Weigle v. United States of America

Filing 8

MEMORANDUM For the reasons discussed above, the court concludes that motion and the files files and records of this case conclusively show that Weigle is not entitled to relief under 28 U.S.C. § 2255 based on any of the claims he asserts in th e motion to vacate.vacate. Therefore, the motion will be denied without a hearing. See Engelen v. United United States, 68 F.3d 238, 240 (8th Cir. 1995). Additionally, the court finds that Weigle has not made a substantial showing of the denial o f a constitutional right. Therefore, the court will not issue a certificate of appealability. See 28 U.S.C. 2253. An order consistent with this memorandum opinion will be filed separately. Signed by District Judge Carol E. Jackson on 12/14/15. (KXS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
STEVEN WEIGLE,
Movant,
v.
UNITED STATES OF AMERICA,
Respondent.

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) No. 4:12-CV-2236 (CEJ)
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MEMORANDUM

This matter is before the court on the motion of Steven Weigle to vacate, set
aside, or correct sentence, pursuant to 28 U.S.C. ' 2255. The United States has filed a
response in opposition, and the issues are fully briefed.
I. Background
After entering into a plea agreement with the government, Weigle pled guilty to
manufacturing more than 50 grams of a mixture or substance containing
methamphetamine, in violation of 21 U.S.C. § 841(a)(1). United States v. Steven
Weigle, Case No. 4:08-CR-119 (CEJ), Guilty Plea Agreement, Doc. #35. A sentence of
imprisonment of not less than five years and not more than 40 years was prescribed
for the offense. 21 U.S.C. § 841(b)(1)(B)(viii).
According to the stipulated facts in the plea agreement, the police searched
Weigle’s home and seized plastic container containing 56.35 grams of a liquid
containing methamphetamine and 22.80 grams of methamphetamine in powder form.
form. Weigle and the government agreed that the liquid or “waste water” from his
illicit manufacturing operation could be considered in determining the total drug
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quantity for purposes of applying the statutory mandatory minimum.

Guilty Plea

Agreement, pp. 4-5. Further, Weigle agreed that he was responsible for manufacturing
manufacturing more than 50 grams but less than 200 grams of methamphetamine.
Specifically, he admitted that his offense involved in excess of 79 grams of
methamphetamine, representing the combined quantities of liquid and powder seized
seized by the police. Id. Finally, Weigle acknowledged in the plea agreement that he
that he understood the penalties for the offense.
During the change of plea hearing, the court questioned Weigle about the
provisions of the plea agreement, including the statement of stipulated facts and the
drug quantity, and informed him that he faced a mandatory minimum sentence of five
years in prison. Weigle stated under oath that he had read the plea agreement and
discussed it with his attorney and that he understood the contents of the document.
He also stated that he understood the penalties he faced. He further stated that he
agreed with the statement of facts in the plea agreement and with the quantity of
drugs attributed to him. Doc. #53, Transcript, pp. 11, 13, 17. At the hearing, the
court asked Weigle whether he specifically agreed “that in calculating the amount of
methamphetamine that you’re responsible for, that would include not only the
methamphetamine but also the liquid that it was in [.]” Weigle responded in the
affirmative. Transcript, p. 17.
Before sentencing, Weigle’s attorney filed objections to the presentence report.
report. The sole objection that would have affected the sentencing guideline range
(i.e., the criminal history computation) was mooted by the Probation Office’s revision to
revision to the report. Weigle was sentenced to a 60-month term of imprisonment. In

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In the plea agreement, Weigle waived his right to appeal all issues other than those
those relating to his criminal history. He did not appeal the judgment.
II. Discussion
In the motion to vacate, Weigle first asserts that he was denied effective
assistance of counsel as a result of his attorney’s failure to object to the drug quantity.
To prevail on an ineffective assistance claim, 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. To
establish the Aprejudice@ prong, the movant must show Athat 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 sufficient to

undermine confidence in the outcome.@ Id. at 694. 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).
Weigle’s ineffective assistance claim is premised on his contention that the
wastewater

was

improperly

included

in

calculating

the

total

amount

of

methamphetamine. It is true that wastewater from illicit drug manufacturing may not
not be counted in determining drug quantity for purposes of the sentencing guidelines.
guidelines.

U.S.S.G. §2D1.1, Application Note 1 (“Mixture or substance does not

include materials that must be separated from the controlled substance before the

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controlled substance can be used Examples of such materials include . . .waste water
water from an illicit laboratory used to manufacture a controlled substance.”).
However, wastewater can be counted in determining whether the offense involved
more than 50 grams of methamphetamine so as to trigger the mandatory five-year
minimum sentence of imprisonment. United States v. Kuenstler, 325 F.3d 1015, 1023
1023 (8th Cir. 2003) (weight of liquid byproduct of methamphetamine manufacture
could be considered in calculating weight of “mixture or substance” under
§841(b)(1)(B)).

Further, as discussed above, Weigle admitted under oath that he

manufactured more than 50 grams of methamphetamine. Given these circumstances,
circumstances, any objection to the drug quantity would have been futile. Weigle has
has not shown that defense counsel’s performance was objectionably unreasonable or
or that he was prejudiced.
Weigle’s second claim is that the court erred in determining his criminal history
history category. Specifically, he argues that his criminal history category substantially
substantially overstated the seriousness of his criminal history.

Because Weigle

reserved his right to appeal issues pertaining to his criminal history, he could have
raised this issue on direct appeal. As a result of his failure to do so, the claim is
procedurally barred. Poor Thunder v. United States, 810 F.2d 817, 823 (8th Cir.
1987). Absent a showing of cause to excuse the procedural default and prejudice, the
the court need not consider the claim. However, even if the procedural bar did not
apply the claim is still without merit. The 60-month sentence that Weigle received was
was based on the minimum term of imprisonment that was mandated by statute. The

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The court could not have imposed a sentence below 60 months, regardless of Weigle’s
Weigle’s criminal history category.
III. Conclusion
For the reasons discussed above, the court concludes that motion and the files
files and records of this case conclusively show that Weigle is not entitled to relief
under 28 U.S.C. § 2255 based on any of the claims he asserts in the motion to vacate.
vacate. Therefore, the motion will be denied without a hearing. See Engelen v. United
United States, 68 F.3d 238, 240 (8th Cir. 1995). Additionally, the court finds that
Weigle 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.
2253.
An order consistent with this memorandum opinion will be filed separately.

____________________________
CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 14th day of December, 2015.

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