His Law v. USA
Filing
7
OPINION AND ORDER DENYING 1 MOTION to Vacate, Set Aside or Correct Sentence pursuant to 28:2255 filed by Charles His Law. Signed by U.S. District Judge Roberto A. Lange on 4/28/14. (SKK) (Main Document 7 replaced on 4/28/2014) (SKK).
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
CENTRAL DIVISION
CHARLES HIS LAW,
Petitioner,
8
CIV 13-3016-RAL
*
vs.
OPINION AND ORDER
*
UNITED STATES OF AMERICA,
*
DENYING MOTION UNDER
28 U.S.C. § 2255
*
Respondent.
*
Charles His Law is serving a 96-month sentence after having pleaded guilty to a reduced
charge of assault resulting in serious bodily injury under a plea agreement. United States v. His
Law, 11-CR-30154-RAL, Doc. 1, Doc. 26, Doc. 47.' His Law now has filed a motion under 28
U.S.C. § 2255 to vacate, set aside, or correct sentence by a person in federal custody. His Law
v. United States, 13-CV-3016-RAL, Doc. I.2 In his § 2255 motion, His Law asserts the
following grounds: 1) the Government allegedly breached the plea agreement by not
recommending a "within guideline sentence;" 2) His Law's court-appointed counsel allegedly
was ineffective at the sentencing hearing and in an appeal;3 and 3) this Court allegedly erred in
how it sentenced His Law. His Law filed a lengthy memorandum in connection with his § 2255
motion making clear that he is challenging the Government's urging of the sentence at the top
'Citations to pleadings from His Law's criminal case hereafter will be "CR Doc." followed
by the document number from the Case Management/Electronic Case Filing (CM/ECF) system.
2Citations to pleadings from this present case, 13-CV-3O16-RAL, in which this Opinion and
Order is being entered will be "CIV Doc." followed by the CM/ECF document number.
3In Ground Two, His Law refers generally to "pre-plea stages" as well, but his arguments
plainly relate to alleged ineffective assistance of counsel in connection with the sentencing and
appeal. CIV Doc. 1; CIV Doc. 2; CIV Doc. 5.
end of the guideline range at the sentencing hearing, his counsel's preparation for and
performance at the sentencing hearing and on appeal, and this Court's rulings during the
sentencing hearing. CIV Doc. 2. For the reasons explained herein, this Court denies His Law's
§ 2255 motion.
I.
Facts from Underlying Criminal Case
A.
Procedural History, Plea Agreement, and Guilty Plea
On December 14, 2011, His Law was indicted on four counts. CR Doc. 1. Count I of
the Indictment alleged that His Law on November 3,2011, unlawfully assaulted Evon Ortiz with
a dangerous weapon, that being shod feet, with the intent to do bodily harm to Evon Ortiz, and
that federal jurisdiction existed in that His Law is an Indian and the offense occurred in Indian
country. CR Doc. 1. Count II of the Indictment alleged that His Law, on November 15, 2011,
used the threat of physical force against Evon Ortiz to compel her to call law enforcement and
give false information about the assault investigation, thereby tampering with a victim. CR Doc.
1. Count III ofthe Indictment alleged that, between November 12,2011 and December 7,2011,
His Law threatened to kill Evon Ortiz for having cooperated in the assault investigation by
federal officials, thereby committing the crime ofretaliating against a victim. CRDoc. 1. Count
IV of the Indictment alleged that between November 12,2011 and December 7,2011, His Law
had taken Evon Ortiz, his intimate and dating partner, outside of Indian country by force and had
assaulted her thereby committing the crime ofinterstate domestic violence. CRDoc. 1. His Law
was arraigned on December 15, 2011, and was appointed David W. Siebrasse as his counsel
under the Criminal Justice Act. CR Doc. 6.
