LIVSEY v. USA

Filing 15

MEMORANDUM OPINION AND ORDER denying #1 Motion to Vacate/Set Aside/Correct Sentence (2255) filed by KEVIN LIVSEY. Signed by Judge D. Michael Fisher on 2/6/2024. (kll)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
KEVIN LIVSEY,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

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Criminal No. 18-143
Civil No. 24-84
Judge D. Michael Fisher

MEMORANDUM OPINION AND ORDER
Presently pending before the Court is the Motion to Vacate, Set Aside, or Correct
Sentence filed by Petitioner Kevin Livsey on May 29, 2023. ECF No. 104. The issues
raised in the Motion and its associated briefing are ripe for resolution without the need
for an evidentiary hearing. 1 For the reasons set forth below, the Motion is DENIED.
I.

BACKGROUND
A.

Factual History

This case begins in 2016, when Petitioner was convicted in the Western District of
Pennsylvania on two counts of possessing with the intent to distribute—and actually
distributing—heroin, in violation of 21 U.S.C. § 841(a)(1). ECF No. 24 at 3. Petitioner
was sentenced to twelve months and one day of imprisonment and three years of

The Court will not hold an evidentiary hearing on a motion filed pursuant to 28 U.S.C.
§ 2255 if 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. As detailed in this Memorandum
Opinion and Order, the record resolves all facts relevant to Petitioner’s Motion to Vacate
and establishes that he is entitled to no relief.

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supervised release. United States v. Livsey, No. 2:15-cr-00087-NBF-26, ECF No. 3012, at
3. But following his release, he sold more than 150 “stamp bags” of a controlled
substance containing fentanyl and heroin to a confidential informant (“CI”) in a
controlled purchase at two addresses in the Beltzhoover neighborhood of Pittsburgh,
Pennsylvania. ECF No. 98 at 31.
In May 2018, federal agents executed search warrants at Petitioner’s apartment
and at the Beltzhoover addresses. Id. at 31–32. Agents found thousands of dollars in cash
in his apartment, as well as a document linking Petitioner with a phone number that he
used to sell controlled substances. Id. at 32. At the Beltzhoover addresses, agents found
three firearms and various quantities of fentanyl, carfentanil, and heroin. 2 Id. at 31–32.
B.

Procedural History

On June 5, 2018, Petitioner was charged in a three-count Indictment with
(1) possession with the intent to distribute fentanyl, carfentanil, and heroin in violation of
21 U.S.C. § 841(a)(1) and 841(b)(1)(C), (2) possession of a firearm in furtherance of a
drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A)(i), and (3) possession of a
firearm by a felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). ECF No. 1.
On November 19, 2018, Petitioner pleaded guilty pursuant to a plea agreement in

Two months later, the Government filed a Superseding Indictment charging Petitioner
with possession with the intent to distribute fentanyl, carfentanil, and heroin in violation
of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C) on an earlier date. ECF No. 24 at 4. In
November 2018, the Government filed an information pursuant to 21 U.S.C. § 851 to
establish the existence of several prior convictions for state and federal controlled
substance offenses. ECF No. 40.

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which the Government agreed to dismiss his felon-in-possession charge. 3 ECF No. 42. In
May 2019, the Court sentenced Petitioner to a term of 230 months’ imprisonment, to be
followed by six years of supervised release. See ECF No. 68.
Petitioner claims he asked his attorney to file a notice of appeal following his
sentencing, but no appeal was docketed. See ECF Nos. 76, 77. On collateral attack, this
Court found that counsel was ineffective in failing to file an appeal and permitted
Petitioner to file a direct appeal. ECF No. 89. He did so. ECF No. 92. The Third Circuit
concluded that his direct appeal “lack[ed] any basis in law or fact.” ECF No. 102-2 at 5
(internal quotation marks omitted). Even so, it noted that its “decision to dismiss
[Petitioner’s direct] appeal is without prejudice to his right to raise [an ineffective
assistance of counsel] claim on a collateral attack.” Id. at 3–4 n.2. It is through that open
door that Petitioner proceeds with this Motion. 4
II.

