COTTON v. UNITED STATES OF AMERICA

Filing 8

OPINION. Signed by Judge Renee Marie Bumb on 2/21/2013. (TH, )

[Dkt. No. 1]
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
NAEEM COTTON
v.
UNITED STATES OF AMERICA

:
: Civil Action No. 12-1198 (RMB)
:
:
OPINION
:
:
:

THIS MATTER comes before the Court upon the motion of
Petitioner, Naeem Cotton (“Petitioner” or “Cotton”), to vacate,
set aside, or correct his sentence pursuant to 28 U.S.C. § 2255.
For the following reasons, the motion is DENIED.
I.

PROCEDURAL HISTORY
On July 28, 2009, a federal grand jury sitting in Camden,

New Jersey returned a one-count indictment charging Cotton with
being a felon in possession of a firearm, in violation of 18
U.S.C. § 922(g). On December 8, 2009, without the benefit of a
plea agreement, Cotton pled guilty to the Indictment.
The Probation Office concluded that the Defendant’s total
Offense Level was 23, his Criminal History category was VI, and
the advisory Guideline range was 92-115 months.
On May 18, 2010, the Court held Cotton’s sentencing. At
sentencing, Cotton was represented by Assistant Federal Defender

1

Thomas Young, Esq.

Much of the hearing was devoted to the first

step of the sentencing process: the calculation of the advisory
Guideline range, with the central issue being the applicability
of United States Sentencing Guideline (“USSG”), Section
2K2.1(b)(4)(A)(whether the firearm was stolen).

After hearing

testimony and the arguments of counsel, the Court concluded that
the Government had satisfied its burden of showing that Cotton
possessed a stolen firearm and therefore applied the two-level
enhancement under Section 2K2.1(b)(4)(A)(6).
At the second step of the sentencing process, the Court
heard arguments regarding Cotton’s motion for a downward
departure. Counsel presented two grounds for departure: (a) overrepresentation of criminal history (USSG § 4A1.3); and (b) the
proposed changes to eliminate the so-called “recency”
provision under USSG § 4A1.1(e).

Section 4A1.1(e) of the 2009

version of the USSG stated that, when calculating a defendant’s
criminal history points at step one of the sentencing process,
the Court should add “2 points if the defendant committed the
instance offense less than two years after release from
imprisonment on a sentence counted under (a) or (b) . . . .” USSG
§ 4A1.1(e).

Counsel for Petitioner argued that because the

Sentencing Commission adopted an amendment to the Guidelines that
would eliminate the “recency” provision from the version of the
Guidelines effective in only a few months (November 1, 2010) from

2

the sentencing date, the Court should depart downward to reflect
what the advisory Guideline range would have been had the
“recency” provision already been eliminated. In making this
argument, counsel
stated that he did not “want to[,] and recognizing that the
‘recency’ argument can be made at Steps 2 and 3 of Sentencing[,]
exhaust [his] arguments about [§ 4A1.1(e)] because [he has] a few
more things to say about § 3553(a) and how that also dovetails
into that, but as far as the departure motion goes, I’ll leave it
at that for now, but I might revisit a few of these themes.”
[Sentencing Hearing Tr. at 39.]
At the time of sentencing, Section 4A1.1(e) remained in full
force and effect.

After hearing the Government’s opposition to

the Defendant’s motion for downward departure, the Court denied
Cotton’s departure motion. The Court recognized that it had the
authority to depart and expressly stated that it “will consider .
. . both a variance argument and a departure argument, that the
Guideline Commission is contemplating or has recommended that
[Section] 4A1.1(e) be deleted from the guidelines as to the
recency provision and they have put that to Congress for
consideration.” (Sentencing Hear’g Tr. at 43).

The Court

continued, holding that “the fact that the recency provision is
still in existence today, to the extent it’s to be determined a
departure motion...[the court] decline[s] to depart on that

3

ground as well.” (Sentencing Hear’g at Tr. at 45).
At the third step of sentencing, the Court heard arguments
from the parties and gave Cotton an opportunity to speak. The
Court also “considered [the argument under § 4A1.1(e)] in the
context of a variance argument” from defense counsel. (Sentencing
Hear’g Tr. at 45.)