His Law and Siebrasse reached a Plea Agreement with the Government, which was filed
on April 12,2012. CR Doc. 26. The terms ofthe Plea Agreement contained concessions by the
Government favorable to His Law. Under the Plea Agreement, His Law agreed to waive
Indictment and plead guilty to an Information charging one count of assault resulting in serious
bodily injury. CR Doc. 26 at | C. In exchange for that guilty plea, the Government would
dismiss the charges in the Indictment thereby greatly reducing the maximum penalty His Law
was facing if convicted on all counts of the Indictment. CR Doc. 26 at ]ffl B, C. Under the Plea
Agreement, Siebrasse secured for His Law's benefit a commitment from the Government to
agree, based on the information known to it at the time, that His Law was entitled to a reduction
for acceptance of responsibility in his offense level. CR Doc. 26 at Tflf E, F. The Government
also agreed in the Plea Agreement that "it will recommend that the Court impose a sentence of
imprisonment within the applicable Guideline range." CR Doc. 26 at | G. As a part of the Plea
Agreement, His Law waived all defenses and any right to appeal any non-jurisdictional issues.
CR Doc. 26 at If Q. That waiver excluded His Law's "right to appeal any decision by the Court
to depart upward pursuant to the sentencing guidelines as well as the length of his sentence for
a determination of its substantive reasonableness should the Court impose an upward departure
or upward variance pursuant to 18 U.S.C. § 3553(a)." CR Doc. 26 at f Q.
As a part of the Plea Agreement, His Law signed a Factual Basis Statement. CR Doc.
28; CR Doc. 57. In the Factual Basis Statement, His Law acknowledged the following facts to
be true:
On or about the 3rd day of November, 2011, at Fort
Thompson, in Indian country, in the District of South Dakota,
Charles His Law, an Indian, did unlawfully assault Evon Ortiz,
and said assault resulted in serious bodily injury, in violation of
18U.S.C. §§1153 and 113(a)(6).
During October and early November 2011, the Defendant,
Charles His Law, and the victim ofthis offense, Evon Ortiz, were
in a dating and intimate relationship. They were cohabitating
together at 88 Jones Drive in Fort Thompson, South Dakota, on
the Crow Creek Sioux Indian Reservation. During the early
morning hours ofNovember 3,2011, the Defendant became upset
with the victim and grabbed her by the hair and dragged her into
the southwest bedroom of the home. Once inside the bedroom,
the Defendant began to assault the victim by punching her with a
closed fist to the face and upper body area multiple times. The
force of these blows knocked the victim to the floor inside the
closet of the bedroom. Once the victim was on the floor inside
the closet, the Defendant continued to strike her on her head and
body with a closed fist. The victim was eventually able to get
away, ran to a neighbor for help, and law enforcement was
summoned.
The victim received medical treatment in Chamberlain,
South Dakota. Medical records reveal the victim suffered two
black eyes, a right nasal bone fracture, probably left nasal bone
fracture, buckling of the mid nasal septum related to fracture,
bilateral facial, periorbial nasal and. frontal soft tissue swelling
and multiple bruises to her face and body. The parties stipulate
and agree the victim suffered serious bodily injury as a result of
this assault.
A federal search warrant was executed on the home at 88
Jones Drive, Fort Thompson, South Dakota. During the search,
a red blood-like substance was observed in the southwest
bedroom and closet. Samples were taken and submitted to the
South Dakota Forensic Lab. Lab results indicate that the red
blood-like substance was human blood and the DNA profile
extracted from the blood matches that of a known sample of the
victim, Evon Ortiz.
That His Law's date of birth is April 21, 1983, and the
Defendant was 28 years of age at the time of the offense.
That the Defendant is an "Indian" under the provisions of
18 U.S.C. § 1153 in that he is an enrolled member ofthe Rosebud
Sioux Tribe, enrollment number RSU-26246, and is 15/32 degree
Indian by blood, and that the offense occurred in Ft. Thompson,
in Buffalo County, South Dakota, in Indian country, which is
within the exterior boundaries of the Crow Creek Indian
Reservation. This location is "Indian country" within the
provisions of 18 U.S.C. §§ 1151 and 1153.
CR Doc. 28.
His Law appeared before this Court on April 17,2012, at a change ofplea hearing. Doc.
