Edwards v. USA

Filing 13

ORDER denying 1 Motion for Postconviction Relief and Certificate of Appealability. Signed on 7/28/14 by Chief District Judge Greg Kays. (Francis, Alexandra) Modified on 7/28/2014 - mailed to movant (Francis, Alexandra).

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
KEVIN LAMAR EDWARDS,
Movant,
v.
UNITED STATES OF AMERICA,
Respondent.

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No. 4:13-cv-00858-DGK
(Crim. no. 4:11-099-DGK)

ORDER DENYING MOTION FOR POSTCONVICTION RELIEF AND
CERTIFICATE OF APPEALABILITY
This case arises out of Movant Kevin Lamar Edwards’ (“Movant” or “Edwards”)
conviction after entering a guilty plea to conspiracy to distribute 28 grams or more of cocaine
base, a violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846. Pending before the Court is
Movant’s pro se “Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence By
a Person in Federal Custody” (Doc. 1). Finding Movant’s arguments are without merit and an
evidentiary hearing is unnecessary, the Court denies the motion and declines to issue a certificate
of appealability.
Background and Procedural History
Between March 30, 2011, and April 13, 2011, officers with the Jackson County,
Missouri, Drug Interdiction Unit purchased cocaine base from Movant three times in amounts
ranging from 3.4 grams to 17.3 grams (Doc. 1-1 at 2-5). During one of these transactions,
Movant brought a sawed-off shotgun with him (Doc. 1-1 at 3).
On April 20, 2011, a grand jury returned a four-count indictment respectively charging
Edwards with: (1) conspiracy to distribute 280 grams or more of cocaine base; (2) distribution of
some quantity of cocaine base; (3) possessing with intent to distribute some quantity of cocaine

base; and (4) using a firearm during a drug trafficking crime. These charges carried a statutory
range of ten years’ to life imprisonment on Count One; up to twenty years’ imprisonment on
Counts Two and Three; and not less than five years on Count Four, which was required to be
imposed consecutively to any other sentence. Additionally, because Edwards had previously
been convicted of a felony drug crime, the Government could have used this prior conviction to
enhance his sentence on Count One to a mandatory minimum of twenty years’ imprisonment.
Thus, had he been found guilty on Counts One and Four, he faced an aggregate statutory
mandatory minimum sentence of not less than twenty-five years’ imprisonment.
Edwards, through counsel, subsequently negotiated a plea agreement that minimized his
exposure. Under the agreement, Edwards plead guilty to a lesser-included offense on Count
One, conspiracy to distribute 28 grams or more of cocaine base. As part of the bargain, the
Government agreed not to file the sentencing enhancement for Edwards’ prior felony drug
conviction and to dismiss Count Four. As a result, Edwards’ statutory mandatory minimum
sentence was reduced from twenty-five years’ imprisonment to five years’ imprisonment.
On December 13, 2011, Edwards pled guilty in open court pursuant to the plea
agreement. The plea agreement contained a detailed factual basis to support the guilty pleas and
stated the statutory penalties for the offenses and the sentencing procedures under which the
Court would sentence him. Pursuant to the agreement, Edwards also waived his right to a jury
trial and his right to appeal or collaterally attack his conviction or sentence. The plea agreement
was signed by Edwards and executed on December 13, 2011.
Consistent with the sentencing procedures described in the plea agreement, a detailed
presentence investigation report (“PSR”) was issued on April 16, 2012. The PSR described the
offense conduct, determined the total quantity of crack cocaine for which Edwards was
responsible was 49.05 grams, and deemed him to be a career offender under United States
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Sentencing Commission guideline § 4B1.1. The prior convictions used to designate Edwards as
a career offender were for: (1) murder in the second degree, two counts of armed criminal action,
and assault in the first degree (Jackson County Circuit Court Case No. CR93-1820); and (2)
distribution of a controlled substance (Jackson County Circuit Court Case No. 0716-CR01230).
This resulted in a base offense level of 34. Edwards, however, received a three-level reduction
for acceptance of responsibility, yielding a total offense level of 31. Although Edwards was
assessed a total of five criminal history points, he fell in Criminal History Category VI based on
his status as a career offender.
Edwards did not file any objections to the PSR.
Consistent with the sentencing guidelines, on August 29, 2012, the Court sentenced
Edwards to 204 months’ imprisonment. Edwards did not appeal his sentence.
On August 26, 2013, Edwards timely filed the pending motion.
DISCUSSION
In his motion, Movant argues the Court should vacate his sentence because: (1) the Court
imposed a sentence in violation of the law; (2) his attorney was ineffective at the sentencing
stage because he did not object to his career offender status; (3) the Court erred by aggregating
the amount of drugs sold to trigger the mandatory minimum sentence; and (4) his attorney was
ineffective for not objecting to the Court aggregating the drug amounts. In his memorandum of
law, however, Edwards does not argue, or even mention, any of these claims. Instead, he
attempts to present a new claim, apparently based on the Supreme Court’s decision in Alleyne v.
United States, 570 U.S. __, 133 S.Ct. 2151 (2013) (holding any fact that increases the mandatory
minimum sentence for a crime is an element of the crime that must be submitted to the jury, not a
sentencing factor), by copying large sections of the Alleyne opinion into his memo. Movant does
not, however, explain how Alleyne’s holding applies to his case.
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I.

