Zaritz v. United States of America

Filing 12

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Movant's motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255 is DENIED with prejudice. A separate judgment will accompany this Memorandum and Order. Signed by District Judge John A. Ross on 2/2/2017. (CLO)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

PATRICK W. ZARITZ,
Movant,
v.
UNITED STATES OF AMERICA,
Respondent.

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Civil Case No. 4:13-cv-2307-JAR
Criminal Case No. 4:11-cr-177-JAR-1

MEMORANDUM AND ORDER
This matter is before the Court is Movant Patrick W. Zaritz’s motion to vacate, set aside,
or correct sentence pursuant to 28 U.S.C. § 2255 (Doc. 1). The Government has responded
(Doc. 9). For the following reasons, the motion is DENIED with prejudice and this case is
DISMISSED.
I.

Introduction and Background
On February 27, 2012, Movant waived his right to prosecution by indictment, and entered

guilty pleas to the following four counts, which were charged by information: (1) on April 1,
2010, knowingly and intentionally possessing with the intent to distribute a mixture or substance
containing a detectable amount of methamphetamine, in violation of 21 U.S.C. § 841(a)(1)
(“Count 1”); (2) on April 1, 2010, knowingly possessing “one or more firearms” in furtherance
of a drug trafficking crime, in violation of 18 U.S.C. § 924(c) (“Count 2”); (3) on April 1, 2010,
knowingly possessing an unregistered short barrel shotgun, in violation of 26 U.S.C. § 5861(d)
and punishable under 26 U.S.C. § 5871 (“Count 3); (4) on December 20, 2010, knowingly and
intentionally possessing with the intent to distribute a mixture or substance containing a

detectable amount of methamphetamine, in violation of 21 U.S.C. § 841(a)(1) (“Count 4) (Crim.
Docs. 55-56; 84). 1 In exchange for Movant’s guilty pleas, the Government agreed to, inter alia,
dismiss a fifth count, which charged Movant with knowingly possessing one or more firearms in
furtherance of a drug trafficking crime on December 20, 2010, and which was punishable by a
mandatory, consecutive 25-year prison sentence (Crim. Docs. 55 at 4; 84 at 5, 19).
The parties’ written plea agreement set forth the following relevant facts. On April 1,
2010, law enforcement officers executed a search warrant at Movant’s residence, and found
methamphetamine, indicia of a meth lab, and four firearms, including a short-barreled, 12-gauge
shotgun. The parties further agreed that expert testimony would have established that Movant
possessed the short-barreled shotgun to facilitate the distribution of narcotics. On December 20,
2010, law enforcement officers executed another search warrant at Movant’s residence, and
found more methamphetamine, indicia of a meth lab, and four more firearms (Crim. Doc. 61 at
3-9).
The plea agreement specifically stated that, as to Count 2, Movant admitted that in
furtherance of his possession with the intent to distribute methamphetamine (as charged in Count
1), he had “knowingly possessed a firearm, namely: a short barreled shotgun” (Id. at 5). The plea
agreement described Count 2 as “Knowingly Possessing a Short Barreled Shotgun in Furtherance
of a Drug Trafficking Crime,” and noted that Count 2 was punishable by “a mandatory minimum
term of imprisonment of ten years, said sentence to run consecutively with any other sentence”
(Id. at 11, 13 (citing 18 U.S.C. §§ 924(c) and 924(c)(1)(B)(i)). The plea agreement also indicated