When making its findings on the record

regarding the sentencing factors under 18 U.S.C. § 3553(a), the
Court stated “[a]nd so that the record is quite clear, [defense
counsel] has argued that if this sentencing were to occur in the
fall and Congress were to adopt the Sentencing Commission’s
recommendation that the recency provision, 4A1.1(e), not apply
and that would have afforded a downward adjustment of 2 points,
that I nonetheless would have given the same sentence.” (Id. at
86).

Hence, the Court was clear that it had varied downward and

calculated a Criminal History Category of V (resulting in a
guideline range of 84-105 months), but stated that even with the
lack of recency provision in the Guidelines it would give the
same sentence. (Id. at 87). The Court then imposed a sentence of
105 months in prison and three years of supervised release. (Id.
at 88-89].
Cotton filed a timely appeal in which he argued that the
Court abused its discretion by enhancing the defendant’s sentence
for the gun being stolen.
affirmed the Court.

The Third Circuit Court of Appeals

See United States v. Cotton, 415 Fed. Appx.

4

403 (3d Cir. 2011).
On February 28, 2012, Cotton filed this petition to vacate
his sentence.

On February 29, 2012, the Court issued a Notice

and Order under United States v. Miller, 197 F.3d 644 (3d Cir.
1999) advising the Petitioner of his rights and ordering that he
inform the Court of his decision within forty-five days. [Docket
Item No. 2.]

The Court received no response and Ordered the

United States to file an answer to the Section 2255 petition.
II.

LEGAL ANALYSIS
A petition under 28 U.S.C. § 2255 is a collateral attack on

the legality of a sentence.

See In re Dorsainvil, 119 F.3d 245,

249 (3d Cir. 1997); United States v. Cannistraro, 734 F.Supp.
1110, 1119 (D.N.J. 1990).

Section 2255 provides, in pertinent

part:
A prisoner in custody under sentence of a court . . .
claiming the right to be released upon the ground that
the sentence was imposed in violation of the
Constitution or laws of the United States . . ., or is
otherwise subject to collateral attack, may move the
court which imposed the sentence to vacate, set aside
or correct the sentence. . . .
The grounds for collateral attack on a sentence pursuant to
Section 2255 are limited, see United States v. Addonizio, 442
U.S. 178, 184 (1979), and the petitioner in a Section 2255 case
bears the burden of establishing any claim asserted in the
petition.

See Gov't of Virgin Islands v. Nicholas, 759 F.2d

1073, 1081 (3d Cir. 1985).

A motion under Section 2255 will be

5

granted only if the sentence results “in a fundamental defect
which inherently results in a complete miscarriage of justice” or
“an omission inconsistent with the rudimentary demands of fair
procedure.” Hill v. United States, 368 U.S. 424, 428 (1962);
United States v. Cleary, 46 F.3d 307, 311 (3d Cir. 1995).
Here, Petitioner claims that the “fundamental defect”
warranting habeas relief is that counsel was ineffective at
sentencing.

Specifically, Cotton argues that his counsel was

ineffective at sentencing in two ways.

First, Cotton contends

that counsel failed to “mov[e] this Court to exercise its
discretion and disregard USSG § 4A1.1(e) as a policy
disagreement and fail[ed] to distinguish whether he made a
request departure [sic] or variance request.” [Petition, at 5].
Specifically, Cotton claims that counsel’s performance was
constitutionally deficient because counsel “failed [Cotton] on
the second and third steps” of the sentencing process by not
properly presenting “the ‘recency’ issue to the Court,” and
counsel “froze-up” and abandoned the issue at sentencing and on
appeal and failed to “formally preserve the issue.”
at 7, 8].

[Petition,

This failure on the part of counsel, according to

Cotton, “caused [him] to receive more time [in prison] than he
would otherwise have received” because his advisory guideline
range would have been “77-to-96 months” had the argument been
properly raised, not “92-to-115 months” as calculated by the

6

Court. [Petition, at 11].

Cotton asserts that, had he known

counsel would not advance the issue of the impending elimination
of the “recency” provision, Cotton would not have “enter[ed] into
his agreement with the government, and plead[ed] guilty.”
[Petition, at 9.]

