Barth v. USA

Filing 10

ORDER re 1 Motion to Vacate Sentence - 2255. For reasons therein Barth's petition for relief under § 2255 is denied. The clerk of court shall enter judgment accordingly and close the case. Because Barth did not make a substantial showing of the denial of a constitutional right, the court declines to issue a certificate of appealability. 28 U.S.C. § 2253(c). So Ordered by Judge Joseph A. DiClerico, Jr.(ko)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

Anthony Barth
v.

Civil No. 18-cv-1010-JD
Opinion No. 2019 DNH 090

United States of America

O R D E R
Anthony Barth, proceeding pro se, seeks a writ of habeas
corpus pursuant to 28 U.S.C. § 2255.

In support, he brings four

claims that his counsel provided constitutionally ineffective
assistance.

The government has filed its response.

filed a reply.

Barth has

An evidentiary hearing is not required, and the

petition is resolved as follows.

Rule 8(a), Rules Governing

Section 2255 Proceedings.

Standard of Review
A petitioner is entitled to habeas relief if he shows that
his sentence was imposed “in violation of the Constitution or
laws of the United States . . . or is otherwise subject to
collateral attack.”

§ 2255(a).

The Sixth Amendment guarantees

criminal defendants the right to effective assistance of
counsel.

Strickland v. Washington, 466 U.S. 668, 686 (1984).

“[A] defendant who claims ineffective assistance of counsel must

prove (1) that counsel’s representation fell below an objective
standard of reasonableness, and (2) that any such deficiency was
prejudicial to the defense.”

Garza v. Idaho, 139 S. Ct. 738,

744 (2019) (internal citations and quotation marks omitted).

Background1
In 2016, the New Hampshire State Police and the Manchester
Police were investigating the sale of heroin and fentanyl in
southern New Hampshire.
distributor of fentanyl.

They identified Anthony Barth as a
During a meeting with a confidential

informant (“CI”) on June 22, 2016, the investigators learned
that the CI was familiar with Barth and willing to purchase
drugs from him.
Police officers and the CI arranged drug transactions with
Barth, which were conducted under surveillance.

On July 28, the

CI purchased ten “fingers” of fentanyl from Barth for $3,000.2
The CI bought 15 fingers of fentanyl from Barth for $4,500 on

The information about the crimes, search, and laboratory
testing is taken from the presentence investigation report,
which was accepted with certain changes during the sentencing
hearing.
1

The term “fingers” used in this context is understood to
mean either balloons or the fingers cut from rubber gloves. See
Baez-Gil v. United States, 2013 WL 2422803, at *2 (D.N.H. June
4, 2013)
2

2

August 3.

On August 17, Barth agreed to sell the CI 50 fingers

of heroin or fentanyl in Derry, New Hampshire.
The police officers planned to arrest Barth on August 17.
They saw his car parked behind a restaurant and identified
Barth.

Two marked police cars drove toward Barth’s car and

stopped with one car in front of Barth and the other behind him.
One officer got out of the car, drew his gun, and ordered Barth
to stop.
Barth put his car into reverse and hit the police car
behind him.

He then shifted into drive and drove toward the

officer in front of him.

He did not hit the officer.

He drove

over the median, which consisted of a small lawn, and onto an
access road to Walmart.

A witness saw him leave his car, run to

a dumpster, and then run into the woods.

With the witness’s

information, officers found 25 fingers in the dumpster and 24
fingers near the edge of the woods.
The same day officers obtained a warrant and searched
Barth’s home.

Barth’s father, Russell Barth, and his

girlfriend, Alyssa Robichaud, also lived in the house, and the
officers spoke to them.

During the search, officers found

marijuana, heroin, fentanyl, and an anabolic steroid.

Inside a

safe, they found $47,000 and a large amount of gold, jewelry,
and coins.

The appraised value of the gold, coins, and jewelry

is $146,420.
3

The drugs purchased by the CI from Barth were tested at the
New Hampshire Department of Safety Forensic Laboratory on
September 15, 2016.

The tests showed that Barth sold 100.1

grams of fentanyl on July 28 and 148.7 grams of fentanyl on
August 3.

