BARA v. USA
MEMORANDUM OPINION as to BRANDY MARIE BARA indicating that, for reasons stated more fully within, Defendant's Motion to Vacate under 28 U.S.C. § 2255 is denied, with prejudice. The Court also holds that Defendant has failed to make a substantial showing of the denial of a Constitutional right and is not entitled to a certificate of appealability. An appropriate Order follows. Signed by Judge Nora Barry Fischer on 3/1/17. (jg)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
UNITED STATES OF AMERICA,
BRANDY MARIE BARA,
Criminal No. 14-178
Civil No. 16-1238
Judge Nora Barry Fischer
This matter is before the Court on a Motion to Vacate under 28 U.S.C. § 2255 (“Motion”)
filed by pro se Defendant Brandy Marie Bara (“Defendant”), (Docket No. 466), and Brief in
Support, (Docket No. 468), which is opposed by the Government, (Docket No. 476). After
careful consideration of the parties’ arguments, and for the following reasons, Defendant’s §
2255 Motion  is denied.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
A federal grand jury returned a Superseding Indictment against Defendant on October 7,
2014, charging her with: one count of conspiracy to possess with intent to distribute and
distribute a quantity of oxycodone from in and around the spring of 2011 until on or about July
10, 2014, in violation of 21 U.S.C. § 846 (Count One); one count of attempt to possess with
intent to distribute a quantity of oxycodone on May 27, 2014, in violation of 21 U.S.C. § 846
(Count Three); one count of possession with the intent to distribute and distribution of a quantity
of oxycodone on June 5, 2014, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C) and 18
U.S.C. § 2 (Count Four); one count of possession with the intent to distribute and distribution of
a quantity of oxycodone on June 30, 2014, in violation of 21 U.S.C. §§ 841(a)(1) and
841(b)(1)(C) (Count Five); and one count of possession with the intent to distribute a quantity of
oxycodone on July 10, 2014, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C) (Count
Seven). (Docket No. 147). At her request, Defendant was appointed counsel under the Criminal
Justice Act, i.e., Assistant Public Defender Linda E.J. Cohn, of the Office of the Federal Public
Defender for the Western District of Pennsylvania. (Docket Nos. 18, 19, 33, 77). Thereafter, the
parties advised the Court that they had reached a plea agreement resolving the matter short of
trial. (See Docket No. 252).
Defendant subsequently appeared before this Court for a change-of-plea proceeding on
April 14, 2015, and after conducting an extensive colloquy to confirm that Defendant was
competent, understood the Constitutional and other rights that she was waiving by entering a
guilty plea, and was knowingly and voluntarily pleading guilty, the Court accepted her guilty
plea to Count One. (See Docket Nos. 271, 272).1 During the proceeding, the Court was
presented with a fully executed Rule 11(c)(1)(C) plea agreement for a stipulated sentence of
eighty-four months’ incarceration signed by the parties, including Defendant and her counsel.
The Court addressed the terms of the plea agreement directly with Defendant, who assented,
under oath, that: she had discussed all relevant matters pertaining to the plea agreement with her
counsel; and, she was knowingly and voluntarily accepting the terms of the plea agreement and
the waivers contained therein, including waiving her right to appeal the judgment and sentence to
the Court of Appeals. She also confirmed that she was agreeing to the specific term of eighty-
Although the official transcript has not been docketed, the Court has reviewed the draft transcript from the
proceedings held on April 14, 2015, and will rely upon same in reaching its decision.
four months’ incarceration.
As part of the presentence process, Defendant objected to the Probation Office’s
conclusion that a two-level enhancement applied under Guideline § 2D1.1(b)(1) for her
possession of a firearm and to the factual summary of one of her prior convictions. (Docket No.
320). The Court overruled her objections to same for reasons set forth fully in its Tentative
Findings and Rulings of July 21, 2015. (Docket No. 333). With respect to Defendant’s first
objection, the Court, in applying the well-settled law of the Third Circuit, determined that
Guideline § 2D1.1(b)(1) was applicable based upon the totality of the circumstances present in
the case. (Id. at 4-5). Specifically, the Court found that the Government had met its initial
burden of production because there was a sufficient temporal and spatial relation between the
firearm and the drug trafficking to demonstrate by a preponderance of the evidence that the
enhancement should be applied. (Id. at 5-6). The Court rejected Defendant’s argument that she
lawfully possessed the firearm to protect her from a former abusive boyfriend against whom she
had obtained a Protection From Abuse Order, explaining that the Third Circuit has held that the
lawful acquisition and possession of a firearm does not preclude the application of the
enhancement. (Id. at 6). Because Defendant had failed to demonstrate that the drug-weapon
connection was “clearly improbable,” the Court overruled her objection. (Id. at 7). The Court
noted, however, that the enhancement would have no bearing on Defendant’s sentence if the
Court accepted their plea agreement for a specific sentence of eighty-four months’ incarceration.