Movant’s claims are legally frivolous.
As a threshold matter, Edwards does not provide any argument or reasoning for why the

Court should grant his motion. Consequently, his claims are “inadequate on their face,” and the
motion must be denied. See Anjulo-Lopez v. United States, 541 F.3d 814, 817 (8th Cir. 2008).
Even if Edwards’ briefs had provided more explanation, however, it would not change the fact
that his claims are meritless.
A.

Movant’s first two claims fail because he is a career offender under the
sentencing guidelines.

Movant’s first two arguments rest on a finding that he is not a career offender under the
guidelines. These arguments fail because Movant is, in fact, a career offender. Under the
sentencing guidelines, a defendant is a career offender if:
(1) the defendant was at least eighteen years old at the time the
defendant committed the instant offense of conviction;
(2) the instant offense of conviction is a felony that is either a
crime of violence or a controlled substance offense; and
(3) the defendant has at least two prior felony convictions of either
a crime of violence or a controlled substance offense.
U.S.S.G. § 4B1.1(a). Additionally, the guidelines define “crime of violence” as,
(a) . . . any offense under federal or state law, punishable by imprisonment
for a term exceeding one year, that—
(1) has as an element the use, attempted use, or threatened use of
physical force against the person of another, or
(2) is burglary of a dwelling, arson, or extortion, involves use of
explosives, or otherwise involves conduct that presents a serious
potential risk of physical injury to another.
(b) The term “controlled substance offense” means an offense under
federal or state law, punishable by imprisonment for a term exceeding one
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year, that prohibits the manufacture, import, export, distribution, or
dispensing of a controlled substance (or a counterfeit substance) or the
possession of a controlled substance (or a counterfeit substance) with
intent to manufacture, import, export, distribute, or dispense.
(c) The term “two prior felony convictions” means (1) the defendant
committed the instant offense of conviction subsequent to sustaining at
least two felony convictions of either a crime of violence or a controlled
substance offense (i.e., two felony convictions of a crime of violence, two
felony convictions of a controlled substance offense, or one felony
conviction of a crime of violence and one felony conviction of a controlled
substance offense), and (2) the sentences for at least two of the
aforementioned felony convictions are counted separately under the
provisions of § 4A1.1(a), (b), or (c). The date that a defendant sustained a
conviction shall be the date that the guilt of the defendant has been
established, whether by guilty plea, trial, or plea of nolo contendere.
U.S.S.G. § 4B1.2. The application notes state that “[c]rime of violence” includes murder,
manslaughter, kidnapping, aggravated assault, forcible sex offenses, robbery, arson, extortion,
extortionate extension of credit, and burglary of a dwelling. U.S.S.G. § 4B1.2 n.1. It also states
that a “[p]rior felony conviction” is an “offense punishable by death or imprisonment for a term
exceeding one year, regardless of whether such offense is specifically designated as a felony and
regardless of the actual sentence imposed.” Id.
Here, the Court did not err in designating Edwards as a career offender because the first
qualifying conviction was for murder in the second degree, a violent felony, and the second
qualifying conviction was for distribution of a controlled substance, which is a serious felony
drug offense.1 Thus, ground one must be denied.
Ground two must be denied because it is not ineffective assistance of counsel to fail to
make objections to sentencing guidelines calculations that have no legal or factual support. See,

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For this conviction, Edwards received an initial sentence of ten years’ imprisonment, and then was placed on a
“120-day callback,” with the balance of the sentence suspended. This conviction counts as a prior felony controlled
substance offense under the career offender provisions.