1

A May 2011 indictment had initially charged Counts 1 and 4 as knowingly and intentionally
manufacturing a mixture or substance containing a detectable amount of methamphetamine. At
the plea hearing, Movant denied that he had actually manufactured the methamphetamine, and
the Government agreed to modify Counts 1 and 4, by information, to charge him with possession
with the intent to distribute methamphetamine instead (Crim. Docs. 13; 84 at 20-24).
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that, by pleading guilty, Movant agreed to waive, as relevant, his right to a jury trial and his right
to require the Government to prove beyond a reasonable doubt the elements of each offense (Id.
at 21).
During the February 27, 2012 plea hearing, Movant waived his right to indictment, and
agreed to proceed on the information (Crim. Doc. 84 at 30-33). Movant signed a waiver of
indictment, indicating that Count 2 charged him with “Possession of a short-barreled shotgun in
furtherance of a drug trafficking crime” (Crim. Doc. 56). The Court then conducted the
following colloquy with Movant:
THE COURT: [A]s to Count II, that the elements of the offense are that you
committed the crime of possession with intent to distribute a mixture or substance
containing a detectable amount of methamphetamine[, a] controlled substance to
another person as named in Count 1 of the Indictment. And, two, in furtherance of
the commission of possession with intent to distribute a mixture or substance
containing a detectable amount of methamphetamine, you knowingly possessed a
firearm, a short-barreled shotgun. Do you agree that you did those things?
MOVANT: Yes, sir.
...
THE COURT: You agree on April the 1st, 2010 and December the 20th, 2010, on
both of those dates –
MOVANT: Yes, sir.
THE COURT: – agents and police and law enforcement officers were at your
residence. And on both of those occasions you were in the possession of
methamphetamine; is that correct?

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MOVANT: Yes, sir.
THE COURT: And at the time you were in the possession of the
methamphetamine, you knew it was methamphetamine, and you intended to
distribute it, either sell it or give it to others; is that correct?
MOVANT: Yes, sir.
THE COURT: And you agree that you knowingly possessed these firearms; is
that correct?
MOVANT: Yes, sir.
THE COURT: And that one of the firearms was a short-barreled shotgun; is that
correct?
MOVANT: Yes, sir.
THE COURT: And you possessed that weapon in furtherance of your possession
with intent to distribute the methamphetamine; is that correct?
MOVANT: Yes, sir. In furtherance means just like during the time or –
THE COURT: As part of your possession to secure it, to maintain that no one
would come in and take it from you, to ensure that no one bothered you, in
furtherance of your possession with intent to distribute, you possessed the shortbarreled shotgun; is that correct?
MOVANT: Oh, okay. Yeah, I guess so.
THE COURT: I mean, I need to know whether or not that’s, in fact, what you did.
MOVANT: Yeah. Yeah.
THE COURT: I mean, that’s why you have the short-barreled shotgun, isn’t it, to
make sure you were secure, to assist you and aid in furtherance of your possession

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with intent to distribute the methamphetamine? Is that correct?
MOVANT: Yes.
...
THE COURT: Okay. And as to Count II, the knowingly possessing a shortbarreled shotgun in furtherance of a drug trafficking crime, the range of
punishment is not less than ten years and not more than a fine of $250,000 or both
such fine and imprisonment. Do you understand that, sir?
MOVANT: Yes, sir.
...
THE COURT: And then they go to Count II, which is the knowingly possessing a
short-barreled shotgun in furtherance of a drug trafficking crime. And that is – has
a range of punishment as a result of Section 924(c), and you’re subject to a
mandatory term of imprisonment of ten years. And that that sentence is to run
consecutive with any other sentence. Do you understand that?
MOVANT: Yes, sir.
THE COURT: Do you have any questions about any of that?
MOVANT: No, sir.
...
THE COURT: And on the charge in Count II of possession of a short-barreled
shotgun, how do you wish to plead to that charge?
MOVANT: Guilty.
(Crim. Doc. 84 at 35, 40-41, 43-44, 47, 57). The final presentence report (“PSR”) identified as
Movant’s residence the location where officers executed search warrants and discovered firearms

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and methamphetamine on April 1, 2010 and December 10, 2010 (Crim. Doc. 97); Movant did
not object to the PSR’s characterization of the location as his residence.
Movant’s motion to vacate raises three grounds for relief: (1) that plea counsel was
ineffective by failing to object to two Guidelines provisions; (2) that counsel was ineffective by
failing to “challenge the execution of the search warrant”; and (3) that the Court plainly erred by
engaging in judicial fact-finding, i.e., finding that the firearm Movant possessed in furtherance of
his drug trafficking crime was a short-barreled shotgun, before imposing a 10-year consecutive
sentence on Count 2 (Docs. 1, 1.3). The Court will address each of Movant’s grounds in turn.
I.