(Id. at 4). The Court also overruled Defendant’s second objection, finding that the factual
disputes would have no impact on Defendant’s sentence because she was assessed 0 criminal
history points and remained in a criminal history category I. (Id. at 7-8). Based upon the
guidelines calculations, the Court determined that the advisory guideline range for imprisonment
was 108-135 months. (Id. at 10).
At the sentencing hearing on October 19, 2015, the Court accepted the parties’ Rule
11(c)(1)(C) plea agreement, and Defendant was sentenced to eighty-four months’ incarceration;
three years’ supervised release; and a $100.00 special assessment. (Docket No. 385). Defendant
did not appeal her sentence.
Defendant filed her pro se Motion and supporting Brief on August 16, 2016. (Docket
Nos. 466, 468). The Court issued an Order on August 16, 2016, advising Defendant of her right
to elect if the Court should resolve the pending motion or if she wished to file an all-inclusive §
2255 motion within thirty days. (Docket No. 469). After Defendant filed a response to the
Court’s Order, wherein she requested the right to amend her motion within 120 days, the Court
ordered Defendant to file any amendments to her motion by December 29, 2016. (Docket Nos.
470, 471). Because Defendant did not file any amendments to her motion, the Court ordered the
Government to file a response, which was filed on February 10, 2017. (Docket Nos. 472, 476).
Hence, this matter is now ripe for review.
III. STANDARD OF REVIEW
A prisoner in federal custody may move to vacate his or her sentence under 28 U.S.C. §
2255(a) if such “sentence was imposed in violation of the Constitution or laws of the United
States.” 28 U.S.C. § 2255(a). “A prisoner seeking relief on the grounds of ineffective assistance
of counsel bears the burden to demonstrate two requirements,” United States v. Seeley, 574 F.
App’x 75, 78 (3d Cir. 2014), which were initially set forth by the Supreme Court of the United
States in Strickland v. Washington, 466 U.S. 668 (1984). To prevail on a claim of ineffective
assistance of counsel under Strickland, a defendant “must establish that (1) the performance of
counsel fell below an objective standard of reasonableness; and, (2) counsel’s deficient
performance prejudiced the defense.” United States v. Otero, 502 F.3d 331, 334 (3d Cir. 2007)
(citing Strickland, 466 U.S. at 687-88); see also Roe v. Flores–Ortega, 528 U.S. 470, 476-477
(2000) (citing Strickland, 466 U.S. at 688, 694) (same). The United States Court of Appeals for
the Third Circuit has “endorsed the practical suggestion in Strickland [that the Court may]
consider the prejudice prong before examining the performance of counsel prong ‘because this
course of action is less burdensome to defense counsel.’” United States v. Lilly, 536 F.3d 190,
196 (3d Cir. 2008) (quoting United States v. Booth, 432 F.3d 542, 546 (3d Cir. 2005), which
quoted United States v. McCoy, 410 F.3d 124, 132 n.6 (3d Cir. 2005)); see also Strickland, 466
U.S. at 697 (“If it is easier to dispose of an ineffectiveness claim on the ground of lack of
sufficient prejudice, which we expect will often be so, that course should be followed.”).
Generally, a district court must order an evidentiary hearing in a federal habeas case if a
criminal defendant’s § 2255 allegations raise an issue of material fact.
United States v.
Biberfeld, 957 F.2d 98, 102 (3d Cir. 1992). But, if there is “no legally cognizable claim or the
factual matters raised by the motion may be susceptible of resolution through the district judge’s
review of the motion and records in the case,” the motion may be decided without a hearing.
United States v. Costanzo, 625 F.2d 465, 470 (3d Cir. 1980); see also Lilly, 536 F.3d at 195. If a
hearing is not held, the district judge must accept the criminal defendant’s allegations as true
“unless they are clearly frivolous on the basis of the existing record.” Gov’t of Virgin Islands v.
Bradshaw, 726 F.2d 115, 117 (3d Cir. 1984). Similarly, “‘vague and conclusory allegations
contained in a § 2255 petition may be disposed of without further investigation.’” United States
v. Knight, Nos. 03-CV-416, 98-CR-3, 2009 WL 275596, at *13 (W.D. Pa. Feb. 4, 2009) (quoting
United States v. Thomas, 221 F.3d 430, 437 (3d Cir. 2000)).
Defendant argues that her § 2255 Motion should be granted because her counsel was
ineffective. (Docket Nos. 466, 468). She also asserts that her sentence is disproportionate to her
husband’s sentence and that her sentence should be reduced for her minor role and post-sentence
rehabilitation. (Id.). The Government opposes both arguments. (Docket No. 476). The Court
will separately address the parties’ positions as to each issue.
