Lakes v. United States of America

Filing 42

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that Petitioners Motion and Amended Motion to Vacate, Correct or Set aside his sentence pursuant to 28 U.S.C. § 2255 are DENIED. (Doc. Nos. 1 & 9.) Signed by District Judge Audrey G. Fleissig on 6/27/2014. (NCL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
W.T. CORTEZ LAKES,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

)
)
)
)
)
)
)
)
)

Case No. 4:12CV00621 AGF

MEMORANDUM AND ORDER
This matter is before the Court on the motion of federal prisoner Cortez Lakes to
vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255 (“Motion to Vacate”).
Petitioner pled guilty in this Court to a one-count indictment as a felon in possession of a
firearm in violation of Title 18 U.S.C. § 922(g). He was sentenced to 102 month term of
incarceration and a three-year term of Supervised Release.
Petitioner asserts four grounds for relief under 28 U.S.C. § 2255.
In Ground One, he asserts that plea counsel was ineffective because he should
have known that the application of a four level enhancement under §2K2.1(b)(6) and a
six level enhancement under §3A1.2(c)(1) of the United States Sentencing Guidelines
(“USSG”) was improper, and failed to make Petitioner aware of the enhancement during
plea negotiations, rendering his plea unknowing and involuntary.
In Ground Two, Petitioner asserts that plea counsel was ineffective because he
knew or should have known that the Court, at the time of his plea, failed to clearly state,

as required under Federal Rule of Criminal Procedure 11, the maximum time period to
which Petitioner could be sentenced based on his prior convictions. Petitioner contends
that as a result of plea counsel’s failure to correct the alleged error in the Rule 11 plea
colloquy, and Petitioner’s lack of knowledge as to the maximum sentence, Petitioner’s
plea was neither knowing nor voluntary.
In Ground Three, Petitioner asserts that plea counsel was ineffective because plea
counsel assured him that he would serve no more than a five-year sentence and never
informed him of the possibility that his criminal offense level could be higher due to the
application of the two USSG enhancement provisions. Petitioner also asserts that during
the plea negotiations, plea counsel failed to communicate an offer from the Government
to recommend a five-year sentence in exchange for his guilty plea.
Finally, in Ground Four, Petitioner asserts that plea counsel was ineffective
because he knew or should have known that §§ 2K2.1(b)(6) and 3A1.2(c)(1) of the USSG
were not applicable to Petitioner’s sentence, yet failed to prevent the application of these
provisions and the enhancement to Petitioner’s criminal offense level. He further asserts
that he pled guilty based on counsel’s inaccurate and improper advice, rendering his plea
unknowing and involuntary.
In his supplemental filings, Petitioner further asserts that from the outset, he
intended to plead guilty; that counsel advised him the maximum sentence would be five10 years; and that counsel failed to advise him that the government would seek
enhancements raising the maximum sentence to 168 months. Petitioner further asserts
-2-

that the prosecutor, in a later debriefing, asked Petitioner why he did not accept the
“original” plea offer of 60 months.
For the reasons set forth below, Petitioner’s Motion to Vacate will be denied.
BACKGROUND
I. Facts
The Court adopts the following stipulation of facts set forth in the plea agreement
between the parties.
On March 12, 2010, in the City of St. Louis, within the Eastern
District of Missouri, [Petitioner], having been convicted previously of a
felony crime punishable by a term of imprisonment exceeding one year
under the laws of the State of Missouri, did knowingly possess a firearm; to
wit: one Smith & Wesson, model MP45, .45 auto caliber semi-automatic
pistol, bearing serial number MPR9509, which traveled in interstate or
foreign commerce during or prior to being in [Petitioner’s] possession.
On March 12, 2010, St. Louis Metropolitan Police Department
(“SLMPD”) detectives were on patrol in the 5500 block of Thrush, in the
City of St. Louis, within the Eastern District of Missouri. The detectives
saw [Petitioner] and another subject walking down the street, and observed
[Petitioner] adjust a concealed item in his waistband. The officers
identified themselves as police and asked to speak to [Petitioner].
[Petitioner] fled on foot. As [Petitioner] fled, he retrieved a semi-automatic
pistol from his waistband. [Petitioner] continued running, ejected the
magazine from the pistol, and separately discarded the pistol and magazine
to the ground.
The detectives apprehended [Petitioner] and recovered the pistol and
magazine from the ground. The pistol was loaded with one live round in
the chamber, and the magazine was loaded with ten live rounds.
The detectives advised [Petitioner] of his Miranda rights, and
[Petitioner] voluntarily, knowingly, and intelligently executed a waiver of
rights form. [Petitioner] first denied possessing the pistol. [Petitioner] then
admitted that his fingerprints would be on the pistol and that he possessed
the pistol, even though the police officers did not find the pistol on him.
-3-

