TERRY v. UNITED STATES OF AMERICA

Filing 21

OPINION. Signed by Judge Kevin McNulty on 8/27/2019. (sm)

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

QUANIR TERRY,
Civil Action No. 17- 2673 (KM)
Petitioner,
OPINION

v.
UNITED STATES OF AMERICA.
Respondent.

APPEARANCES:
Quanir Tern’. Petitioner Pro Sc
70229-050
USP Allenwood
U.S. Penitentiary
P.O. Box 3000
White Deer, PA 17887

Joshua Leigh Saber. Esq.
Assistant United States Attorney
United States Attorney’s Office
970 Broad Street. Suite 700
Newark, NJ 07102
On behalf of Respondent.
McNulty, United States District Judge
INTRODUCTION

I.

Petitioner Quanir Terry (“Petitioner”), a prisoner currently confined at USP Allenwood in
Allenwood. Pennsylvania, moves to vacate, correct, or set aside his federal sentence pursuant to
28 U.S.C.

§

2255. (ECF No. I.) Respondent, United States of America (“Respondent”) opposes

the motion. (ECF No. 13.) For the reasons explained in this Opinion, the Court will deny the
motion and will deny a certificate of appealability.
II.

FACTUAL BACKGROUND & PROCEDURAL HISTORY
Petitioner was originally charged in the United States District Court for the District of

New Jersey in a two-count indictment of possession of a firearm by a convicted felon in violation
of 18 U.S.C.
U.S.C.

§

§

922(g)(1) and possession with intent to distribute heroin in violation of2l

841(a)(1) and (b)(1)(C). (United S/cites v. Teny, 3-216-cr-210. (hereinafter “16-cr-

210”) (16-cr-210 ECFNo. lj)
Following a plea agreement, Petitioner entered a guilty plea to count one of the
indictment, possession of a firearm by a convicted felon. The plea agreement included. ui/er

a/ia. the following provisions:
As set forth in Schedule A, this Office and Quanir Terry waive
certain rights to file an appeal, collateral attack, writ, or motion after
sentencing, including but not limited to an appeal under 18 U.S.C. §
3742 or a motion under 28 U.S.C. § 2255.
Except as otherwise provided in this agreement, this Office reserves
its right to take any position with respect to the appropriate sentence
to be imposed on Quanir Tern’ by the sentencing judge, to correct
any misstatements relating to the sentencing proceedings, and to
provide the sentencing judge and the United States Probation Office
all law and information relevant to the sentencing. favorable or
otherwise. In addition, this Office may inform the sentencing judge
and the United States Probation Office oE (1) this agreement and
(2) the full nature and extent of Quanir Terry’s activities and
relevant conduct with respect to this case.
(16-cr-210 ECF No.25 at 3.)
Prior to sentencing, the United States Probation Office prepared a Presentence
Investigation Report (hereinafter, tSR”). The PSR calculated a 24 base offense level as a result
of the instant firearm possession offense occurring subsequent to two prior drug convictions.

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(PSR

§

4.) He also received a four-level increase pursuant to United States Sentencing

Guidelines (“U5SG”) 1K2.1(b)(6)(B) because his crime of conviction occurred while he was
committing another felony ouiènse, possession and distribution of heroin. (PSR

20.) The PSR

then decreased the total offense level by two for acceptance of responsibility under
and one level pursuant to
level of 25. (PSR

§

§

§

3131.1(a)

3131.1(b). (PSR 26-27.) Thus, the PSR calculated a total offense

28.) Based on a variety of prior offenses, the PSR determined a criminal

history’ score of 13 and a corresponding criminal history’ categon’ of VI. (PSR

§

28, 38, 40.)

Petitioner’s total offense level and criminal history category resulted in a guideline imprisonment
range of 110 to 137 months. (PSR

§

83.)

At Petitioner’s sentencing on December 22, 2016, this Court adopted the PSR as its
findings of facts in the case. (ECF No. 15-3 at 3.) Petitioner was subsequently sentenced to 110months incarceration followed by a three-year term of supervised release. (12-cr-6 100 ECF No.
28 at 2-3.)
Petitioner did not file a direct appeal challenging his conviction or sentence. (ECF No. I
at 2.) On April 18, 2017, Petitioner filed a motion to vacate, set aside, or correct his conviction
or sentence under 28 U.S.C.