A. Ineffectiveness of Counsel
Defendant argues that her counsel was ineffective for agreeing to a stipulated sentence
without discussing it with her and for failing to disclose to the Court the reason why she
possessed a firearm. (Docket No. 468 at 3-4). In this Court’s estimation, both claims are
conclusively refuted by the record before the Court.
With respect to Defendant’s first argument, there was no binding agreement with the
Government to the stipulated sentence of eighty-four months’ incarceration until Defendant and
her counsel signed the plea agreement at the change-of-plea hearing held before the Court on
April 14, 2015. (Docket Nos. 271, 272). At the outset of the hearing, the Court established that
Defendant was competent to participate in the proceedings. (See Docket No. 271). Defendant
earned a GED and had completed some coursework in a pharmacy technician program.
Defendant averred that she was not under the influence of drugs or alcohol and that her
medications did not impact her ability to understand the proceedings. Defense counsel asserted
that her client was competent to participate meaningfully in the hearing. The Court observed
Defendant’s demeanor and responses during the colloquy and concluded that she understood the
Based on the foregoing, the Court found that Defendant was competent to
meaningfully participate and to enter a guilty plea if she chose to do so. (See id.).
After ensuring that Defendant was competent to plead, the Court queried Defendant to
determine whether she had discussed her case with her attorney and whether she was satisfied
with the representation provided by counsel.
Defendant answered each question in the
The Court proceeded to advise Defendant of the constitutional rights and
protections that she would be giving up by pleading guilty, as well as the statutory penalties
associated with the charges against her. Defendant indicated that she understood each of those
rights and still wished to plead guilty. The Court discussed the plea agreement with Defendant,
and Defendant confirmed that she had read the agreement, reviewed her questions with defense
counsel, and had no questions for the Court about the agreement.
In response to the Court’s request, counsel for the Government summarized the terms of
the agreement on the record, including the parties’ stipulations as to the advisory guidelines
range. Among other important terms, Government counsel specifically stated that the parties
stipulated and agreed that the appropriate sentence in this case is a term of imprisonment of
seven years. After Defendant confirmed on the record that she consented to each of the terms
contained in the agreement, the Court reviewed the details of the plea agreement with her.
Defendant stated that she understood and agreed to each of the terms set forth in the plea
agreement and was satisfied with the agreement that she had reached with the Government.
Defendant advised that she understood that if she went to trial, it was the Government’s burden
to prove all of the elements of the offense beyond a reasonable doubt, and she later agreed with
the prosecution’s summary of the evidence against her. Defendant acknowledged that she was
waiving her trial rights by pleading guilty. Defendant also told the Court that her guilty plea was
the product of her own volition and denied that she had been threatened or forced to plead guilty,
or that anyone had made her any promises as to what her actual sentences would be, outside of
the plea agreement. Defendant affirmed that she was satisfied in all respects with the advice and
representation of her attorney. See United States v. Slane, Nos. 11-CR-81, 14-CV-938, 2015
U.S. Dist. LEXIS 19867, at *80 (W.D. Pa. Feb. 19, 2015) (“[N]o one has the right to take the
sworn oath to tell the truth and then testify falsely.”).
In this Court’s opinion, the record before the Court, including the fully executed written
plea letter and Defendant’s assertions under oath at the change-of-plea hearing, conclusively
establish that she discussed the stipulated sentence with her counsel and agreed to same. Thus,
the Court cannot conclude that Defendant’s counsel was ineffective for failing to discuss the
stipulated sentence with her. See, e.g., United States v. Blessitt, Nos. 15-CR-118, 16-CV-1574,
2016 U.S. Dist. LEXIS 161662, at *13 (W.D. Pa. Nov. 22, 2016) (rejecting the defendant’s
argument that his counsel was ineffective because he “entered a voluntary plea of guilty after
having time to consider the plea and consult with his attorney”).
With respect to Defendant’s second argument that her counsel was ineffective for failing
to disclose the reason why she possessed a firearm, the Court initially notes that Defendant’s
counsel twice advised the Court of Defendant’s position that the firearm enhancement was
inapplicable. More significantly, and as discussed above, Defendant objected to the Probation
Office’s conclusion that a two-level enhancement applied under Guideline § 2D1.1(b)(1) for her
possession of a firearm during the presentence process. (Docket No. 320). In overruling
Defendant’s objection, the Court explained that the Third Circuit has held that the lawful
acquisition and possession of a firearm does not preclude the application of the enhancement.