The pistol was submitted to the St. Louis Metropolitan Police
Laboratory for analysis. The lab confirmed that the Smith & Wesson .45
caliber semi-automatic pistol was manufactured in Springfield,
Massachusetts, and therefore was transported across state lines and in
interstate commerce. The pistol is a model MP45, bearing serial number
MPR9509. The lab test-fired the pistol and it functioned as designed.
A review of certified court records revealed that [Petitioner]
previously was convicted of three counts of assault first degree and one
count of endangering the welfare of a corrections officer. Each of these
previous convictions is a felony crime punishable by a term of
imprisonment exceeding one year.
[Petitioner] and the Government agree that the facts set forth above
are true and may be considered “relevant conduct” pursuant to Sentencing
Guidelines § 1B1.3.
See Case No. 4:10CR00412AGF-1, Doc. No. 39 (“Plea Agreement”) at 9.
II. Procedural History
On July 28, 2010, the United States Grand Jury charged Petitioner in a one-count
indictment as a felon in possession of a firearm in violation of Title 18 U.S.C. § 922(g).
Petitioner entered a plea of not guilty and following a series of pretrial motions not
pertinent here, trial was set for January 3, 2011. On December 14, 2010, instead of
proceeding to trial, Petitioner elected to enter a guilty plea to the single-count indictment.
The Plea Agreement reflects that the parties agreed that Petitioner’s Base Offense
Level under the USSG was either 14, 20 or 24. See Plea Agreement, at 6. The Plea
Agreement specifically reflects that parties did not agree on the question of whether four
levels should be added pursuant to Sentencing Guideline § 2K2.1(b)(6), for using or
possessing any firearm or ammunition in connection with another felony offense. The
-4-

Government recommended that the four level enhancement should apply; Petitioner
recommended that it should not. Id. Similarly, the Plea Agreement expressly recognizes
that the parties disagreed whether six levels should be added pursuant to § 3A1.2(c)(1)
for assaulting a law-enforcement officer, and noted that Petitioner recommended that it
not apply. Id. The Plea Agreement further allowed for a three level reduction in the
offense level for acceptance of responsibility and stated the parties’ agreement that
Petitioner’s Total Offense Level would be no lower than 12 and no higher than 31. Id. at
p. 7.
During the December 14, 2010 plea proceeding Petitioner appeared with counsel
and pleaded guilty as charged. Petitioner took an oath to tell the truth and was asked
questions, the purpose of which was to establish that the plea was both knowing and
voluntary. See Case No. 4:10CR00412AGF-1, Doc. No. 88 (“Plea Hearing Tr.”) at 4.
Specifically, the Court questioned Petitioner regarding such matters as his age, the extent
of his education, whether he was under the influence of alcohol or any drug, and whether
he suffered from any mental disease or defect. Id. at 4-6. Petitioner gave appropriate
responses to all the questions asked. Id.
The Court also advised Petitioner of the charges to which he was pleading guilty.
Id. at 7. Petitioner stated under oath that his attorney had explained the charges to him,
and that he understood the charges. He also confirmed that he was satisfied with the
representation that his counsel had provided. Id. at 7-8. The Court then reviewed with