§

2255. (ECF No. I.) Respondents filed a letter brief in lieu ofa

formal answer on October 3,2017. (ECF No. 15.) Petitioner filed a reply on November21,
2017. (ECF No. 16.) The matter is fully briefed and ready for disposition.
III.

STANDARD OF REVIEW
Section 2255 provides in relevant part that:
[al prisoner in custody under sentence of a court established by Act
of Congress 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 may move the court which imposed the sentence
to vacate, set aside or correct the sentence.
...

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28 U.S.C.

§ 2255(a).

A district court must hold an evidentiary hearing on a

§

2255 motion unless the “motion

and the files and records of the case conclusively show” that the movant is not entitled to relief.
28 u.s.c.

§

2255(b); see also United Staiac

i

Booth, 432 F.3d 542, 545—46 (3d Cir. 2005).

Here, the record demonstrates that Petitioner is not entitled to relief on his claims because his
arguments lack merit.
IV.

DISCUSSION
Petitioner raises four grounds for relief which he titles as follows
1. “Ineffective assistance of counsel.”
2. “Breach of government’s contract (Plea agreement).”
3. “The court appointed counsel was grossly ineffective.”
4. “Based upon the derelictions of duty and performance of the court appointment
counsel.”
The underlying argument in all four grounds listed in Petitioner’s motion is that his

sentence was a result of the PSR’s application of ineligible criteria that erroneously raised his
offense level computation. More specifically, Petitioner submits first, that the computation was
affected by erroneous consideration of the facts of a charged offense that was dismissed in
accordance with the plea agreement. He also submits that the computation erroneously
considered two prior drug convictions as a controlled substance offense or a crime of violence
pursuant to USSG

§ 2K2. I (a)(2). He insists that his counsel was ineffective by failing to object

to the improper computation and he is entitled to be resentenced.
The government responds that Petitioner’s motion fails for all of the following reasons.
First, because Petitioner waived his right to challenge his sentence according to the terms of the

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plea agreement into which he entered. (ECF No. 15 at 4-6.) Further, that contrary to Petitioner’s
claim that he was unduly punished for conduct that should not have been considered for
sentencing purposes, he has not demonstrated any prejudice as he benefitted from the favorable
plea agreement which he entered into and the subsequent sentence

.

(Id.)

A. Claims Related to Petitioner’s Prior Drug Convictions and Base Offense Level

Petitioner submits that the PSR base offense level calculation, which considered his two
predicate state convictions for controlled substance offenses, was based on an erroneous
interpretation of his state court convictions. Petitioner further submits that his counsel was
ineffective for failing to object to this calculation either prior to or at his sentencing.
Petitioner has two prior state convictions for distribution of a controlled substance in a
school zone. N.J.S.A. 2C:35-7. (PSR

§ 35. 37.) As a result of these two convictions, the

United States Probation Department calculated Petitioner’s base offense level to be 24. (PSR

§

4.) At the outset, the Court notes that these two convictions were identified as the basis for a 24
base offense level in Petitioner’s written plea agreement, which he signed more than two weeks
prior to his guilty plea hearing. (1 6-cr-2 10 ECF No. 25 at 8.)
Petitioner now argues that the prior convictions should not have been used to raise his
base offense level under USSG

§

2K2.1 (a)(2) (base offense level is “24. if the defendant

committed any part of the instant offense subsequent to sustaining at least two felony convictions
of... a controlled substance offense”).
Here, Petitioner relies on an unpublished Third Circuit Court of Appeals opinion, where
the court held that an immigration petitioner’s state court drug convictions did not qualify as
aggravated felonies for immigration removal purposes. See C’hang-Cniz v. A11y Gen 659 F.
App’x 114.

*

119 (3d Cir. 2016). While Petitioner correctly asserts that both he and Chang-Cruz

)

were both convicted of the same New Jersey state drug offenses, those prior convictions were not
considered for the same purpose. Chang-Cmz’s drug convictions were considered for purposes
of immigration-related consequences, namely removal. To count for that purpose, the prior
conviction was required to be an “aggravated felony.” See Chang-&nz, 659 F. App’x at 115.
Petitioner’s prior drug offenses, on the other hand, were being considered for sentencing
purposes consistent with USSG

§

2K2.1(a)(2). Unlike immigration law, the Sentencing

Guidelines calculation of criminal history points includes a wide variety of prior convictions,
which do not need to have been “aggravated felonies.” The 2K2.1(a)(2) enhancement requires,
not an aggravated felony, but a ‘contro1led substance offense,” as defined in U.S.S.G.
See USSG

§

§

4B 1.2

2K2.l(a)(2) & app. Note ii

Thus the Third Circuit has held that Chang-Cruz, an immigration case, did not control the
issue of whether a state-law drug conviction under N.J. Stat. Ann.
controlled substance offense under U.S.S.G.

