TUMER v. USA

Filing 5

MEMORANDUM ORDER denying 1 Motion to Vacate/Set Aside/Correct Sentence (2255) filed by JEFFREY TUMER. Signed by Judge J. Nicholas Ranjan on 7/24/2024. (pak)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
UNITED STATES OF AMERICA,
v.
JAMES VANCE,
Defendant.

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2:24-cv-11

MEMORANDUM ORDER
Defendant James Vance was sentenced to a statutory mandatory minimum
term of imprisonment of 120 months after he pled guilty via plea agreement to
violating 21 U.S.C. § 846, conspiracy to distribute five or more kilograms of cocaine.
ECF 519; ECF 626. Mr. Vance now moves pro se to vacate that sentence and requests
resentencing on grounds that his counsel failed to object to the inclusion of criminal
history points for two state-law convictions for simple possession of marijuana in his
Presentence Investigation Report, even though those convictions were expunged.
ECF 1412; ECF 1413, p. 5. This failure amounted to ineffective assistance of counsel,
he argues, because it meant that his criminal history category was higher than it
otherwise would have been, such that the Court “relied upon [an] erroneous guideline
range” at sentencing. ECF 1413, p. 5. Had counsel objected and the points been
removed, his Sentencing Guidelines range would have been 100 to 125 months of
imprisonment.

Id.

The government opposes Mr. Vance’s motion because it is

untimely, and Mr. Vance has not shown due diligence or the existence of a newly
discovered fact to excuse his untimeliness. ECF 1422. The Court denies the motion,
for two reasons.

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First, for the reasons articulated by the government in its response brief (ECF
1422), the Court finds that Mr. Vance’s motion is untimely, and he has not
demonstrated sufficient grounds to toll the statute of limitations.
Second, even if the motion were timely, it still fails because Mr. Vance cannot
demonstrate prejudice from any alleged error by counsel. Strickland v. Washington,
466 U.S. 668, 687 (1984).

This is so because Mr. Vance’s criminal history was

irrelevant to the sentence; the Court was required to sentence Mr. Vance to a
minimum of 120 months of imprisonment in this case. The Court stated as much at
Mr. Vance’s sentencing hearing. ECF 639, 11:8-9. Indeed, the Guidelines make clear
that “[w]here a statutorily required minimum sentence is greater than the maximum
of the applicable guideline range, the statutorily required minimum sentence shall
be the guideline sentence.” U.S.S.G. § 5G1.1(b). So even if the criminal history points
had not been counted, the lowest bound of Mr. Vance’s guidelines range would have
been exactly the same: 120 months of imprisonment.
Accordingly, Mr. Vance did not suffer prejudice from counsel’s failure to object
to the PSR’s criminal history score, and his claim for ineffective assistance is without
merit. For the same reason, the Court denies Mr. Vance’s motion for appointment of
counsel (ECF 1423), and finds that no certificate of appealability will issue.
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AND NOW, this 24th day of July, 2024, upon consideration of Defendant
James Vance’s Section 2255 motion to vacate his sentence (ECF 1412) and related
motion for appointment of counsel (ECF 1423), it is hereby ORDERED that, for the
foregoing reasons, Defendant’s motions are DENIED.
BY THE COURT:
/s/ J. Nicholas Ranjan
United States District Judge
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