-5-

Petitioner the provisions of the Plea Agreement, including the possible enhancement of
the offense level.
THE COURT: All right. And the parties set out in this agreement
that there is no agreement as to whether four levels should be added under
2K2.1(b)(6) for using or possessing a firearm in connection with another
felony offense. You understand the government at your sentencing is going
to argue to me that those points should apply, and your attorney is going to
be free to argue at that sentencing hearing that they should not apply. Do
you understand that?
DEFENDANT: Yes.
THE COURT: All right. And the parties are also disagreeing
whether points under 3A1.2(c)(1), whether six levels should be added for
assaulting a law enforcement officer. And, again, the government at
sentencing is reserving the right to argue that those six levels should be
added, and you are reserving the ability to argue that those six levels should
not be added. Do you understand that?
DEFENDANT: Yes.
THE COURT: All right, Now, if we were to go through those points
under the Guidelines at the bottom of page 7, the parties are estimating that
the total offense level for you would be not less than 12 and not higher than
31, depending upon your criminal history, whether those two additions that
I talked to you about for using or possessing a firearm in connection with
another felony offense or assaulting a law enforcement officer will apply.
You understand that?
DEFENDANT: Yes.
THE COURT: So you understand, sir that a whole lot of where you
may end up in the Sentencing Guidelines is going to depend not only on
whether I find those offense characteristics should apply, but also what
your criminal history category is. Do you understand that?
DEFENDANT: Yes.
Plea Hearing Tr. at 18-20.
The Court also advised Petitioner of the maximum sentence that he could receive
for the charged offense.
THE COURT: All right. And continuing on this same page, on page
11, it sets out the maximum terms of imprisonment, the maximum penalties
for this offense. And those are a term of imprisonment of not more than ten
-6-

years, a fine of not more than $250,000, or both. And in addition, I could
impose a period of supervised release of not more than three years. Do you
understand that, sir?
DEFENDANT: Yes.
THE COURT: And you understand, sir, that also based upon your
criminal history, it is possible that under 18 U.S.C. Section 924(e) and the
Sentencing Guidelines that I discussed with you previously, that you could
be subject to an enhanced penalty. Do you understand that?
DEFENDANT: Yes.
THE COURT: And that could carry a mandatory minimum sentence
of 15 years, a maximum sentence of life, an enhanced criminal history
category, and an enhanced offense level. Do you understand that?
DEFENDANT: Yes.
THE COURT: Now, you are retaining the right to litigate those
questions at the time of your sentencing, but you understand that you could
potentially be exposed to those enhanced maximum penalties. Do you
understand that, sir?
DEFENDANT: Yes.
THE COURT: All right. And do you understand, sir, by pleading
guilty you are subjecting yourself to the maximum penalties that I have just
described to you.
DEFENDANT: Yes.
Plea Tr., pp. 23-25.1
Thereafter, the Court asked Petitioner whether there had been any threats or
promises made in exchange for Petitioner’s guilty plea, and he responded that
there had not. Id. at 25-26. The Court then accepted Petitioner’s guilty plea, set
the matter for sentencing, and ordered a Presentence Investigation Report (“PSR”).
Id. at 30.

1

The Plea Agreement also specifically states that Petitioner could be subject to a
mandatory minimum sentence of 15 years, and an enhanced offense level and criminal
history category under 18 U.S.C. § 924(c) and Sentencing Guideline § 4B1.4. Plea
Agreement, at 11.
-7-

The PSR issued by the United States Probation Office after Petitioner’s plea
identified Petitioner’s Base Offense Level as 20, in light of the fact that Petitioner had
committed the instant offense after sustaining one felony conviction for a crime of
violence, Assault in the 1st Degree. See Case No. 4:10CR00412AGF-1, Doc. No. 40
(“PSR”) at ¶ 15. The Probation Office also recommended the addition of four offense
levels for possessing the firearm in connection with another felony, and the addition of
six levels for assaulting a law enforcement officer during the course of the offense or
immediate flight therefrom. Id. at ¶¶16, 17. The Probation Office did not allow for a
reduction predicated on acceptance of responsibility, and assigned Petitioner a Total
Offense Level of 30. Id. at ¶ 23. Finally, the PSR assigned Petitioner a Criminal History
Category of IV, resulting in an advisory sentencing guideline range of 145 to 168 months.
Id. at ¶ 40. However, because the statutory maximum sentence was ten years,
Petitioner’s guideline range was set at 120 months. Id. at ¶ 63.
Plea counsel filed written objections to the PSR on Petitioner’s behalf challenging
the four level enhancement for possessing a firearm in connection with another felony
offense and the six level enhancement for assault of a law enforcement officer. See Case
No. 4:10CR00412AGF-1, Doc. No. 41.
Thereafter, the Government filed a Motion to Withdraw Acceptance of
Responsibility after the Government learned that Petitioner, who was detained pending
the resolution of his case, assaulted and stabbed another inmate at the St. Louis City
Justice Center on May 31, 2011. See Case No. 4:10CR00412AGF-1, Doc. No. 56. The
-8-