LEGAL STANDARDS
A federal prisoner may move a sentencing court to vacate, set aside, or correct his

sentence under 28 U.S.C. § 2255. Courts may afford relief under § 2255 on several
grounds, including “that the sentence was imposed in violation of the Constitution or

At his change-of-plea hearing, Petitioner admitted that he had read the plea agreement,
that he understood it, and that he still wished to plead guilty to Counts I, II, and IV of the
Superseding Indictment. ECF No. 98 at 31–34. He also admitted to committing the
underlying criminal acts: that he had been storing the three pistols—together with the
fentanyl, carfentanil, and heroin—at the Beltzhoover addresses, and that he intended to
distribute the controlled substances. ECF No. 42 at 31–33.

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Specifically, Petitioner’s claims related to his career offender enhancement and
amendments to the United States Sentencing Guidelines’ “status points” provisions do
not relate to the ineffective assistance of counsel.

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laws of the United States.” 28 U.S.C. § 2255(a). The court accepts the truth of the
defendant’s allegations when reviewing a § 2255 motion unless those allegations are
“clearly frivolous on the basis of the existing record.” United States v. Booth, 432 F.3d
542, 545 (3d Cir. 2005).
The Sixth Amendment guarantees the right of every criminal defendant to
effective assistance of counsel. A collateral attack based on ineffective assistance of
counsel is governed by the two-pronged test set forth in Strickland v. Washington, 466
U.S. 668 (1984). To prevail on such a claim, a defendant must show that (1) counsel’s
representation fell below an objective level of reasonableness based on prevailing
professional norms, and (2) the deficient representation was prejudicial. Id. at 687–88.
The defendant bears the burden of proving both prongs. Id. at 687. With these legal
standards in mind, the Court turns to a consideration of Petitioner’s Motion.
III.

DISCUSSION
Petitioner contends that he has been “denied his right to effective assistance of

counsel under the Sixth and Fourteenth Amendments to the United States Constitution.”
ECF No. 104 at 3. He makes five arguments; none have merit.
A.

Failure to Move to Withdraw Guilty Plea

First, Petitioner claims his attorney failed to move to withdraw his guilty plea after
he requested that counsel do so. Id. This argument fails, whether Petitioner actually
requested to withdraw his guilty plea or not. 5 “There can be no Sixth Amendment

This is the first time Petitioner has claimed that he asked his attorney to withdraw his
guilty plea. He did not mention it: (1) at his change-of-plea hearing; (2) at his sentencing;

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deprivation of effective counsel based on an attorney’s failure to raise a meritless
argument,” United States v. Sanders, 165 F.3d 248, 253 (3d Cir. 1999), and the same is
true of an attorney’s failure to move to withdraw a guilty plea if doing so would be
meritless. See Blair v. Gilmore, 2022 WL 3586658, at *14 n.7 (W.D. Pa. Aug. 22, 2022).
Indeed, a defendant may withdraw his guilty plea after the Court has accepted it
only if “the defendant can show a fair and just reason for requesting the withdrawal.”
Fed. R. Crim. P. 11(d)(2)(B). The fair-and-just-reason inquiry focuses on a tripartite test
set out in United States v. Jones, 336 F.3d 245, 252 (3d Cir. 2003):
(1) Whether Petitioner Asserts His Innocence. Here, Petitioner makes a vague
gesture at a claim of innocence without any explanation or evidence contradicting his
sworn testimony during his change-of-plea hearing, at which he unambiguously
disclaimed his innocence. ECF No. 104 (referencing only “Petitioner’s claim of
innocence” with no further elaboration); ECF No. 98 at 31–33 (Petitioner agreeing with
the factual truth of the Government’s summary of criminal conduct). Petitioner’s passing
claim of innocence is exactly the sort of “[b]ald assertion[] of innocence” that is
“insufficient to permit a defendant to withdraw his guilty plea.” Jones, 336 F.3d at 252.
(2) Strength of Petitioner’s Reasons for Withdrawing His Plea. Turning to the
second Jones factor, Petitioner presents no strong justification for seeking to withdraw