57. His Law was placed under oath and acknowledged his understanding that he had to answer
questions truthfully. CR Doc. 57 at 2-3. Toward the beginning of the change of plea hearing,
this Court had the following dialogue with His Law:
THE COURT:
Have you had an ample opportunity to talk
with your attorney Mr. Siebrasse about
your case and about what you should do
here today?
THE DEFENDANT [His Law]:
THE COURT:
Yeah.
Are you fully satisfied with the counsel,
advice, and representation provided to you
by Mr. Siebrasse?
THE DEFENDANT [His Law]:
Yeah.
CR Doc. 57 at 4. The change of plea colloquy demonstrated that His Law was competent and
was voluntarily and knowingly changing his plea with an understanding of his rights. CR Doc.
57. Among other things, His Law acknowledged signing the Factual Basis Statement, carefully
reading and understanding the Factual Basis Statement, and going over the Factual Basis
Statement with his attorney before signing it. CR Doc. 57 at 14. His Law acknowledged the
accuracy of that statement as follows:
THE COURT:
Is the factual basis statement accurate in
what it sets forth?
THE DEFENDANT [His Law]:
Yeah.
CR Doc. 57 at 14. Before taking His Law's change ofplea, this Court again probed whether His
Law had any complaint about his CJA counsel:
THE COURT:
Have you had enough time to talk with
Mr. Siebrasse about your case and about
what you should do here today?
THE DEFENDANT [His Law]:
Yeah.
THE COURT:
Are you happy with the work that Mr.
Siebrasse has done on your behalf?
THE DEFENDANT [His Law]:
Yeah.
CR Doc. 57 at 15. His Law then changed his plea to guilty to the charge in the Information of
assault resulting in serious bodily injury. CR Doc. 57 at 16. This Court ordered a Presentence
Investigation Report (PSR) to be done and set a sentencing hearing.
B.
Presentence Investigation Report and Initial Sentencing Hearing
The PSR on His Law contained a calculation of both the offense level and the criminal
history category into which His Law fit under the United States Sentencing Commission
Guideline Manual. With His Law having plead guilty to assault resulting in serious bodily
injury, the base offense level was drawn from U.S.S.G. § 2A2.2. Because Evon Ortiz, His Law's
victim, had suffered nasal fractures, buckling of the mid-nasal septum related to. the nasal
fracture, facial swelling, and multiple bruises to her face and body as a result of His Law's
assault, afive-levelincreaseappliedunderU.S.S.G. § 2A2.2(b)(3)(B). There were other offense
level enhancements deemed applicable in the initial PSR. The initial PSR also contained a
Chapter 4 enhancement under § 4B1.1 because His Law was deemed a career offender, thus
increasing the offense level further. The initial PSR contemplated acceptance of responsibility
credit, but noted behavior by His Law that might justify withholding the acceptance of
responsibility discount in the offense level calculation.
As far as his criminal history category, His Law received three criminal history category
points for a third degree burglary conviction from Davison County, South Dakota in 2003, and
an additional three points for a first degree robbery conviction in Davison County, South Dakota
in 2006. There was other criminal conduct in which His Law had engaged that did not result in
assignment of criminal history points. Although His Law's total criminal history score was six,
the initial PSR deemed His Law a career offender based on the two prior convictions for crimes
of violence under U.S.S.G. § 4Bl.l(b). Other information in the PSR reflected poorly on His
Law and his past conduct.
Through a letter dated June 14,2012, Siebrasse on behalfofHis Law objected to multiple
paragraphs of the PSR. Those objections fit into six categories: 1) objections to the victim's
characterization of the assault and the characterization ofHis Law's conduct in connection with
the assault and its aftermath; 2) an objection to an enhancement for obstructing or impeding
justice based on His Law's alleged intimidation of the victim and other criminal conduct as had
been charged in the indictment; 3) an objection to a notation in the PSR that His Law's conduct
put injeopardy acceptance ofresponsibility credits; 4) an objection to information that the victim
had been restrained as a part of the assault; 5) an objection to categorization of His Law as a
"career offender" both for the offense level calculation and his criminal history category; and 6)
an objection to certain information about His Law's criminal conduct when he was a young man
or juvenile. Based on these arguments, Siebrasse objected to the guideline range calculation in
the initial PSR.