Government declined to move for the third point for acceptance of responsibility and
indicated it would oppose the remaining two levels of acceptance of responsibility as
well. Id. In response, Petitioner asserted that he had not assaulted or stabbed an inmate
at the Justice Center and opposed the Government’s change of position with respect to
the reduction for acceptance of responsibility. See Case No. 4:10CR00412AGF-1, Doc.
No. 67.
Petitioner appeared for sentencing on July 29, 2011. At that time, the Court heard
evidence with respect to Petitioner’s objections regarding enhancement of the offense
level. The Government presented the testimony of Officers Blake Whitzman and James
Kenney of the Saint Louis Metropolitan Police Department and plea counsel crossexamined these witnesses. Following this testimony, the Court overruled Petitioner’s
objections to the proposed enhancements and found that the four level enhancement for
use of a firearm in connection with another felony offense was warranted. See Case No.
4:10CR00412AGF-1, Doc. No. 90, July 29, 2011 Sentencing Hearing Transcript (“Sent.
Tr. I”) at 55. The Court also found that the evidence supported application of the six
level enhancement for assaulting a police officer. Id. at 56-57. Finally, the Court
determined that the application of both enhancements was not unduly cumulative. Id. at
58.
At the request of plea counsel, the Court continued the hearing on the remainder of
the sentencing issues until September 9, 2011. At that time, the Court heard evidence
with respect to application of the three-point reduction for acceptance of responsibility in
-9-

light of the allegation that Petitioner assaulted another inmate while incarcerated at the St.
Louis Justice Center. The Government presented two witnesses, Felicia Norman, a
corrections officer; and Lieutenant Alicia Maston-Gooch, both of whom were employed
at the St. Louis City Justice Center. See Case No. 4:10CR00412AGF-1, Doc. No. 89,
September 9, 2011 Sentencing Hearing Transcript (“Sent. Tr. II”) at 5-19 & 30-36. Plea
counsel cross-examined these witnesses with respect to issues bearing on the alleged
assault and argued that Petitioner should receive a three level reduction in the offense
level for acceptance of responsibility. Id. at 19-24 & 36-39. Following the presentation
of testimony and argument, the Court found that Petitioner had committed the assault and
was not entitled to a reduction in his offense level for acceptance of responsibility, and
further held that the ten level enhancement of the offense level applied. Id. at 46-47.
After hearing all of the evidence relevant to the offense level and criminal history
category and ruling on all of the objections, the Court assigned Petitioner a Total Offense
Level of 30 and a Criminal History Category of IV, resulting in an advisory sentencing
guideline range of 135 to 168 months. Id. at 48. However, due to the 120 month
statutory maximum sentence for the charge of being a felon in possession of a firearm,
Petitioner’s final Guideline range was 120 months. Id.
The Court then turned to testimony regarding Petitioner’s motion for a downward
variance and application of the sentencing factors under 18 U.S.C. § 3553. Dr. Rosalyn
Schultz, Ph.D., testified on behalf of Petitioner that he exhibited major depressive
disorder, mildly retarded intellectual functioning, ADHD, Post-Traumatic Stress
- 10 -

Disorder, asthma, and marked situational stresses. Id. at 50-114. Following this
testimony, the Court granted Petitioner’s motion for downward variance and imposed a
sentence of 102 months’ incarceration and a three year term of Supervised Release. Id. at
117.
Although the Plea Agreement expressly preserved his right to appeal the sentence
to the Eighth Circuit Court of Appeals, Petitioner did not file a direct appeal.
III. Motion for Post-Conviction Relief and Hearing
On April 5, 2012, Petitioner filed a timely motion for post-conviction relief under
28 U.S.C. § 2255. He thereafter amended his motion and the Government responded to
the amended motion. Petitioner did not file a traverse, and the time to do so has expired.
On October 29, 2012, the Court appointed counsel to represent Petitioner in this matter
and scheduled a hearing with respect to Petitioner’s assertion that plea counsel failed to
transmit to Petitioner an offer from the Government to recommend a five-year sentence
in exchange for the guilty plea. On January 4, 2013, the Court held a hearing at which
the parties presented testimony and argument with respect to this issue.
In summarizing the testimony presented at the hearing, the Court first notes that it
generally credits the testimony of Assistant United States Attorney, Cris Stevens, and
plea counsel, Assistant Federal Public Defender Sean Vicente. Where the testimony of
these individuals conflicts with that of Petitioner, the Court finds that their testimony was
credible and Petitioner=s testimony was not.
A. Stevens’ Testimony
- 11 -

