Reedus v. United States of America

Filing 5

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that Petitioner Eric Reeduss motion filed under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence is DENIED. (Doc. No. 1.) IT IS FURTHER ORDERED that this Court will not issue a Certificate of Appealability as Petitioner has not made a substantial showing of the denial of a federal constitutional right as required by 28 U.S.C. § 2253(c)(2). A separate Judgment shall accompany this Memorandum and Order. Signed by District Judge Audrey G. Fleissig on 8/22/13. (JWJ)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
ERIC REEDUS,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

)
)
)
)
)
)
)
)
)

Case No. 4:13CV01070 AGF

MEMORANDUM AND ORDER
This matter is before the Court on Petitioner Eric Reedus’s motion filed under 28
U.S.C. § 2255 to vacate, set aside, or correct his sentence. For the reasons set forth
below, the motion shall be denied.
BACKGROUND
On July 11, 2011, Petitioner was convicted, upon pleading guilty pursuant to a
plea agreement, of one count of conspiracy to distribute cocaine and marijuana, and one
count of conspiracy to commit money laundering. The maximum terms of imprisonment
for the crimes were 40 years and 20 years, respectively.
In the plea agreement, the United States agreed that it would not seek a Career
Offender statutory enhancement under 21 U.S.C. 851(a), or an enhancement for an
aggravating role under the advisory Sentencing Guidelines § 3B1.1(a). Otherwise, both
parties reserved the right to request a sentence above or below the Sentencing Guideline
range ultimately determined by the Court. The Plea Agreement also included sentencing

guidelines agreements, recommendations and estimates. Based upon the agreed drug
quantities involved, the parties estimated, after grouping, that the Total Offense Level
would be 27. But the Plea Agreement also specifically acknowledged that the range
would increase if Petitioner were deemed to be a career offender under the Sentencing
Guidelines:
3. Estimated Total Offense Level: The parties estimate that the
Total Offense Level is 27, unless defendant is a Career Offender. Based
upon the underlying offense and defendant’s criminal history, defendant is
likely to be a Career Offender pursuant to Section 4B1.1. If the Court finds
defendant is a Career Offender, the base offense will be 34 and the Total
Offense Level will be 31 and the Criminal History Category will be
Category VI. Defendant has discussed these possibilities with defense
counsel.
(Case No. 4:10CR00618AGF, Doc. No. 403, at 9-10.)
The Presentence Report (“PSR”) found that Petitioner was a Career Offender
pursuant to Guidelines § 4B1.1(a), resulting in a Criminal History Category of VI and a
Total Offense Level of 31, for a sentencing range of 188-235 months. The PSR noted
that if the Court did not find that Petitioner was a Career Offender, his Total Offense
Level would be 24.
In a Sentencing Memorandum, Petitioner objected that the Career Offender
classification had an unjust and disproportionate effect on the sentencing range, noting
that had he not been classified as a Career Offender, his sentencing range would be 130162 months. He asked for a variance on this basis. (Case No. 4:10-cr-00618-AGF, Doc.
No. 533.) At the sentencing hearing on October 24, 2011, defense counsel again raised
this argument. The Court found that Petitioner was a Career Offender under Guidelines §

-2-

4B1.1(a), and sentenced him to 204 months imprisonment.
Because Petitioner waived his right to appeal, the Eighth Circuit dismissed his
direct appeal, and his conviction and sentence were affirmed. In the present motion,
Petitioner argues that the Court lacked authority to increase Petitioner’s sentence based
on his being a Career Offender, because the government had not filed a Career Offender
information before the plea, as required by 21 U.S.C. § 851(a); and that his counsel
rendered ineffective assistance by failing to investigate and raise this matter at
sentencing.
DISCUSSION
Pursuant to 28 U.S.C. § 2255, a federal prisoner may seek relief from a sentence
imposed against him on the ground that “the sentence was imposed in violation of the
Constitution or law 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. A petitioner’s
ineffective assistance of counsel claim is properly raised under 28 U.S.C. § 2255 rather
than on direct appeal. United States v. Davis, 452 F.3d 991, 994 (8th Cir. 2006). To
prevail on an ineffective assistance of counsel claim, a convicted defendant must first
show counsel’s performance “fell below an objective standard of reasonableness.”
Strickland v. Washington, 466 U.S. 668, 687-88 (1984). The defendant must also
establish prejudice by showing “there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Id. at 694.
“Failure to establish either prong is fatal to a claim of ineffective assistance.” Morelos v.
-3-

United States, 709 F.3d 1246, 1250 (8th Cir. 2013). If the underlying claim (i.e., the
alleged deficient performance) would have been rejected, counsel’s performance is not
deficient. Carter v. Hopkins, 92 F.3d 666, 671 (8th Cir. 1996). “In order to satisfy the
prejudice prong of the Strickland test in the guilty plea context, a defendant must
establish a reasonable probability that he would have exercised his right to a trial but for
counsel’s ineffectiveness.” Watson v. United States, 682 F.3d 740, 745 (8th Cir. 2012).
As the government argues, “it is well settled a § 851 information is limited to
situations in which a convicted defendant’s statutory minimum or maximum penalty is
enhanced under Part D of Title 21, and not to an enhancement under the now-advisory
guidelines which is within a statutory range.” United States v. Bailey, 677 F.3d 816, 81718 (8th Cir. 2012) (citation omitted). “For this reason, a sentencing court’s use of the
§ 4B1.1 career offender guideline is not conditioned upon the filing of a § 851
information.” Thomas v. United States, No. 2:11-cv-00931, 2012 WL 5935714, at *6
(S.D. W. Va.) (Nov. 27, 2012).
Here, Petitioner’s sentence was within the statutory maximum. Thus, the Court
had the authority to sentence Petitioner based upon its finding that he was a Career
Offender under Guidelines § 4B1.1(a). Indeed, Petitioner expressly acknowledged the
likelihood that he would be deemed to be a career offender, resulting in a guidelines total
offense level of 31, and a criminal history category of VI, in his plea agreement and at the
time of his plea. Defense counsel’s performance was not deficient for failing to argue
that the Career Offender Guidelines could not apply, nor did counsel’s failure to make
sure an argument prejudice Petitioner. See Campbell v. United States, No. 1:10CV00105
-4-

SNLJ, 2011 WL 5102243, at *8 (E.D. Mo. Oct. 27, 2011) (denying a § 2255 motion
raising a similar claim). The sentencing as a career offender was authorized by law, and
Defendant entered his plea of guilty fully advised of that possibility. Because Petitioner’s
claim can be resolved on the record, there is no need for an evidentiary hearing. See id.
at 4-5 (citing Rogers v. United States, 1 F.3d 697, 699 (8th Cir. 1993)).
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that Petitioner Eric Reedus’s motion filed under 28
U.S.C. § 2255 to vacate, set aside, or correct his sentence is DENIED. (Doc. No. 1.)
IT IS FURTHER ORDERED that this Court will not issue a Certificate of
Appealability as Petitioner has not made a substantial showing of the denial of a federal
constitutional right as required by 28 U.S.C. § 2253(c)(2).
A separate Judgment shall accompany this Memorandum and Order.

AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 22nd day of August, 2013.

-5-