(3) in his first § 2255 motion; or (3) in his direct appeal. He provides no explanation—let
alone evidence—that explains why he waited years to bring this argument to the Court’s
attention, or otherwise establish that he ever raised his desire to withdraw his guilty plea
with his attorney. The Court is thus skeptical that any such request was ever made.
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his guilty plea. He does claim that he was prejudiced by the “late” filing of the
Government’s § 851 information, but this is baseless. 6 The same holds true for
Petitioner’s status as a career offender, which he presents as another justification for
withdrawal. 7 Given these weak reasons for withdrawal, the Court need probe no further.
(3) Whether the Government Would be Prejudiced by the Withdrawal. This
question answers itself. As part of the plea, the Government agreed to dismiss one count
in exchange for a guilty plea and waiver of certain appellate rights. Permitting withdrawal
of Petitioner’s plea would prejudice the Government in that it would require it to expend
resources at trial, after having already expended time and effort reaching an agreement
with Petitioner and conducting a change-of-plea hearing at which Petitioner admitted
under oath to the criminal conduct with which he was charged.
As each Jones factors weighs against Petitioner, it follows that Petitioner’s his first
claims of ineffectiveness warrants no relief under Strickland’s first prong.
B.

Decision to Plead Guilty to Possession of a Firearm in Furtherance of a
Drug Trafficking Crime

Second, Petitioner claims counsel was ineffective for advising him to plead guilty

The statute does not contain a deadline—it simply requires that the Government file the
information “before entry of a plea of guilty.” 21 U.S.C. § 851(a)(1). The Government
complied with that deadline here.
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As with the § 851 information, the plea agreement expressly provided that “[t]he parties
further stipulate that U.S.S.G. § 4B1.1 should be applied to the calculation of
[Petitioner’s] guideline range because his prior convictions qualify him as a career
offender under that section of the Guidelines.” ECF No. 41-1 at 4. Petitioner was aware
of his career offender status, and knowingly and voluntarily signed a plea agreement
confirming as much.

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to Count II of the Superseding Indictment—that is, his 18 U.S.C. § 924(c)(1)(A) charge
for possession of a firearm in furtherance of a drug trafficking crime. ECF No. 104 at 4.
This claim is meritless.
As the disjunctive text of 18 § U.S.C. § 924(c)(1)(A)(i) suggests, there are two
ways of violating the statute: by “us[ing] or carr[ying] a firearm” or by “possess[ing] a
firearm” “in furtherance of” a “drug trafficking crime.” 18 U.S.C. § 924(c)(1)(A). The
Government acknowledges that it has not sought to prove that Petitioner actively used the
firearms discovered at the Beltzhoover addresses in furtherance of a drug trafficking
crime. ECF No. 106 at 17. But it had no difficulty in demonstrating that he possessed the
firearms in furtherance of a drug trafficking offense, which is all it was required to do.
True, the “mere presence” of a firearm is not enough to constitute a violation of
§ 924(c)(1)(A)(i). United States v. Sparrow, 371 F.3d 851, 853 (3d Cir. 2004). But, time
and again, courts have found that the discovery of firearms close to drugs is enough to
demonstrate that they were used “in furtherance of” a drug trafficking crime. See, e.g.,
United States v. Garner, 338 F.3d 78, 80–81 (1st Cir. 2003) (affirming conviction when
firearms and drugs were found in a hole in the wall of a building’s common basement and
the defendant was selling drugs out of an apartment in the building). Here, each of the
three firearms was found in the immediate proximity of wholesale and retail quantities of
illegal drugs. Petitioner therefore cannot establish that his attorney’s performance was
objectively unreasonable under Strickland’s first prong when counsel advised him to
plead guilty to Count II.

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C.