Mr. Stevens testified that the terms set forth in the Plea Agreement constituted the
only offer made by the Government and communicated to Mr. Vicente in this case. He
further testified that the parties’ intention with respect to the Plea Agreement was to
express their agreement with respect to the base offense level but not to refer to a
recommended sentence of specific length and to reserve the question of enhancements for
resolution by the Court at sentencing. In addition, Mr. Stevens testified that he had no
conversations with Petitioner before, during, or after the plea proceedings in the
courtroom, at the City Justice Center, or at any other location. Mr. Stevens further
testified that there was no proffer session with Petitioner either before or after his plea.
B. Vicente’s Testimony
Mr. Vicente testified that the Government made only a single plea offer in this
case. He further testified that he met with the Petitioner before and after the plea and that
after the plea Petitioner was housed at the Phelps County Jail due to allegations that he
had been involved in a stabbing incident at the City Justice Center. Mr. Vicente next
testified that when he met with Petitioner after the plea but prior to sentencing, he told
Petitioner that he would ask for and that Petitioner might receive a 60 month sentence.
He further testified, however, that he told Petitioner that he should expect a sentence of
120 months due to his criminal history and the enhancements that might apply due to
Petitioner=s brandishing of a weapon during the offense conduct.
In addition, Mr. Vicente testified that he recognized that Petitioner was “mentally
slow” and had therefore tailored his explanation of the possible sentence to make it
- 12 -

simple and understandable to Petitioner. Specifically, he noted that he did not
communicate with Petitioner by way of letter or other written documents. Finally, Mr.
Vicente testified that he was painstaking when discussing these matters with Petitioner
and emphasized the likelihood that Petitioner would receive a sentence at the higher end
of the possible range.
C. Petitioner’s Testimony
Petitioner testified that he met with Mr. Vicente at the Phelps County Jail after he
entered his plea and that Mr. Vicente told him that he was going to receive a sentence of
five years. He further testified that the Assistant United States Attorney, Mr. Stevens,
visited him at the City Justice Center at some time between his plea and his sentencing,
and asked him to “rat someone out,” but that he refused to do so. Petitioner also testified
that during that visit Mr. Stevens had asked him “why he didn’t take the sixty months.”
Petitioner testified that Mr. Vicente was not present at this meeting. Finally, Petitioner
stated that he was sentenced to 102 months but did not realize that 102 months was not
five years until he met with a counselor in the Allenwood, Pennsylvania facility where he
is housed.
APPLICABLE LAW
Pursuant to 28 U.S.C. § 2255, a defendant may seek relief on grounds that the
sentence was imposed in violation of the Constitution or law of the United States, that the
court lacked jurisdiction to impose such a sentence, that the sentence exceeded the
maximum authorized by law, or that the sentence is otherwise subject to collateral attack.
- 13 -

28 U.S.C. § 2255. “[A] collateral challenge [under § 2255] may not do service for an
appeal.” United States v. Frady, 456 U.S. 152, 165 (1982). Instead, to warrant relief
under § 2255, the movant must identify an error that amounts to a fundamental
miscarriage of justice. Davis v. United States, 417 U.S. 333, 346 (1974); Hill v. United
States, 368 U.S. 424, 428 (1962).
To succeed on an ineffective assistance of counsel claim, a petitioner must show
that counsel’s performance was deficient and that the deficient performance prejudiced
the petitioner’s case. Strickland v. Washington, 466 U.S. 668, 687 (1984); United States
v. Sera, 267 F.3d 872, 874 (8th Cir. 2001); DeRoo v. United States, 223 F.3d 919, 925
(8th Cir. 2000). An attorney’s performance is deficient if it falls “below an objective
standard of reasonableness.” Strickland, 466 U.S. at 687-88; Sera, 267 F.3d at 874. A
petitioner “faces a heavy burden” to establish ineffective assistance of counsel pursuant
to section 2255. DeRoo, 223 F.3d at 925. When reviewing counsel’s performance, a
court must avoid using “the distorting effects of hindsight” and must evaluate the
reasonableness of counsel’s conduct “from counsel’s perspective at the time.”
Strickland, 466 U.S. at 689. In addition to proving a deficiency in counsel’s
performance, the petitioner also must prove that “any deficiencies in counsel’s
performance must be prejudicial to the defense in order to constitute ineffective
assistance under the Constitution.” Id. at 692.
The burden is on the petitioner to prove, by a preponderance of the evidence, that
“there is a reasonable probability that, but for counsel’s unprofessional errors, the result
- 14 -