§

§

2C:35-7 qualified as a

4B1.1 and 4B1.2. United States v. ,Jackson, 711 F.

App’x 90,92 (3d Cir. 2017). See also Gonzalez v. United States, No. 16-cv-9412, 2017 WL
4119585, at *2*3 (D.N.J. Sept. 15, 2017) (rejecting the application of Chang-Cruz when
determining if a defendant’s prior drug convictions qualit’ him as a career offender under the
Sentencing Guidelines). And the Third Circuit has held directly that N.J. Stat. Ann.

§

2C:35-7(a)

(possession with intent to distribute heroin in a school zone) qualifies as a “controlled substance
offense” under the definition in U.S.S.G.

§

4B 1.2. United States

i

Lanipley, 723 F. Appx 152,

154 (3d Cir. 2018).

Chang-Cruz cited the immigration law definition of “aggravated felony,” which includes “(B)
illicit trafficking in a controlled substance (as defined in section 802 of Title 21). including a drug
trafficking crime (as defined in section 924(c) of Title 18)” 8 u.s.c § I l0l(a)(43). These requirements do
not read onto LI.s.s.G. § 2K2. l(a)(2). which requires only a prior conviction of two “controlled substance
offense[sl” under the broad definition of V.S.S.G. § 4B 1.2(b), which explicitly refers to state-law
felonies.
I

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Consequently, Petitioner has not established that his counsel’s performance implicates
either Strickland prong. See Strickland, 466 U.S. at 687 (“[Bloth deficiency and prejudice must
be proven to support a valid claim for relief for ineffective assistance of counsel.”) The record
reflects that his counsel made considerable arguments highlighting mitigating factors such as her
client’s difficult childhood. his having made contact with the criminal justice system at a very
young age and his subsequent pattern of recidivism. (ECF No. 15-3 at 44-47.) Counsel had no
legal basis to object to how the Guidelines were applied to Petitioner’s guidelines offense level.
Thus, trial counsel was not ineffective for failing to object to a valid base offense level
computation. Counsel’s performance was not deficient and no prejudice resulted from counsel’s
failure to lodge what amounted to an invalid objection.
B. Claims Related to Petitioner’s Four-Level Enhancement
Petitioner also submits that a dismissed count in the indictment was improperly
considered, resulting in an increased offense level. Consideration of the dismissed count, he
argues. was a breach of the plea agreement, and his counsel was ineffective for failing to object.2
More specifically, he argues that the four-level increase for possessing “any firearm

...

in

connection with another felony offense” was improper. He considers this enhancement to be
additional punishment based on conduct that the plea agreement stipulated would be dismissed.
Respondent argues that Petitioner is prohibited from raising this claim because the plea
agreement waives collateral attacks like this one:
II. Quanir Terry knows that he has and, except as noted below in this
paragraph, voluntarily waives, the right to file any appeal, any collateral attack, or
any other Tit or motion. including but not limited to an appeal under 18 U.S.C. §
3742 or a motion under 28 U.S.C. § 2255, which challenges the sentence imposed
Petitioner raises this claim within the context of an ineffective assistance claim in his motion. In his
reply, however, he states that lie “does not claim that counsel was ineffective because the counts that were
dismissed were used at sentencing.” (ECF No. 16 at 5.)

2

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by the sentencing court if that sentence falls within or below the Guidelines range
that results from the agreed total Guidelines offense level of25.
(ECF No. 15 at 4; 1 6-cr-21 0 ECE No. 25 at 8.) Such a waiver will be enforced unless
enforcement would constitute a “miscarriage ofjustice.” See Mabry