Failure to Introduce Character Evidence at Sentencing

Third, Petitioner contends that his attorney was ineffective in failing to introduce a
set of character letters provided by family members and friends at sentencing. ECF No.
104 at 4. To begin, the Court is doubtful that Petitioner provided these letters to his
attorney before sentencing. Not one letter is actually dated in 2019, or at any other point
before Petitioner’s sentencing. 8
As a result, the Court is left to liberally construe Plaintiff as arguing that he meant
to have his family members and friends present similar mitigating evidence to the Court
prior to his sentencing, and that his counsel was ineffective in soliciting their opinions.
But counsel did not have to seek out letters of support from Petitioner’s colleagues or
family members. See Burger v. Kemp, 483 U.S. 776, 794 (1987) (holding that while
habeas counsel could have conducted a more thorough investigation, “in considering
claims of ineffective assistance of counsel, we address not what is prudent or appropriate,
but only what is constitutionally compelled”) (internal quotation marks and alterations
omitted). Counsel’s performance overcomes that threshold here.
D.

Career Offender Status

Fourth, Petitioner argues that “[a]t a minimum, this Court should grant resentencing in that Petitioner no longer qualifies as a career offender as neither of his two
prior offenses . . . are predicate offenses under the career offender guidelines.” ECF No.

Three of the letters indicate they were drafted at the end of April 2020—well after
Petitioner’s May 2019 sentencing. See ECF No. 104 at 9, 11–12. Others contextually
suggest that they were written well after sentencing. Id. at 13 (referencing the COVID-19
pandemic).

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104 at 4. Whether true or not, “an incorrect career-offender enhancement under the
advisory guidelines is not cognizable under § 2255.” United States v. Folk, 954 F.3d 597,
604 (3d Cir. 2020). That is because “[e]ven when based on an incorrect advisory careeroffender enhancement, a sentence within the statutory maximum is lawful.” Id. “And a
lawful sentence is not a complete miscarriage of justice.” Id. Petitioner’s challenge to his
career offender status is thus foreclosed.
E.

“Status Point” Amendment 9

Fifth and finally, Petitioner points to Amendment 821 to the 2023 version of the
United States Sentencing Guidelines as grounds for relief. 10 ECF No. 115 at 5.
Amendment 821 is retroactive and “the court may reduce the defendant’s term of
imprisonment as provided by 18 U.S.C. § 3582(c)(2).” U.S.S.G. § 1B1.10. But Petitioner
has not filed a motion for a reduced sentence under § 3582(c)(2). The Court is cognizant
of the Third Circuit’s oft-repeated “preference that cases be disposed of on the merits
whenever practicable.” Hritz v. Woma Corp., 732 F.2d 1178, 1181 (3d Cir. 2004). Even
so, a motion under § 3582(c)(2) cannot be bootstrapped to a § 2255 motion, and so
Petitioner’s argument fails.

Petitioner raised this issue for the first time in his reply in support of his § 2255 motion.
Normally, arguments not raised in a party’s opening brief are forfeited. Waldor v. Saul,
2020 WL 2557340, at *2 (W.D. Pa. May 20, 2020). That said, Amendment 821 did not
become operative until November 1, 2023—more than five months after the filing of his
initial Motion. Because Amendment 821 is made retroactive by section 1B1.10 of the
Guidelines, the Court does not consider Petitioner’s argument forfeited.
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Amendment 821 reduced the so-called “status points” enhancement for offenses
committed while on supervised release from two points to one point. See U.S.S.G.
§ 4A1.1(e) (effective Nov. 1, 2023).
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IV.

CONCLUSION
AND NOW, this 6th day of February, 2024, in accordance with the foregoing

Memorandum Opinion,
IT IS HEREBY ORDERED that Petitioner’s Motion to Vacate, Set Aside or Correct
Sentence, ECF No. 104, is DENIED;
IT IS FURTHER ORDERED that no certificate of appealability shall issue; 11 and,
FINALLY, an appropriate Judgment follows at Civ. No. 24-84.
IT IS SO ORDERED.
BY THE COURT:
s/ D. Michael Fisher
United States Circuit Judge
Date: February 6, 2024
cc/ecf: All counsel of record
Kevin Livsey
USMS 35691-068
Elkton Federal Correctional Institution
Inmate Mail/Parcels
PO Box 10
Lisbon, OH 44432

The Court will issue a certificate of appealability only upon a “substantial showing of
the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); see also Slack v. McDaniel,
529 U.S. 473, 484 (2000). Here, the record fails to show a violation of Petitioner’s
constitutional rights and jurists of reason would not find that conclusion debatable.
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