of the proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694; DeRoo,
223 F.3d at 925.
Any claim for ineffective assistance of counsel faces two significant impediments.
First, a petitioner must overcome the ‘“strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance.’” United States v. Rice, 449
F.3d 887, 897 (8th Cir. 2006) (quoting Strickland, 466 U.S. at 689); Sera, 267 F.3d at
874; see also Ford v. Lockhart, 904 F.2d 458, 462 (8th Cir. 1990) (holding that the
evaluation of a claim of ineffective assistance of counsel is highly deferential and subject
to a strong presumption that counsel acted competently). In addition, a petitioner
confronts the legal principle that ‘“strategic choices made after thorough investigation of
law and facts . . . are virtually unchallengeable.’” Rice, 449 F.3d at 897 (quoting
Strickland, 466 U.S. at 690).
The Sixth Amendment right to counsel extends to the plea-bargaining process and
therefore, a defendant is “entitled to the effective assistance of competent counsel” during
plea negotiations. Lafler v. Cooper, 132 S. Ct. 1376, 1384 (2012); see also Missouri v.
Frye, 132 S. Ct. 1399, 1405 (2012), Padilla v. Kentucky, 559 U.S. 356, 373 (2010); Hill
v. Lockhart, 474 U.S. 52, 58 (1985). In addition, the Strickland standard applies to guilty
plea challenges premised upon allegations of ineffective assistance of counsel. Lockhart,
474 U.S. at 58. To satisfy the “prejudice” requirement under Strickland, a petitioner must
show “there is a reasonable probability that, but for counsel’s errors, he would not have
- 15 -

pleaded guilty and would have insisted on going to trial.” Id. at 59. In other words, a
petitioner “must show the outcome of the plea process would have been different with
competent advice.” Lafler, 132 S. Ct. at 1384.
Finally, “‘[i]f it is easier to dispose of an ineffectiveness claim on the ground of
lack of sufficient prejudice,’” a court need not determine whether a petitioner meets the
“performance” prong of the Strickland test. Young v. Bowersox, 161 F.3d 1159, 1160
(8th Cir. 1998) (quoting Strickland, 466 U.S. at 697); see also Kingsberry v. United
States, 202 F.3d 1030, 1032 (8th Cir. 2000) (explaining that a reviewing court need not
address both components of the Strickland test if a petitioner makes an insufficient
showing on one component).
DISCUSSION
I. Ground One: Failure to Make Petitioner Aware of Enhancements
With respect to Petitioner’s first ground for relief, the Court concludes that the
record refutes Petitioner’s assertion that plea counsel was ineffective because he should
have known that the ten level enhancement was erroneous, or that his failure to advise
Petitioner of the enhancement caused the plea to be involuntary.
First, inasmuch as the Plea Agreement recites the Petitioner’s objection to the
enhancements and reserves the resolution of this dispute for the Court at sentencing, it is
apparent that plea counsel was aware of and challenged application of the ten level
enhancement during the negotiation of the Plea Agreement. See Plea Agreement at 6. In
addition, plea counsel filed objections to the portion of the PSR that recommended
- 16 -

applying each of the enhancements to Petitioner’s base offense level. See Case No.
4:10CR00412AGF-1, Doc. No. 41 at 1. The record also indicates that at the sentencing
hearing, plea counsel cross-examined the Government’s witnesses with respect to the
factual underpinnings of the enhancement criteria and urged the Court to find that the
enhancements should not be applied. Sent. Tr. I at 36-40 & 45-47.
In addition, the Court finds no basis for Petitioner’s assertion that he was unaware
of these possible enhancements at the time of his plea. The Plea Agreement explicitly
states that, depending upon the Court’s resolution of the issue, a ten level enhancement
might apply to the calculation of Petitioner’s offense level. The Court must presume that
Petitioner was aware of this information because the record indicates that Petitioner
stated under oath that he had read the Plea Agreement before signing it, that he had talked
with his attorney about its contents and meaning, and that he “clearly” understood
everything in it. See Plea Tr. at 11. Petitioner’s own testimony on the record plainly
refutes his assertion that counsel failed to advise him of the possible application of the
enhancements. Furthermore, the Court finds that plea counsel’s efforts here clearly fall
within ‘“the wide range of professionally competent assistance.’” Wrolstad v. United
States, No. 1:10-CV-202 CAS, 2014 WL 897386, at *6 (E.D. Mo. Mar. 6, 2014) (quoting
McReynolds v. Kemna, 208 F.3d 721, 723 (8th Cir. 2000)). Therefore, the Court cannot
say that plea counsel’s representation of Petitioner was constitutionally lacking in this
respect.