This Court convened a sentencing hearing on July 18, 2012.
CR Doc. 55. The
Government called as a witness Tino Lopez, a special agent with the Bureau of Indian Affairs
who was the case agent involved in the investigation of His Law's assault of Ortiz. CR Doc. 55
at 6. Siebrasse objected to Agent Lopez's testimony concerning information from the victim,
which objection prompted the Court to note:
It is indeed hearsay, but the Court is conducting a sentencing
hearing.4 The Court recognizes that hearsay is entitled to limited
and sometimes no weight whatsoever. The Court will allow the
agent to testify as it might be preliminary to some later questions.
CR Doc. 55 at 7-8. Siebrasse restated hearsay objections as the testimony proceeded. CR Doc.
55 at 9,16,17. Agent Lopez then testified to information obtained from the victim and from his
investigation. Through Agent Lopez, certain exhibits were introduced, including evidence and
photographs from the area where His Law had assaulted the victim. The assault was bloody, and
samples taken from the blood came back as belonging to Ortiz. CR Doc. 55 at 39; Sentencing
Exhibits A-G. On cross-examination, Siebrasse established that the victim had delayed in
reporting the event and that much of what Agent Lopez relied upon came from the victim. CR
Doc. 55 at 17-37. During cross-examination, Siebrasse challenged the victim's credibility and
sought to mitigate the assault. CR Doc. 55 at 31 -37.
Siebrasse at the sentencing hearing called as a witness Marion His Law, the father of His
Law. CR Doc. 55 at 45. Marion His Law's testimony was designed to undermine the account
of the assault by the victim. CR Doc. 55 at 45-50. On cross-examination, Marion His Law
acknowledged that he had refused to be interviewed by law enforcement about the event and did
not personally witness the assault. CRDoc. 55 at 50-54. Siebrasse then called to the stand Twila
4Under Rule 1101(d) of the Federal Rules of Evidence, the rules, except those concerning
privileges, "do not apply to the following: ... (3) miscellaneous proceedings such as: ...
sentencing[.]" Even though the hearsay rules within the Federal Rules of Evidence do not apply in
a sentencing hearing, this Court hews close to the Federal Rules of Evidence in sentencing hearings
and tends to be disinclined to make rulings based solely on hearsay.
8
His Law, the sister ofHis Law. CR Doc. 55 at 54-55. Siebrasse's examination ofTwila His Law
cast doubt on the credibility of the victim and the allegation that His Law had been intimidating
the victim following the assault. CRDoc. 55 at 55-62. Siebrasse next called as a witness Edwin
Assman, a private investigator hired by Siebrasse on the case. CR Doc. 55 at 66. Assman
testified that his investigation revealed no evidence of His Law's use of his shod foot in
assaulting the victim as the victim had claimed. Assman's investigation suggested that the victim
had voluntarily been with His Law after His Law had assaulted her, rather than being
involuntarily taken by His Law to be intimidated. CR Doc. 55 at 66-79.
After receiving evidence at the sentencing hearing, this Court ruled on the objections that
Siebrasse had made for His Law. This Court granted in part the first objection to certain
information from the victim and revised the PSR accordingly. CR Doc. 55 at 81. This Court
denied the objection about certain criminal information that did not affect His Law's criminal
history classification. CR Doc. 55 at 86-87. This Court granted His Law's objection to the
enhancement to the offense level for the use of a dangerous weapon being shod feet, based on
the Government not having come forward with evidence sufficient for the Court to find by a
preponderance ofthe evidence that His Law had stomped or kicked the victim during the assault.
CR Doc. 55 at 88-90. This Court also granted His Law's objection to the obstruction ofjustice
enhancement. CR Doc. 55 at 91-93.
