Wood v. United States of America

Filing 2

ORDER denying Motion to Vacate, Set Aside or Correct Sentence (2255); mailed to Crystal Dawn Wood #28998-064 ALICEVILLE-FCI PO Box 4000 Aliceville, AL 35442. Signed by Honorable Robin J. Cauthron on 1/12/17. (lg)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
UNITED STATES OF AMERICA,
Plaintiff,
vs.
CRYSTAL DAWN WOOD,
Defendant.

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No. CR-14-217-24-C
CIV-16-717-C

MEMORANDUM OPINION AND ORDER
Defendant, appearing pro se, filed a Motion under 28 U.S.C. § 2255 to Vacate, Set
Aside, or Correct Sentence by a Person in Federal Custody (Dkt. No. 969). In her Motion,
Defendant asserts that her court-appointed counsel was ineffective in her defense of the
underlying case where Defendant entered a guilty plea to a one-count Superseding
Information, charging conspiracy to distribute drugs in violation of 21 U.S.C. §§ 846 and
841(a)(1)(C). The Court accepted Defendant’s guilty plea and sentenced her to 84 months’
imprisonment. Defendant also requests relief pursuant to Amendment 794 and 18 U.S.C.
§ 3553. Plaintiff responded to the Motion and it is now at issue.
I – Ineffective Assistance of Counsel
To prevail on her claim of ineffective assistance of counsel, Defendant must meet the
two-pronged analysis set forth in Strickland v. Washington, 466 U.S. 668 (1984). The first
prong requires that Defendant “show that counsel’s representation fell below an objective
standard of reasonableness.” Id. at 688. Second, she must demonstrate that “the deficient
performance prejudiced the defense.” Id. at 687. Defendant bears a heavy burden in

establishing the first element, as “[c]ounsel is strongly presumed to have rendered adequate
assistance and made all significant decisions in the exercise of reasonable professional
judgment.” Dever v. Kan. State Penitentiary, 36 F.3d 1531, 1537 (10th Cir. 1994) (citations
omitted). As for the prejudice prong, Defendant “must establish that there is a reasonable
probability that, but for counsel’s error, the result of the proceeding would have been
different.” Byrd v. Workman, 645 F.3d 1159, 1168 (10th Cir. 2011) (internal quotation
marks and citations omitted). In order to demonstrate prejudice in the context of a guilty
plea, Defendant must establish a “reasonable probability that, but for counsel’s errors, [s]he
would not have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart,
474 U.S. 52, 59 (1985).
Defendant asserts six grounds of ineffective assistance of counsel. The Court has
considered each argument and reviewed the record. Defendant’s grounds one through four
all relate to counsel’s strategy in regards to the evidence presented. The Court finds that
counsel’s actions did not fall below an objective standard of reasonableness. Counsel did not
pursue some of the strategies Defendant suggests because the evidence made those
arguments frivolous. Counsel did however, raise issues related to the sufficiency of the
co-conspirator statements and whether they were made in furtherance of the conspiracy in
a request for a James hearing* (Dkt. No. 373). He also challenged the conspiracy by
attempting to sever Defendant from the proceedings (Mot. to Sever, Dkt. No. 376) and