Analysis

A. Ineffective Assistance of Counsel – Failure to Object to Guidelines
First, Movant claims that counsel was ineffective by failing to challenge the application
of U.S. Sentencing Guidelines (“U.S.S.G.”) § 2K2.1(a)(1) (base offense level for certain firearms
offenses) and § 2D1.1(c)(11) (base offense level based on quantity of controlled substance
involved in certain drug offenses) to enhance his sentence. To establish a claim of ineffective
assistance of counsel, Movant must demonstrate both that his counsel's performance was
deficient and that he was prejudiced by that performance. Strickland v. Washington, 466 U.S.
668, 687 (1984). Deficient representation means counsel's conduct fell below the conduct of a
reasonably competent attorney. Id. To establish prejudice, Movant must show “a reasonable
probability that, but for counsel's unprofessional errors, the result of the proceeding would have
been different.” Id. at 694.
Movant’s first ground for relief lacks merit because, among other reasons, he cannot
establish that he was prejudiced by plea counsel’s failure to object to U.S.S.G. § 2K2.1(a)(1) or
§ 2D1.1(c)(11). More specifically, although the parties contemplated in their plea agreement that

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these Guidelines provisions would apply, the final version of the PSR did not actually apply
either provision to calculate Movant’s Guidelines range. Rather, the PSR grouped Counts 1, 3,
and 4; applied the base offense level for Count 3 (possession of an unregistered firearm), as it
resulted in the highest total offense level; and recommended the mandatory minimum 10-year
consecutive sentence on Count 2. As such, Movant’s claim that plea counsel was ineffective by
failing to object to Guidelines provisions that had no effect on his sentence is meritless. See
Strickland, 466 U.S. at 694.
B. Ineffective Assistance of Counsel – Failure to Challenge the Search Warrant
Movant also alleges that counsel was ineffective by failing to “challenge execution of the
search warrant.” More specifically, Movant claims that the location that was searched by law
enforcement on April 1, 2010 and December 10, 2010, was not his residence; that neither his
fingerprints nor his DNA were matched to the firearms that law enforcement officers found at
that location; and that he did not confess to owning the firearms. Thus, according to Movant, the
firearms were “fruits” of an illegal search. In Movant’s view, counsel should have challenged the
search warrant because, although he concedes that he “was a known occupant of the dwelling” at
the time of the search, the Government has not established that he “maintained” the premises. In
support of his argument, Movant cites to the commentary to U.S.S.G. § 2D1.8, which sets forth
the base offense level for those convicted of maintaining a drug-involved premises, in violation
of 21 U.S.C. § 856.
A defense attorney’s failure to file a pretrial motion does not give rise to a claim of
ineffective assistance if there was not a reasonable probability that the motion would have been
successful. White v. Helling, 194 F.3d 937, 942 (8th Cir. 1999); United States v. Carasis, 863
F.2d 615, 616 (1988) (counsel’s failure to file a pretrial motion is not necessarily indicative of

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ineffective assistance); see Kimmelman v. Morrison, 477 U.S. 365, 384 (1986). The Court will
deny Movant’s second ineffective-assistance claim, as he cannot establish that a pretrial motion
to suppress the firearms as fruits of an illegal search would have been successful. White, 194
F.3d at 942; see also Strickland, 466 U.S. at 694. More specifically, Movant does not contest the
validity of the warrant, i.e. that it was issued by a neutral and detached magistrate based on a
finding of probable cause that contraband or evidence of a crime would be found at the location
to be searched. See Warden v. Hayden, 387 U.S. 294, 301-02 (1967). He also does not contend
that law enforcement officers exceeded the scope of the warrant when they performed the
searches on April 1, 2010 and December 20, 2010. The Fourth Amendment does not require
exclusion of contraband seized during a search conducted pursuant to, and within the scope of,
an otherwise valid warrant merely because the location searched was not the defendant’s
residence. See Illinois v. Gates, 462 U.S. 213, 238-39 (1983) (a search warrant may issue if there
is a fair probability that contraband or evidence of a crime will be found “in a particular place”).
The Court further notes that, at the plea hearing, Movant admitted that the location of the search
was his residence, see Nguyen v. United States, 114 F.3d 699, 703 (8th Cir. 1997) (defendant’s
representations during a plea hearing “carry a strong presumption of verity”); and that he did not
object to the PSR’s conclusion that he resided at the location of the search, cf. United States v.
Arrieta-Buendia, 372 F.3d 953, 955 (8th Cir. 2004) (if defendant does not object to specific
factual allegation contained in PSR, the Court may accept that fact as true for purposes of
sentencing). Therefore, the Court concludes that Movant is not entitled to § 2255 relief on his
second claim.