Because of the Court's receipt of information just prior to the sentencing hearing
concerning His Law's misbehavior while in custody, the Court then asked for testimony from
Steve Houghtaling, the then-acting supervisor of the United States Marshal Service in Pierre,
South Dakota. CR Doc. 55 at 93. The United States Marshal Service had provided information
to the Court just prior to the sentencing hearing about His Law's misconduct while in custody,
which the Court in turn wanted to be made known to His Law and counsel. CR Doc. 55 at 9395. His Law had been both disrespectful to prison staff during his time in the custody of the
United States Marshal Service and had struck another inmate so hard that His Law broke his
hand. CR Doc. 55.at 105-106.
This Court then discussed the enhancement under U.S.S.G. § 3A1.3 of two levels for
physical restraint ofthe victim during the assault. Counsel debated whether the victim had been
restrained in a closet while His Law was pummeling her. Concluding that there was not
testimony about restraint in the closet from the victim, this Court again ruled in His Law's favor
at that time on the restraint of the victim enhancement. CR Doc. 55 at 97-99.
This Court then considered whether His Law was a career offender under § 4B1.1.
Siebrasse argued that His Law was not a career offender. CR Doc. 55 at 100-102. Siebrasse also
addressed the issue of whether acceptance of responsibility credit should be revoked from His
Law because of his violent and disrespectful behavior while in the custody of the United States
Marshal Service. CR Doc. 55 at 104-105.
After hearing argument on whether His Law was a career offender based on the third
degree burglary conviction and the robbery conviction in state court, this Court recessed to obtain
the case of Taylor v. United States, 495 U.S. 575 (1990), on which counsel was basing the
argument. After quickly reading the Taylor decision, this Court concluded that the two previous
convictions were of a nature to support the determination that His Law was a career offender
under the sentencing guidelines, and thus overruled Siebrasse's objections in that regard. CR
Doc. 55 at 106-107.
10
This Court then entertained argument from counsel on what the appropriate sentence
should be. The Government, bound under the Plea Agreement to request a sentence within the
guideline range, noted that the guideline range under the Court's calculation at that time was 100
to 120 months and thus asked for a sentence "close to the statutory maximum ifnot the statutory
maximum of 120 months[.]" CR Doc. 55 at 109-110. Siebrasse, on behalf of His Law, argued
for a bottom end of the guideline range of 100 months. CR Doc. 55 at 111 -112. His Law then
addressed the Court. CR Doc. 55 at 113.
This Court then explained its reasoning and in the process expressed difficulty giving His
Law acceptance ofresponsibility credit based on his conduct while in the custody of the United
States Marshal Service. CR Doc. 55 at 113-114. This Court thus calculated the guideline range
under the version ofthe guideline manual applicable to the crime at 100 to 120 months based on
His Law being in offense level 24 after giving him acceptance of responsibility credit and in
criminal history category VI. This Court began its consideration ofthe other 18 U.S.C. § 3553(a)
standards as follows:
The Court considers the nature and circumstances of the
offense. On November 3, 2011, Mr. His Law assaulted Evon
Ortiz in the home in which they were residing at the time. He
was angry at her for whatever reason, maybe a shoving match,
maybe a threat that she was going to kick in a TV, maybe
something else, but he dragged her by her hair, by his own
admission, into a bedroom where he began punching her in the
face with a closed fist, punched her multiple times. She fell, went
down to the ground near a closet and perhaps into a closet and
Mr. His Law continued the assault there.
Ms. Ortiz was left with two black eyes, a nasal bone
fracture, bruising and swelling.
CRDoc. 55 at 114-115.
The Court then considered the personal history of His Law as follows:
11
The Court considers the history of Mr. His Law. He's
already getting hit hard enough for the past criminal conduct so
the Court will gloss by that.
Mr. His Law was raised by parents who did work. It
seemed like it would be a pretty decent upbringing in the Fort
Thompson area. He, however, struggled through his teen years,
alcohol use occurred as early as age 12 and became problematic
in his life. Daily marijuana use also occurred during his teen
years.
He has a limited employment history in part because he
spent some of his life in jail.... [H]e has a family that supports
him and it appears from the history that the Court has reviewed,
that he has issues with anger management and substance abuse.
One of the things that did strike the Court is that while in
state custody, Mr. His Law had 163 violations of rules in state
custody, 73 ofwhich were major rule violations. And again, he's
done poorly while in the custody of the United States Marshal.