*

See United States v. James, 590 F.2d 575 (5th Cir. 1979).
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vigorously challenged the evidence through various other motions before the Court. (Mot.
for Rule 404(b) Notice, Dkt. No. 370; Mot. for Bill of Particulars, Dkt. No. 371; Mot. in
Limine, Dkt. No. 374; Mot. for in Camera Review, Dkt. No. 375; Mot. to Suppress, Dkt. No.
377.) Defendant’s conclusory statements regarding the second prong fail to establish a
reasonable probability that, but for counsel’s errors, she would have insisted on going to trial.
Thus, counts one through four are without merit.
Defendant’s fifth ground for ineffective assistance of counsel is that counsel failed to
object to the stated drug quantity. This argument is without merit because counsel did object
to paragraph 21 of the Presentence Report (“PSR”), stating “[t]he presentence report states
that based on a series of text messages between Defendant and Anthony Dewayne Cox on
March 7, 2014, investigators believe Ms. Wood purchased a pound of marijuana from Cox
on that date. Defendant states she never bought marijuana from Cox.” (PSR, Dkt. No. 794,
p. 29.) Further, counsel stated in the objection to paragraph 25 that “[b]ased on the objection
to 21, Defendant should not be held accountable for the one pound of marijuana attributed
to her from the alleged March 7, 2014 transaction with Mr. Cox. It is recognized if this
objection is credited, it will not alter the advisory guideline range.” (PSR, Dkt. No. 794, p.
30.)
In regard to the methamphetamine amount, counsel did not object to the quantity, but
Defendant agreed to the stipulation in the plea agreement. Before the Court, counsel for
Defendant explained the plea agreement, stating, in part, “there is a stipulation as to the
quantity of methamphetamine in this particular case, that being 400 to 700 kilograms.” (Tr.
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of Plea, Dkt. No. 994, p. 13.) The Court explained Defendant’s rights and found her to be
competent to enter the plea. Defendant has failed to meet either Strickland prong with this
claim.
The sixth ground for ineffective assistance of counsel is that counsel failed to argue
Defendant’s sentence was unreasonable in light of her involvement in the case. However,
this ground is unsupported by the record. Defendant’s counsel addressed sentencing
disparities in the Sentencing Memorandum based on her “secondary role in the offense (as
compared to her co-defendants).” (Def.’s Sent. Mem., Dkt. No. 806, p. 5.) Counsel also
requested a downward variance on multiple occasions. (PSR, Dkt. No. 794, p. 34); Def.’s
Sent. Mem., Dkt. No. 806; (Tr. of Sent, Dkt. No. 995, p. 9-15.) Thus, Defendant’s argument
fails.
II – Amendment 794
Defendant argues she qualifies for a retroactive minor role reduction pursuant to
Amendment 794, issued by the United States Sentencing Commission amending commentary
to U.S.S.G. § 3B1.2. Defendant relies on United States v. Quintero-Leyva, 823 F.3d 519 (9th
Cir. 2016), where the Ninth Circuit stated “[w]e conclude that the Amendment resolved a
circuit split, and was intended as a clarifying amendment. We therefore hold that it applies
retroactively to direct appeals.” Id. at 523. However, Quintero-Leyva is not controlling
precedent. The Tenth Circuit has determined that only those amendments specifically
enumerated in § 3582(c)(2) are retroactive. See United States v. Avila, 997 F.2d 767, 768
(10th Cir. 1993); U.S. Sentencing Guidelines Manual § 1B1.10(a)(2). Amendment 794 is
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not specifically enumerated and cannot be retroactive. See United States v. Aikman, No.
09-10097-01-JTM, 2016 WL 7210721, at *1 (D. Kan. Dec. 13, 2016); United States v.
Harrison, No. 12-CR-0016-CVE-1, 2016 WL 6310768, at *2 (N.D. Okla. Oct. 27, 2016),
appeal filed (10th Cir. Nov. 16, 2016); United States v. Fouse, No. 13-CR-0108-001-CVE,
2016 WL 4516066, at *2 (N.D. Okla. Aug. 29, 2016).
III – 18 U.S. C. § 3553
Defendant argues the Court failed under Booker to properly consider the mitigating
factors pursuant to 18 U.S.C. § 3553. See generally United States v. Booker, 543 U.S. 220
(2005). Defendant appears to assert a secondary argument that counsel was ineffective by
not pursuing the same Booker argument.
As previously discussed herein, counsel addressed mitigating factors when requesting
a downward variance on Defendant’s behalf. The Court finds that these actions did not fall
below an objective standard of reasonableness. Furthermore, counsel had no reason to
specifically pursue a Booker argument because the sentencing memoranda prepared by
Defendant’s counsel and Plaintiff each addressed the § 3553 factors. (Def.’s Sent. Mem.,
Dkt. No. 806; Pl.’s Sent. Mem., Dkt. No. 809.) Also, the Court was adequately informed of
Defendant’s background, family history, and mental and emotional health through the PSR,
Sentencing Memorandum, and by personally addressing Defendant prior to sentencing.
Defendant has offered no argument related to the second Strickland prong and the Court
finds no Booker violation and thus, this claim must fail.
CONCLUSION
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For the reasons set forth herein, Defendant’s Motion under 28 U.S.C. § 2255 to
Vacate, Set Aside, or Correct Sentence (Dkt. No. 969), is DENIED. A separate judgment
shall issue.
IT IS SO ORDERED this 12th day of January, 2017.

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