The 49 fingers found on August 17 after Barth ran

into the woods contained 492.94 grams of fentanyl.

672 grams of

marijuana and 65.58 grams of fentanyl were seized during the
search of Barth’s home.
In a complaint filed on September 6, 2016, Barth was
charged with possession with intent to distribute controlled
substances in violation of 21 U.S.C. § 841(a)(1), and he was
arrested the same day.

An indictment was filed on September

21, 2016, charging Barth with two counts of distribution of a
controlled substance, fentanyl, in violation of § 841(a)(1), and
one count of possession with intent to distribute a controlled
substance, fentanyl, also in violation of § 841(a)(1).

Barth

signed an acknowledgement and waiver of rights on May 31, 2017,
in which he pleaded guilty to all three counts without a plea
agreement.

He also acknowledged that the minimum penalty for

those offenses was ten years and the maximum penalty was life in
prison.
On June 5, 2017, Barth appeared and entered his guilty
plea.

During his plea hearing, Barth stated that he understood

the maximum penalty for the charges against him was life in
4

prison and the mandatory minimum penalty was ten years in
prison.

Barth admitted that that he had possessed with intent

to distribute more than 400 grams of fentanyl, as charged in
Count 3.

The defense did dispute the other quantities of drugs

attributed to Barth and the cash, gold, and jewelry found in the
home that was attributed to Barth.
Barth objected to the length of the sentence as it was
calculated in the presentence investigation report and supported
by the government in its memorandum.

Before sentencing,

however, the defense and the government agreed that the quantity
of drugs involved in Barth’s offenses equaled 10,000 to 30,000
kilograms of marijuana, resulting in a base offense level of 34.
They also agreed to a 2 point enhancement for reckless
endangerment based on his operation of his car to escape capture
and leaving fentanyl in the area, raising the base offense level
to 36, which was then reduced to 33 based on acceptance of
responsibility.
Barth’s counsel asked the court to consider the
circumstances of the controlled buys from Barth, which he argued
showed an attempt to manipulate the sentence, as a factor to
support a variance from the guidelines.
that any manipulation occurred.

The government disputed

Barth was sentenced to 168

months on each count, to be served concurrently.

5

Discussion
Barth raises four ineffective assistance of counsel claims
in support of his habeas petition.

He contends that his counsel

was ineffective because counsel failed to object to additional
offense levels based on converting the property seized from his
home to drug quantities and because counsel failed to object to
the enhancement for reckless endangerment.

He also alleges that

his counsel was ineffective because he failed to object to the
government’s failure to provide impeachment and exculpatory
evidence, failed to argue for a sentence below the mandatory
minimum based on the government’s manipulation of the scope of
the crime, and failed to argue that he was entitled to an
offense level reduction based on his role in the crime.3

In its

response, the government contends, briefly, that none of Barth’s
claims have merit.

In his reply, Barth states in several places that he asked
his counsel to file a notice of appeal to raise the same four
issues. No appeal was filed. Barth appears to believe that an
appeal was necessary to avoid procedural default, which is not
an issue here. Further, ineffective assistance of counsel
claims cannot be raised on direct appeal except in limited
circumstances that do no apply here. United States v. FleteGarcia, --- F.3d ---, 2019 WL 2223130, at *17 (1st Cir. May 23,
2019). Therefore, the court construes Barth’s § 2255 petition
to raise each of the four claims as ineffective assistance of
counsel claims but not to raise a claim of ineffective
assistance of counsel for failure to appeal those issues.
3

6

A.

Claim 1 - Offense Level Increase
Barth argues that his offense level was improperly based on

drug quantities that were calculated by including the drug
equivalents of gold, jewelry, and cash seized from his home.
He also challenges the enhancement for reckless endangerment
when he drove toward an officer while trying to flee and by
leaving fentanyl in the area when he escaped.

He contends that

his counsel was ineffective for failing to object to
consideration of those matters for purposes of his sentence.4
Barth argues that the drug quantities considered for
purposes of sentencing were core elements of the crime that had
to be charged and proven to a jury beyond a reasonable doubt.5
He also argues that his actions that caused an enhancement for
reckless endangerment had to be charged and proven to a jury
beyond a reasonable doubt.