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e.g., Toledo v. United States, 581 F.3d 678, 681 (8th Cir. 2009) (not ineffective to withdraw
objections that have no support in the law).
Accordingly, Movant’s first two claims fail.
B.

Movant’s third and fourth claims fail because aggregating drug quantities is
permissible in a conspiracy.

Movant’s third and fourth arguments rest on the premise that the Court erred by
aggregating the amount of drugs sold to trigger the mandatory minimum sentence. Again, there
is no merit to these claims because the Court did not err. The Eighth Circuit has upheld the
aggregation of drug quantities in a conspiracy. See, e.g., United States v. Wessels, 12 F.3d 746,
753-54 (8th Cir. 1993) (computing the statutory penalty use amount of drugs attributable to
entire conspiracy, rather than on the amount involved in any single transaction). The sentencing
guidelines also make clear that aggregated drug quantities are applicable when determining a
sentence. U.S.S.G. § 2D1.1, n.5 (“If the offense involved both a substantive drug offense and an
attempt or conspiracy . . . the total quantity involved shall be aggregated to determine the scale of
the offense”). 
C.

Even if Alleyne applied retroactively, it would not impact his sentence.

Finally, Movant is not entitled to relief under Alleyne. First, Alleyne does not apply
retroactively to cases on collateral review. United States v. Redd, 735 F.3d 88, 91-92 (2nd Cir.
2013). Even if it did, it would not matter because Alleyne’s holding would not affect Edwards’
sentence. Edwards pleaded guilty to a lesser-included offense—conspiracy to distribute 28
grams or more of cocaine base—which carried a statutory penalty range of not less than five and
not more than forty years’ imprisonment. His mandatory minimum sentence was derived from
his own factual admissions, not by the Court’s resolution of any factual disputes at sentencing.

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Accordingly, Edwards’ sentence of 204 months’ imprisonment was within the statutory range of
punishment, and Alleyne does not apply.
II.

No evidentiary hearing is required.
“A petitioner is entitled to an evidentiary hearing on a section 2255 motion unless the

motion and the files and records of the case conclusively show that he is entitled to no relief.”
Anjulo-Lopez, 541 F.3d at 817 (internal quotation marks omitted). “No hearing is required,
however, ‘where the claim is inadequate on its face or if the record affirmatively refutes the
factual assertions upon which it is based.’” Id. (quoting Watson v. United States, 493 F.3d 960,
963 (8th Cir. 2007)); see also Sanders v. United States, 347 F.3d 720, 721 (8th Cir. 2003)
(holding a § 2255 motion may be dismissed without a hearing if (1) the petitioner’s allegations,
accepted as true, would not entitle him to relief, or (2) the allegations cannot be accepted as true
because they are contradicted by the record, inherently incredible, or conclusions rather than
statements of fact).
As discussed above, Movant’s claims are inadequate on their face and conclusively
contradicted by the record. Consequently, no evidentiary hearing is required or will be held.
III.

No certificate of appealability should be issued.
In order to appeal an adverse decision on a § 2255 motion, a movant must first obtain a

certificate of appealability. See 28 U.S.C. § 2253(c)(1)(B). District courts customarily address
this issue contemporaneously with the order on the motion. See Pulliam v. United States, No.
10-3449-CV-S-ODS, 2011 WL 6339840, at *4 (W.D. Mo. Dec. 16, 2011).
A certificate of appealability should be issued “only if the applicant has made a
substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This
requires the movant to demonstrate “that reasonable jurists could debate whether (or for that
matter, agree that) the petition should have been resolved in a different manner or that the issues
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presented were ‘adequate to deserve encouragement to proceed further.’” Slack v. McDaniel,
529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 464 U.S. 800, 893 n.4 (1983)). In the
present case, the Court holds no reasonable jurist would grant this § 2255 motion, and so the
Court declines to issue a certificate of appealability.
Conclusion
For the reasons discussed above, the motion (Doc. 1) is DENIED and the Court declines
to issue a certificate of appealability.
IT IS SO ORDERED.
Date: July 28, 2014

/s/ Greg Kays
GREG KAYS, CHIEF JUDGE
UNITED STATES DISTRICT COURT

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