As the government points out, however, it is

unclear what agreement Petitioner is referring to as there was no
plea agreement here.
Second, Cotton claims counsel was ineffective by failing to
“object to the government’s use of sentencing factors” that
“prejudiced [him] by allowing him to be sentenced to a higher
range.” [Petition, at 12].

Cotton explains that counsel should

have objected to the Government’s use of Cotton’s August 19,
2005, New Jersey state court drug distributions convictions as
the predicate offenses.
Under Strickland v. Washington, to establish a claim of
ineffective assistance of counsel in violation of his Sixth
Amendment rights, Petitioner must show both that: (1) counsel’s
performance fell below an objective standard for reasonableness
under prevailing standards of professional norms; and (2) that
counsel’s failures prejudiced him.

See Strickland v. Washington,

466 U.S. 668, 687 (1984); United States v. Sanders, 165 F.3d 248,
250 (3d Cir. 1999).

To satisfy the first prong of the Strickland

test, Petitioner must show that counsel’s performance was not
only deficient, but fell below “prevailing professional norms”

7

and was “outside the wide range of professionally competent
assistance.”

Strickland, 466 U.S. at 690.

For example,

counsel’s failure to protect the defendant’s right to testify
would render his or her performance “below the constitutional
minimum” and thereby violate the first prong of Strickland.
United States v. Teague, 953 F.2d 1525, 1534 (11th Cir. 1992).
But, under Strickland, trial counsel’s “strategic choices . . .
are virtually unchallengeable,” Strickland, 466 U.S. at 690, and
a court “reviewing counsel’s performance must be highly
deferential.”

United States v. Lore, 26 F. Supp.2d 729, 738

(D.N.J. 1998)(Rodriguez, J.)(citing Strickland, 466 U.S. at 689).
To satisfy the second prong of the Strickland test, the
Petitioner must demonstrate that he or she suffered prejudice as
a result of counsel’s deficiency.

Strickland, 466 U.S. at 689.

Prejudice means that “there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding
would have been different.”

Id.

A “reasonable probability” is

“a probability sufficient to undermine confidence in the outcome”
of the case.

Id. at 694.

Moreover, nothing prevents a court

from analyzing whether the petitioner has proven prejudice, and
after concluding that the petitioner has not, denying the
petitioner’s claim without ever analyzing counsel’s performance.
Strickland, 466 U.S. at 697 (“If it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient

8

prejudice, . . . that course should be followed”); Smith v.
Robbins, 528 U.S. 259, 286, n. 14 (2000).
Initially, Cotton cannot satisfy the second prong of the
Strickland test.

First, Cotton cannot show prejudice as a result

of counsel’s argument about the proposed elimination of the
“recency” provision.

Cotton argues that, had counsel properly

raised this issue, the Court would not have added two criminal
history points and therefore would have sentenced him to a lesser
sentence.

The record, however, reflects quite the opposite.

At

sentencing, the Court expressly stated that it would have
sentenced Cotton to a 105-month sentence regardless of the
outcome of the Cotton’s “recency” argument and any commensurate
recalculation of the advisory Guideline range.
Hear’g Tr. at 86.

See Sentencing

The Court explained that, even if Section

4A1.1(e) had been eliminated and did not apply (thereby reducing
Cotton’s criminal history points by two and making him a Criminal
History Category V rather than VI), the Court “nonetheless would
have given the same sentence.” Id. at 86.

Recognizing that

accepting the “recency” provision argument advanced by counsel
would result in Cotton having a Criminal History Category of V
(compared with VI), and therefore, a Guideline range would be 84
to 105 months (not 92 to 115 months), the Court was clear that
the result would have been the same – a 105-month sentence:
I certainly recognize that I have the authority to vary
on [“recency” provision] ground[s]. At this juncture, I
9

choose not to. But if it were to be determined that
should [I] have varied downward because of that lack of
recency provision, I would still be giving the same
sentence that I’m about to impose.
Id. at 87. (emphasis added).

Thus, because Cotton cannot show

that he was prejudiced (i.e., that he would have received a more
lenient sentence than the 105-month term or the results of the
sentencing would somehow have been different) even if counsel had
been successful in advancing the argument Cotton now suggests,
his petition will be denied on this ground.