- 17 -

Moreover, even if the Court were to assume that plea counsel failed to inform
Petitioner of the possible increase in the offense level, the transcript of the plea
proceeding belies Petitioner’s assertion that he was unaware of that possibility. During
that proceeding, the Court thoroughly reviewed with Petitioner the terms of the Plea
Agreement emphasizing the possibility of the ten level enhancement and the fact that no
one could predict what sentence the Court might impose. Plea Tr. at 18-20. Even if plea
counsel had not discussed these issues with Petitioner, the record establishes that the
Court certainly did and that Petitioner stated under oath that he understood the issues and
had no additional questions.
Finally, the Court concludes that Petitioner cannot make the showing of prejudice
required to establish this claim of ineffective assistance. Apart from Petitioner’s selfserving assertions, there is no evidence whatsoever that Petitioner would have proceeded
to trial. Petitioner simply has not shown that ‘“there is a reasonable probability that, but
for counsel’s errors, he would not have pleaded guilty and would have insisted on going
to trial.’” Wrolstad, 2014 WL 897386, at *6 (quoting Lockhart, 474 U.S. at 59).2
II. Ground Two: The Rule 11 Colloquy
For his second ground, Petitioner asserts that plea counsel was ineffective because
he knew or should have known that an error occurred during the Rule 11 plea colloquy
and failed to correct the error. Specifically, Petitioner asserts that the Court failed to
2

Indeed, in his own affidavit, Petitioner asserts that he always intended to enter a plea of
guilty, based on his understanding that he would be “facing a maximum sentencing of
five to ten years.” (Doc. No. 25, at 3.) Here Petitioner’s maximum sentence was in fact
ten years.
- 18 -

inform him as required by Federal Rule of Criminal Procedure 11 of “any maximum
possible” penalties for the charged offenses to which he was pleading guilty. Petitioner
further asserts that he did not know and was not told the “maximum possible” penalties
due to his prior convictions, and that this error rendered his plea unknowing and
involuntary. See Doc. No. 9 at p. 6.
“Rule 11 requires the district court to follow certain protocol to ensure a
defendant’s plea is knowing, intelligent, and voluntary.” United States v. Gray, 581 F.3d
749, 752 (8th Cir. 2009). Rule 11(b)(1) provides in relevant part that
[b]efore the court accepts a plea of guilty . . . , the defendant may be placed
under oath, and the court must address the defendant personally in open
court. During this address, the court must inform the defendant of, and
determine that the defendant understands . . . any maximum possible
penalty, including imprisonment, fine, and term of supervised release. . . .
Fed. R. Crim. P. 11(b)(1)(H); see also United States v. Garcia, 604 F.3d 575, 578-80 (8th
Cir. 2010). Rule 11 further provides that: “[a] variance from the requirements of this rule
is harmless error if it does not affect substantial rights.” Fed. R. Crim. P. 11(h).
Upon review of the transcript of the plea proceeding, the Court cannot conclude
that a Rule 11 error occurred here. The transcript clearly establishes that Petitioner was
fully and explicitly informed of the maximum sentence he might receive, namely a ten
year maximum term of imprisonment, unless 18 U.S.C. § 924(e) applied. Plea Tr. at 2325. Petitioner is perhaps confused by the fact that the Guideline range was higher, or by
the possible application of § 924(e). But of course, § 924(e) did not apply, and the
Guideline range was limited by the statutory maximum ten-year penalty. Because there
- 19 -