Shut/el, 632 F. A’ppx

707, 710 (3d Cir. 2015) (citations omitted). (Plea agreement waivers are generally enforced
where the court determines “(1) that the issues [the defendant] pursues on appeal fall within the
scope of his appellate waiver and (2) that he knowingly and voluntarily agreed to the appellate
waiver, unless (3) enforcing the waiver would work a miscarriage ofjustice.”). No such showing
has been proffered.
It is true that the tern-is of Petitione(s plea agreement included a provision that count two
of the indictment, knowingly and intentionally distributing heroin, would be dismissed in
exchange for Petitioner’s guilty plea to count one of the indictment, felon in possession of a
firearm. (16-cr-flO ECF No.25 at 8.) That same plea agreement, however, contgained a
stipulation that that the facts of the heroin distribution charge would be considered as relevant
conduct and used as the basis for an upward adjustment pursuant to USSG

§

2K2.1(b)(6)(B):

S. The defendant used or possessed a firearm and ammunition in connection with
another felony offense. The offense level is therefore increased by 4 levels

(Id.) Section 2K2.l(b)(6)(B) of the Sentencing Guidelines provides for a four-level increase in
the Guidelines base offense level “[i]f the defendant used or possessed any firearm or
ammunition in connection with another felony offense; or possessed or transferred any firearm or
ammunition with knowledge, intent, or reason to believe that it would be used or possessed in
connection with another felony offense... USSG

§

2K2.l(b)(6)(B). Moreover, Application

Note 14 provides, “another felony offense” is defined as “any Federal, state, or local offense,
other than the explosive or firearms possession or trafficking offense, punishable by

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imprisonment for a term exceeding one year, regardless u/whether a criminal charge was
brought, or a convection obtained.” Id. at
States

i&

§. 2K2. I cmt. n.j 4(C) (emphasis added); see United

Mayo. 425 F. App’x 162. 162 (3d Cir. 2011) (not precedential) (affirming application of

4-point enhancement where the Government had agreed to dismiss the charge that constituted the
conduct underlying the enhancement)..
Petitioner has not made a sound argument establishing why the conduct underlying his
dismissed drug charge should not be considered for sentencing purposes, as he agreed. See
United States v. Frierson, 945 F.2d 650, 654 (3d Cir. 1991) (“The Guidelines require
consideration of conduct relevant to the offense of conviction in determining specific offense
characteristics.”) While Petitioner maintains that the sentence enhancement negated any
expected benefit from the plea agreement, he has not established that the Court could not
consider the offense. Moreover, Petitioner did received a considerable benefit from having count
two of the indictment dismissed. That offense of conviction, as Respondent points out, would
have been Petitioner’s third “controlled substance offense,” exposing him to classification as a
career offender pursuant to the guidelines, and a vastly increased sentence in the range of twenty
years. See U.S.S.G.

§ 481.1; ECF No. IS at 4.)

Petitioner states that “the court appointed counsel allowed. encourage[d]. badger[edj,
coerce[dJ. threaten[edj and place[dJ under duress to take and enter into a deal

(ECF No. I

at 6.) Notwithstanding Petitioner’s bare assertion that his counsel engaged in untoward conduct,
such as coercion, to convince him to accept the plea agreement, the record reflects otherwise.
Petitioner signed a written plea agreement and also engaged in an extensive colloquy about the
voluntariness of his guilty plea with this Court at his guilty plea hearing. (I 6-cr-2 10 ECF No.
25, 17-cv-2673 ECF No. 15-2 at 9-24.) Moreover, despite Petitioner’s expressed disappointment

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with the PSR offense level computation, he points to no error. Moreover, it was the very offense
level to which he agreed:
9. In accordance with the above, the parties agree that the total Guidelines
offense level applicable to Quanir Terry is 250e “agreed total Guidelines offense
level”).
(itt)

Petitioner has not established deficient representation or prejudice. For the reasons
explained in this section, the Court finds that Petitioner’s claims do not warrant relieE
Petitioner’s motion to vacate, set aside, or correct his conviction or sentence is denied.
CONCLUSION

V

For the reasons discussed above, Petitioner’s
VI.

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2255 motion is denied.

CERTIFICATE OF APPEALABILITY
This Court must determine whether Petitioner is entitled to a certilicate of appealability

in this matter. See Third Circuit Local Appellate Rule 22.1. The Court will issue a certificate of
appealability if the petitioner “has made a substantial showing of the denial of a constitutional
right.” 28 U.S.C.

§

2253(c)(2). Based on the discussion in this Opinion, Petitioner has not made

a substantial showing of denial of a constitutional right. This Court will not issue a certificate of
appealability.
An appropriate order follows.

Dated

August

27,

2019

KEVI MCNULTY
United States District Judge

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