See Strickland, 466

U.S. at 697.
Nor can Cotton show prejudice in counsel’s failure to object
to the use of Cotton’s two drug-distribution convictions from
August 19, 2005 as predicate offenses under USSG § 2K2.1(a)(2)
and the subsequent calculation of a Base Offense Level of 24.
Both drug-distribution convictions were properly considered at
the first step of sentencing as predicate offenses under Section
2K2.1(a)(2).
Section 2K2.1(a)(2) of the USSG subscribes a base
offense level of 24 if a defendant has committed the instant
offense subsequent to sustaining at least two felony convictions
for crimes of violence or controlled substance offenses.
USSG § 2K2.1(a)(2).

See

A “controlled substance offense” for Section

2K2.1(a)(2) purposes is “an offense under federal or state law,
punishable by imprisonment for a term exceeding one year, that
prohibits the . . . distribution . . . of a controlled substance
10

. . . or the possession of a controlled substance . . . with
intent to . . . distribute.” USSG § 2K2.1 App. Note 1; USSG §
4B1.2(b).
Both Cotton’s convictions for “possession of CDS with intent
to distribute within 1,000 feet of a school” for which he was
arrested on August 19, 2004 and March 15, 2005 (and sentenced to
four years imprisonment on August 15, 2005) squarely fit into the
definition of “controlled substance offenses” and were properly
considered as predicate offenses for Section 2K2.1(a)(2). As
such, any objection by counsel at sentencing that the Court
should not consider these offenses as predicates would have been
entirely without merit. Accordingly, Cotton cannot show that he
was prejudiced and his petition will be denied on this ground.
See Strickland, 466 U.S. at 697.
Finally, Cotton has not shown that counsel’s performance was
“outside the wide range of professionally competent assistance”
(in satisfaction of the first prong of the Strickland test).
Strickland, 466 U.S. at 690.

Cotton alleges that, during the

sentencing hearing, counsel “failed [Cotton] on the second and
third steps” of the sentencing process when he did not properly
present “the ‘recency’ issue to the Court.” [Petition at 7, 8].
To the contrary, the transcript of the sentencing hearing makes
clear that counsel did in fact raise the issue of the impending
elimination of the “recency” provision at both the second and

11

third steps of sentencing.

At step two of the sentencing

process, counsel moved for a downward departure, stating “and
this I think you Honor, may also — may fall under the 3553(a)
factors, may be a variance argument as well, so I would like to
maybe reiterate that argument briefly when I [argue for a]
variance . . . that the U.S. Guideline Commission is proposing
that there be an elimination of the recency provision.”
(Sentencing Hear’g Tr. at 37-38).

It is clear that counsel

recognized that his argument based on the proposed Guideline was
properly made as a motion for downward departure and variance but
that counsel was making the “recency” provision argument, at that
stage, as a departure motion.

It is also clear that the Court

recognized that counsel’s argument was first made as a departure
motion.

(Sentencing Hear’g Tr. at 43.)(The Court “consider[ed]

[the argument] both [as] a variance argument and a departure
argument, that the Guideline Commission is contemplating or has
recommended that 4A1.1(e) be deleted from the guidelines as to
the recency provision . . . .”)

Ultimately, at step two, the

Court denied “the downward departure” finding that “the fact that
the recency provision is still in existence today, to the extent
it’s to be determined a departure motion . . . [the Court]
decline[s] to depart on that ground.” (Id. at 44-45).

There can

be little doubt that counsel properly raised the “recency”
argument at the second step of sentencing.

12

The record is equally clear that counsel revived the
argument regarding the proposed elimination of the “recency”
provision when he argued for a downward variance at the third
step of sentencing. Counsel confirmed that he was indeed making a
“recency” provision argument to support a request for downward
variance after the Court summarized the argument. (See id. at 4445) Clearly, the Court considered counsel’s “recency” provision
argument as a downward variance motion before rejecting it. (Id.
at 45.)
In sum, Cotton’s allegations of ineffectiveness of counsel
are unsupported by the record and meritless.

The Petition will

therefore be denied in its entirety.
III. CONCLUSION
For the foregoing reasons, Cotton’s motion to vacate the
sentence and dismiss his petition under 28 U.S.C. § 2255 on the
merits is denied without an evidentiary hearing.

s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge
Dated: February 21, 2013

13