome this presumption, Petitioner
must prove that, “in light of all the circumstances, the identified acts or omissions were outside
the wide range of professionally competent assistance.” Id.
And even if a claimant satisfies the performance component of the analysis, he is not
entitled to relief unless he can prove sufficient prejudice. Id. at 691. To demonstrate sufficient
prejudice, the claimant must show “a reasonable probability that, but for counsel‟s
unprofessional errors, the result of the proceeding would have been different.” Id. at 694. A
reasonable probability is “a probability sufficient to undermine confidence in the outcome.” Id.
A. Failure to Argue Unconstitutionality of 100-to-1 Ratio
Bess first claims his defense counsel was ineffective for failing to raise the argument that
the “100-to-1” sentencing disparity between cocaine powder and cocaine base under the 1986
Anti-Drug Abuse Act was unconstitutional. (Support Brief at 12). The crux of his claim is that
the 2010 Fair Sentencing Act, which reduced the severity of the sentencing disparity, evidences a
likelihood that this unconstitutionality argument would have been successful. (Support Brief at
5-8). Bess argues that he was therefore prejudiced by his attorney‟s failure to raise this argument.
(Support Brief at 12).
The Court finds Bess‟s first argument unpersuasive. As the Government correctly notes,
“[t]he Eighth Circuit has repeatedly upheld the constitutionality of the crack cocaine range of
punishment and the 100-to-1 ratio.” (Government‟s Response Brief at 6 (citing United States v.
Lewis, 90 F.3d 302 (8th Cir. 1996); United States v. Clary, 34 F.3d 709 (8th Cir. 1994)).4 At the
time of Bess‟s sentencing, then, there was established Eighth Circuit law on the question of
whether the 100-to-1 ratio was constitutional.
It would undoubtedly be acceptable, and perhaps even desirable, for an attorney to
challenge an established law if the attorney has an adequate reason to believe the law could be
overturned. But an attorney does not act outside of the wide range of acceptably competent
assistance by failing to do so. Hamberg v. United States, 675 F.3d 1170, 1173 (8th Cir. 2012) (“it
cannot be considered professionally unreasonable for counsel to fail to object to the correct
application of settled law within our circuit”). Bess‟s attorney therefore cannot be deemed to
have been ineffective for failing to argue that the 100-to-1 ratio was unconstitutional.
B. Failure to Argue for Below-Minimum Sentence
Bess next claims that his defense counsel was ineffective for failing to argue, in light of
Kimbrough v. United States, 552 U.S. 85 (2007) and Spears v. United States, 555 U.S. 261
(2009), that the sentencing court had the discretion to impose a sentence below the 10-year
minimum required by the 1986 Anti-Drug Abuse Act. The Kimbrough court held that the portion
of the United States Sentencing Guidelines (“Sentencing Guidelines”) related to sentencing
ranges for cocaine base and cocaine powder are, in accordance with United States v. Booker, 543
U.S. 220 (2005), merely advisory. In other words, a court faced with sentencing a defendant who
is guilty of a crime involving cocaine base may depart from the ratio recommended in the
Sentencing Guidelines. Id. at 110. The purpose of Spears was to clarify Kimbrough‟s holding by
recognizing “district courts‟ authority to vary from the crack cocaine Guidelines based on policy
Bess effectively concedes that the Eighth Circuit has upheld the 100-to-1 ratio but makes the argument
that the Eight Circuit was incorrect in Clary to overturn the district court‟s determination that the ratio
was unconstitutional. (Support Brief at 3).
disagreement with them, and not simply based on an individualized determination that they yield
and excessive sentence in a particular case.” Spears, 555 U.S. at 264 (emphasis in original).
But the holdings in Kimbrough and Spears could have provided no relief to Bess at
sentencing. Bess received the statutory 10-year minimum set forth in the 1986 Anti-Drug Abuse
Act. Kimbrough and Spears state only that sentencing courts have the discretion to depart from
ranges set out in the Sentencing Guidelines. Both cases make plain that sentencing courts are still
obligated to adhere to statutory minimums. Kimbrough, 552 U.S. at 105 (explaining that after
Booker sentencing courts are not required “to adhere to the 100-to-1 ratio for crack cocaine
quantities other than those that trigger the statutory minimum sentences”); Spears, 555 U.S. at
266-67 (noting with approval the sentencing court‟s determination “that a [statutory] mandatory
minimum sentence was required”). Bess therefore was not prejudiced by his attorney‟s failure to
argue that Bess could have been given a lower sentence under Kimbrough and Spears, and
Bess‟s attorney did not act unreasonably by failing to make such an argument.
IT IS HEREBY ORDERED that movant Kevin Bess‟s Motion to Vacate, Set Aside, or
Correct Judgment pursuant to 28 U.S.C.§ 2255 is DENIED and DISMISSED WITH
PREJUDICE. A separate Order of Dismissal will accompany this Memorandum and Order.
IT IS FURTHER ORDERED that, because Movant Kevin Bess cannot make a
substantial showing of the denial of a constitutional right, the Court will not issue a certificate of
appealability. See 28 U.S.C. § 2253(c).
Dated this 17th
Day of February, 2014
/s/ Jean C. Hamilton
UNITED STATES DISTRICT JUDGE
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