was no Rule 11 error, plea counsel could not have been ineffective for failing to know of
or act upon such an error.
Moreover, Petitioner cannot demonstrate that he suffered prejudice. In the
absence of an error by counsel, ‘“there is [no] reasonable probability that, but for
counsel’s errors, [Petitioner] would not have pleaded guilty and would have insisted on
going to trial.’” Wrolstad, 2014 WL 897386, at *6 (quoting Lockhart, 474 U.S. at 59).
For these reasons, Petitioner’s second ground for post-conviction relief also is
denied.
III. Ground Three: Failure to Fully Advise Petitioner during Plea Negotiations
Petitioner next argues that plea counsel was ineffective for improperly advising
him that he would serve no more than a five-year sentence, and for failing to advise
Petitioner of the possible ten level enhancement. He further contends that plea counsel
failed during plea negotiations to communicate the Government’s most lenient plea offer
of 60 months. Petitioner asserts that if he had known of these matters, he would have
taken the more lenient plea offer. See Doc. No. 9 at p. 8. Petitioner also argues that as a
result of plea counsel’s failure to advise him of these factors his guilty plea was neither
voluntary nor knowing. See id. at 5.
These arguments also lacks merit. On the basis of the testimony adduced at the
January 4, 2013 hearing, the Court finds no credible basis for Petitioner’s contention that
the Government communicated more than one offer to plea counsel (the offer set forth in
the plea agreement) or that the Government ever offered a 60 month sentence. Although
- 20 -

the testimony indicates that after the parties entered into the Plea Agreement and
Petitioner entered his guilty plea, plea counsel mentioned to Petitioner that there was a
possibility of a five-year sentence, the Court finds that plea counsel discouraged
Petitioner from expecting such a sentence and carefully explained to him why a five-year
sentence was highly unlikely. Indeed, Petitioner’s own affidavit makes plain that counsel
advised him he could be facing a ten year maximum sentence. (Doc. No. 25, at 3.)
For each of these reasons, the Court denies Petitioner’s third ground for relief.
IV. Ground Four: Application of §§ 2K2.1(b)(6) and 3A1.2(c)(1) to the Offense
Petitioner’s final ground for post-conviction relief is similar to his first ground.
Petitioner asserts that plea counsel was ineffective because he knew or should have
known that the enhancement provisions in § 2K2.1(b)(6) and § 3A1.2(c)(1) of the USSG
were not applicable to Petitioner’s criminal offense. Petitioner asserts that plea counsel
failed to investigate the application of these provisions to his offense and to recognize
they did not apply, and therefore provided Petitioner inaccurate advice that the
enhancements applied, that caused his plea to be involuntary. See Doc. No. 9 at p. 9.
This final ground also lacks merit because, as discussed earlier, plea counsel
clearly investigated and challenged the application of the enhancements at every possible
juncture throughout the proceedings. As a result of those challenges, plea counsel
negotiated both an agreement to reserve the issue and present their dispute to the Court at
sentencing, and to permit Petitioner to appeal any sentencing issues. Following the entry
of the guilty plea, plea counsel objected to the recommendation in the PSR with respect
- 21 -

to the enhancement issues, cross-examined the Government’s witnesses on this issue
during the sentencing hearing, and argued to the Court that the enhancements should not
apply. And the transcript reflects that counsel did so ably. Despite these efforts, the
Court disagreed with plea counsel’s position and overruled the objection to their
application. The fact that plea counsel failed to prevail on a disputed legal issue does not
render his performance ineffective.
The Court also rejects Petitioner’s argument that he pled guilty based on his
counsel’s incorrect assessment as to the application of the enhancements. Before the
entry of the guilty plea, the Court and plea counsel informed Petitioner of the dispute,
that final resolution of the dispute was left to the Court, and that the Court might or might
not agree with plea counsel’s position that the enhancements should not apply. Having
been made fully aware at the time of his plea of this issue and its possible effect on his
sentence, Petitioner cannot now complain that the resolution of that legal issue against
him rendered his guilty plea involuntary or unknowing. For this reason, Petitioner’s final
ground for post-conviction relief also will be denied.
CONCLUSION
For the reasons set forth above, the Court concludes that Petitioner is not entitled
to post-conviction relief pursuant to 28 U.S.C. § 2255. Furthermore, the Court does not
believe that reasonable jurists might find the Court’s assessment of Petitioner’s claims for
relief pursuant to 28 U.S.C. § 2255 debatable or wrong, for purposes of issuing a
Certificate of Appealability under 28 U.S.C. § 2253(c)(1), due to Petitioner’s failure to
- 22 -

make a substantial showing that he has been denied a constitutional right. See 28 U.S.C.
§ 2253(c)(2) ; see also Tiedeman v. Benson, 122 F.3d 518, 522 (8th Cir. 1997).
Accordingly,
IT IS HEREBY ORDERED that Petitioner’s Motion and Amended Motion to
Vacate, Correct or Set aside his sentence pursuant to 28 U.S.C. § 2255 are DENIED.
(Doc. Nos. 1 & 9.)

AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 27th day of June, 2014.

- 23 -