He contends that under Apprendi v.

New Jersey, 530 U.S. 466 (2000), and Alleyne v. United States,
570 U.S. 99 (2013), those matters could not be considered for
sentencing because they were not facts found by a jury.

He

alleges that his counsel was ineffective for failing to raise

At sentencing, the defense agreed that his conduct
constituted reckless endangerment under U.S.S.G. § 3C1.2.
4

Barth pleaded guilty to possession with the intent to
distribute 400 grams of fentanyl and acknowledged that the
penalties provided by 21 U.S.C. § 841(b)(1)(vi) applied to all
three of his offenses.
5

7

those issues.

The government responds, stating that any such

argument would have been frivolous.
When the prison term imposed is not longer than the
statutory maximum, drug quantities found by a preponderance of
the evidence are constitutionally permissible.

United States v.

Zapata, 589 F.3d 475, 483 (1st Cir. 2009) (construing Apprendi);
see also United States v. Berrios-Miranda, 919 F.3d 76, 80 (1st
Cir. 2019) (explaining evidentiary bases for sentencing).

A

sentencing enhancement for reckless endangerment is properly
based on facts that are found by a preponderance of the
evidence.6
Cir. 2014).

United States v. Banks, 490 Fed. Appx. 484, 485 (3d
In addition, “factual findings made for purposes

of applying the Guidelines, which influence the sentencing
judge’s discretion in imposing an advisory Guidelines sentence
and do not result in imposition of a mandatory minimum sentence,
do not violate the rule in Allene.”

United States v. Ramirez-

Negron, 751 F.3d 42, 48 (1st Cir. 2014).
Therefore, the advisory Guideline sentence imposed on Barth
complied with the applicable legal standards.

As a result, his

Barth does not dispute the facts that the enhancement was
based on, and, in fact, he agreed that he fled from being
arrested and left fingers of fentanyl in the area after
abandoning his car. See United States v. Dennings, 922 F.3d
232, 237 & n.3 (4th Cir. 2019).
6

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counsel’s failure to object on the grounds Barth raises did not
fall below an objective standard of reasonableness.

B.

Claim 2 – Discovery
Barth charges that the government withheld impeachment and

exculpatory evidence that it should have produced within
fourteen days after his arraignment.

He alleges that the

evidence concerned government witnesses that he identifies as
Dave Fagan, Evil, and Mike Veinot.

The evidence that he cites

is that Fagan was involved in a “massive drug ring,” Evil would
have testimony and statements about “the year of 2015,” and
Veinot would have testimony and statements “concerning the years
of 2012-2016, FBI FD 302’s & 209’s with inserts, DEA 6’s & 7’s.”
Doc. no. 1, at 9.

Barth contends that his counsel was

ineffective in failing to object to the government’s
nondisclosure of that information.
In response, the government points out that Barth has not
shown that any withheld discovery caused him prejudice.

The

government also notes that the evidence he cites appears to be
impeachment evidence, and that Barth was not entitled to
impeachment evidence before he pleaded guilty.
For purposes of an ineffective assistance of counsel claim
in the context of a guilty plea, the petitioner must show both
that his counsel’s representation was not objectively reasonable
9

and that, but for the deficient representation, there is a
reasonable probability that he would not have pleaded guilty.
United States v. Luis Rivera-Cruz, 878 F.3d 404, 410 (1st Cir.
2017).

“A reasonable probability is a probability sufficient to

undermine confidence in the outcome.”
694.

Strickland, 466 U.S. at

“A court should not upset a plea solely because of post

hoc assertions from a defendant about how he would have pleaded
but for his attorney’s deficiencies.

Judges should instead look

to contemporaneous evidence to substantiate a defendant’s
expressed preference.”

Lee v. United States. 137 S. Ct. 1958,

1967 (2017).

1.

Witness Discovery

Barth provides little information about the allegedly
withheld discovery.

He does not show or explain how the cited

information is exculpatory, and instead, it seems that the
information was impeachment evidence.

As the government points

out, the government had no obligation to disclose impeachment
evidence to Barth before he pleaded guilty.7

See United States

v. Ruiz, 536 U.S. 622, 633 (2002).