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C. Plain Error/Judicial Fact-Finding 2
The sentence for possessing a firearm in furtherance of a drug trafficking offense is
generally a minimum of 5 years, and a maximum of life, in prison, to be served consecutively to
the sentence on the underlying drug trafficking offense. 18 U.S.C. § 924(c)(1)(A); see United
States v. Lara-Ruiz, 781 F.3d 919, 922-23 (8th Cir. 2015). If the firearm is a short-barreled
shotgun, however, the sentencing range is enhanced to a minimum of 10 years, and a maximum
of life, in prison, to be served consecutively to the drug trafficking offense. 18 U.S.C.
§ 924(c)(1)(B)(i). According to Movant, the Court impermissibly enhanced his sentence on
Count 2 based on a judicial finding that the firearm he possessed was a short-barreled shotgun.
Any fact, other than that of a prior conviction, which increases the mandatory minimum
sentence a criminal defendant faces must be submitted to a jury and proved beyond a reasonable
doubt. Alleyne v. United States, 133 S. Ct. 2151, 2163 (2013); see also Apprendi v. New Jersey,
530 U.S. 466, 490 (2000) (any fact, other than previous conviction, that increases a defendant’s
sentence beyond the statutory maximum must also be submitted to a jury and proved beyond a
reasonable doubt). However, a criminal defendant is free to waive his right to require that such
facts be submitted to a jury and proved beyond a reasonable doubt. See Blakely v. Washington,
542 U.S. 296, 310 (2004); United States v. Griffin, 394 Fed. App’x 349, 350-51 (8th Cir. 2010)
(unpublished per curiam) (criminal defendant’s right to jury trial is subject to knowing and
voluntary waiver). Where—as here—a defendant enters a knowing and voluntary guilty plea,
“the Government is free to seek judicial sentence enhancements so long as the defendant either
stipulates to the relevant facts or consents to judicial factfinding.” Blakely, 542 U.S. at 296; see
2

In the plea agreement, Movant waived his right to contest his conviction or sentence under 28
U.S.C. § 2255, except for claims of prosecutorial misconduct or ineffective assistance of counsel
(Crim. Doc. 61 at 17). The Government has not sought to enforce this waiver as to Movant’s
third ground for relief, and the Court will address the claim on the merits.
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Bibbs v. United States, No. 4:04-CV-1077 CAS, 2007 WL 2507759, at *14 (E.D. Mo. Aug. 30,
2007) (rejecting § 2255 movant’s claim that he was entitled to jury determination of fact used to
apply a Guidelines enhancement, as the movant had admitted the fact in his plea agreement).
Movant’s argument that the Court relied on impermissible judicial fact-finding to impose
an enhanced sentence on Count 2 lacks merit. Movant entered a knowing and voluntary guilty
plea to the offense of possessing a short-barreled shotgun in furtherance of a drug trafficking
offense. He also admitted, both in the plea agreement and at the plea hearing, that he possessed
the short-barreled shotgun in furtherance of his possession with the intent to distribute
methamphetamine. See Nguyen, 114 F.3d at 703. The plea agreement placed Movant on notice
of the mandatory minimum 10-year consecutive sentence he faced on Count 2, and at the plea
hearing, Movant confirmed that he understood the nature of the offense to which he was entering
his plea on Count 2, as well as the range of punishments he faced for that offense. Therefore, the
10-year consecutive sentence the Court imposed on Count 2 was based on facts to which Movant
admitted when he knowingly and voluntarily entered his guilty plea, not on any fact-finding by
the Court. Thus, Movant’s third claim will be denied.
II.

Certificate of Appealability

The Court concludes that Movant 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.
III.

Conclusion

Accordingly, IT IS HEREBY ORDERED that Movant’s motion to vacate, set aside, or
correct sentence under 28 U.S.C. § 2255 is DENIED with prejudice. A separate judgment will
accompany this Memorandum and Order.

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Dated this 2nd day of February, 2017.

JOHN A. ROSS
UNITED STATES DISTRICT JUDGE

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