(Docket No. 333 at 6). The Court further noted that the parties had agreed that the enhancement
would have no bearing on Defendant’s sentence if the Court accepted their plea agreement for a
specific sentence of eighty-four months’ incarceration. (Id. at 4). The Court accepted the
parties’ plea agreement and sentenced Defendant to eighty-four months’ incarceration. (Docket
Nos. 384, 385).2 Because the firearm enhancement did not impact her sentencing, the Court
must reject Defendant’s argument that her counsel was ineffective.
B. Proportionality of Sentence
Defendant argues that her sentence should be reduced because her husband, Telano
Lanard White, received a sentence reduction from twelve years to ten years. (Docket No. 468 at
4). She requests that her sentence be reduced from eighty-four months to sixty-nine months.
(Id.). Defendant also contends that her sentence should be reduced for her minor role and postsentence rehabilitation. (Id. at 4-5).
As discussed in detail above, Defendant knowingly and voluntarily entered her guilty
plea and agreed to the stipulated sentence that was below the advisory guideline range.
Defendant’s husband’s sentence is not relevant. Moreover, as the Government has pointed out,
Defendant was higher in the chain of oxycodone distribution than three other distributors. (See
Docket No. 476 at 5-6). Indeed, at the change-of-plea proceedings, Defendant agreed with the
Government’s factual narrative of this case, wherein it stated that Defendant was the primary
As noted above, the Court determined that, with a final offense level of 31, the advisory guideline range for
Defendant’s imprisonment was 108-135 months. (Docket No. 333 at 9-10). If the firearm enhancement had not
been applied, then Defendant’s final offense level would have been 29, which has a guideline range of 87-108
months of imprisonment. Thus, even if the firearm enhancement had not been applied, the stipulated sentence of 84
months fell below the guideline range.
distributor of oxycodone transported from Detroit to Pittsburgh. Thus, as the Government has
argued, it had grounds to seek a three-level enhancement for Defendant’s role in the chain of
oxycodone distribution. (See Docket No. 476 at 5-6). The Government’s agreement not to seek
a role enhancement was a significant benefit to Defendant, and her seven-year sentence is
appropriately between the ten-year sentence imposed upon her husband and the six-year sentence
given to Corey Rodriguez. Accordingly, the Court finds meritless Defendant’s argument that her
sentence should be reduced because it is disproportionate to her husband’s sentence. See, e.g.,
United States v. Parker, 462 F.3d 273, 276 (3d Cir. 2006) (“[A] criminal defendant has no
constitutional right to be given a sentence equal in duration to that of his or her co-defendants.”)
(internal quotations omitted); United States v. Slane, Nos. 11-CR-81, 14-CV-938, 2015 U.S.
Dist. LEXIS 19867, at *82 (W.D. Pa. Feb. 19, 2015) (“To the extent that Defendant continues to
advocate that her sentence is unfair in relation to the sentences imposed on her codefendants,
Shaheen and Kamaras, as the Court stated at sentencing, Defendant is not similarly situated to
those individuals as they both pled guilty, accepted responsibility for their crimes and did not
commit perjury at trial.”).
The Court must also reject Defendant’s argument that her sentence should be reduced for
her minor role and for her post-sentence rehabilitation. As stated, Defendant’s role was not
minor, and she is not entitled to a reduction in her sentence. See, e.g., United States v. Martinez,
No. 2:15-CR-25, 2017 U.S. Dist. LEXIS 22015, at *10-11 (W.D. Ark. Jan. 23, 2017) (explaining
that the defendant could not raise an argument for a minor-role adjustment in a § 2255 motion
because “[r]elief under § 2255 is reserved for transgressions of constitutional rights and for a
narrow range of injuries that could not have been raised on direct appeal and, if uncorrected,
would result in a complete miscarriage of justice”) (internal quotations omitted). Similarly, postsentence rehabilitation is not a basis for a § 2255 motion. See, e.g., In re Lewis, 360 F. App’x
161, 161 (D.C. Cir. 2009) (explaining that a sentence reduction based upon post-conviction
rehabilitation is not cognizable under § 2255) (citing United States v. Addonizio, 442 U.S. 178,
186-87 (1979)). Accordingly, the Court finds that Defendant’s Motion must be denied.
Based on the foregoing, Defendant’s Motion to Vacate under 28 U.S.C. § 2255 is denied,
with prejudice. The Court also holds that Defendant has failed to make a substantial showing of
the denial of a Constitutional right and is not entitled to a certificate of appealability. An
appropriate Order follows.
s/ Nora Barry Fischer
Nora Barry Fischer
United States District Judge
Date: March 1, 2017
cc/ecf: All counsel of record
Brandy Marie Bara
A2 Federal Prison Camp
P.O. Box A
Alderson, WV 24910
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