Barth cites local rules from the District of
Massachusetts, for 1990 and 1986. Those rules do not apply in
this district.
7

10

Therefore, Barth has not shown that failure to object to
the alleged lack of discovery was objectively unreasonable.

2.

Prejudice

Even if Barth had established the first step of this claim,
he has not shown prejudice.

In his reply, Barth repetitively

states that the result of the proceedings would have been
different, but he provides no evidence or developed argument to
show that he would not have pleaded guilty if he had had the
discovery he cites about Fagan, Evil, and Veinot.

He conclusory

statements of the standard does not provide the required
showing.

Therefore, Barth has not met the prejudice prong of

the ineffective assistance of counsel test.

C.

Claim 3 – Sentencing Manipulation
Barth argues that his counsel was constitutionally

ineffective because he did not argue that the government
improperly manipulated the drug sales in order to increase his
sentence.

He contends that the small amounts of fentanyl sold

in the first two encounters would have kept his sentence within
a range of 0-60 months but the much larger attempted third sale
caused him to be subject to the greater sentence of ten years to
life.

He argues that the government could have arrested him

before the third attempted sale but wanted to enlarge the scale
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of his crime with the third sale for purposes of a longer
sentence.
“Sentencing factor manipulation occurs where government
agents have improperly enlarged the scope of scale of a crime.”
United States v. Rivera-Ruperto, 852 F.3d 1, 14 (1st Cir. 2017).
If a defendant proves that misconduct, the court may impose a
sentence below the statutory minimum or depart from the
sentencing guidelines range.
F.3d 1, 3 (1st Cir. 1995).

Id.; United States v. Montoya, 62
That relief is available, however,

only in extreme and unusual cases that involve “outrageous or
intolerable pressure by the government or illegitimate motive on
the part of the agents.”

Rivera-Ruperto, 852 F.3d at 15; see

also United States v. Navedo, 781 F.3d 563, 569-70 (1st Cir.
2015) (considering sentence manipulation claim in support of a
downward variance).
As the government points out, defense counsel argued for a
downward variance based on a sentence manipulation theory.
court rejected that argument.

The

Barth has not shown that an

argument for a sentence below the statutory minimum, based on a
sentence manipulation theory, would have been more successful.
Therefore, he has not shown that counsel’s argument was
objectively unreasonable or that there is a reasonable
probability of a different outcome.

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D.

Claim 4 – Mitigating Role
Barth contends that his counsel was ineffective for failing

to argue, under U.S.S.G. § 3B1.2, for a reduction in his offense
level based on his minimal or minor role in the crimes charged.8
Despite Barth’s attempt to portray himself as a “mule” in
someone else’s drug operation, that is contrary to the facts of
this case.9

Barth, like most drug dealers, had a source from

whom he bought the drugs that he then sold to the confidential
source.

Having a source for his drug supply does not make Barth

a minimal or minor participant in his own drug dealing
operation.
Barth has not shown that he meets any of the factors for a
minimal or minor participant under § 3B1.2.

Therefore, his

counsel did not provide ineffective assistance of counsel in
failing to argue for a decrease in offense level based on a
mitigating role.

Barth makes a long argument about the retroactive
application of Amendment 794, which added a five-factor test to
the application note for U.S.S.G. § 3B1.2. His argument is
irrelevant, however, because the amended guidelines were used
for sentencing.
8

A drug mule is simply a courier in a much broader drug
conspiracy or operation and does not participate in the drug
sales or negotiations, which are conducted by others. United
States v. Quinones-Medina, 553 F.3d 19, 22-23 (1st Cir. 2009).
Barth admittedly made the drug sales to the undercover source
and identifies no one else who ran the drug operation.
9

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Conclusion
For the foregoing reasons, Barth’s petition for relief
under § 2255 is denied.
The clerk of court shall enter judgment accordingly and
close the case.
Because Barth did not make a substantial showing of the
denial of a constitutional right, the court declines to issue a
certificate of appealability.

28 U.S.C. § 2253(c).

SO ORDERED.

______________________________
Joseph A. DiClerico, Jr.
United States District Judge
May 30, 2019
cc:

Anthony Barth, pro se
Seth R. Aframe, Esq.

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