CRDoc. 55 at 115-116.
This Court also considered the need for the sentence to reflect punishment, protection of
the public, and deterrence. CR Doc. 55 at 116. This Court noted that "in thinking about this case
that even if he were not a career offender, the Court probably would end up at the same place by
way of upward variance." CR Doc. 55 at 116. The Court then determined that the length of the
sentence should be 100 months, as the length that was sufficient, but not more than necessary,
considering all of the factors under § 3553(a). CR Doc. 55 at 116. This Court imposed three
years of supervised release, restitution, and a special assessment. CR Doc. 55 at 117-120. This
Court advised His Law ofhis appeal rights, and ofthe effect ofthe waiver provision in Paragraph
Q. CRDoc. 55 at 121.
C.
Continuation of Sentencing Hearing
This Court following the July 18, 2012 sentencing hearing contacted counsel about its
hesitation in signing a judgment and its desire to continue the sentencing hearing because of
12
certain issues. The continuation ofHis Law's sentencing hearing took place on August 15,2012.
CR Doc. 53. This Court began the hearing by describing why a second phase of the sentencing
hearing was occurring:
THE COURT: The Court believes it makes sense for the Court
to put on the record what transpired after the sentencing hearing
that was held on July 16, 2012, in Mr. His Law's Case.
The Court occasionally has second thoughts about a
sentencing decision. And in the days following Mr. His Law's
sentencing hearing, pondered whether Mr. Siebrasse's argument
about whether Mr. His Law was a career offender was correct.
The Court, during Mr. His Law's sentencing hearing,
received on the bench and reviewed the United States Supreme
Court case ofUnited States versus Tavinr. which is a complicated
case. And the Court thought it got its ruling right in deciding that
Mr. His Law was indeed a career offender but wanted to look at
the issue a bit more. So the Court hesitated and did not sign a
judgment.
As the Court was looking at that issue in greater depth,
probation and pretrial services notified the Court that the Court's
rulings in favor of Mr. His Law during the course of the
sentencing hearing resulted in an offense level calculation that
was lower than what was in the Presentence Investigation
Report[,] than what was believed by the Court and th[a]n what
was believed by counsel.
So for those reasons, and with that having occurred, the
Court contacted counsel for the parties about the Court's desire to
have a second sentencing hearing - a continuation of the
sentencing hearing to address and sort out these issues.
The Court also wanted to think a bit more about whether
Mr. His Law was entitled to acceptance ofresponsibility credit in
the wake of his conduct while in prison. On that issue, the Court
had received - very shortly before the sentencing hearing information that Mr. His Law had been involved in more than one
physical altercation while in prison, and the Court somewhat
sprung that on counsel either at the sentencing hearing or very
shortly before the sentencing hearing.
The Court did not ultimately revoke acceptance of
responsibility credit, but it was one of those issues that came up
very close in time to the sentencing hearing. So that was another
reason why the Court felt that it was best in the interests ofjustice
13
to have a second sentencing hearing so that the Court could be
assured that it was getting everything right.
Now, since that time and indeed around the time the Court
contacted counsel, the Court did have an opportunity to review
Taylor versus United States, the 1990 Supreme Court case... and
the Eighth Circuit authority that has followed it, including United
States versus Bockes. B-O-C-K-E-S, an Eighth Circuit case from
2006; and United States versus Forrest, an Eighth Circuit case
from 2010; as well as United States versus Sawver. an Eighth
Circuit case from 2009.
The Court's conclusion is that the robbery conviction is,
in fact, a crime of violence.
The Bockes. Forrest, and Sawver cases guide the Court in
understanding the analysis in the United States Supreme Court
case of Taylor. The definition of "robbery" in South Dakota
includes intentional taking of personal property regardless of
value, quote, "accomplished by means of force or fear of force."
End quote.
As far as the burglary conviction, there is a case from the
Eighth Circuit that arose out of South Dakota and looked at the
burglary conviction. That case is United States versus Stvmiest
S-T-Y-M-I-E-S-T, which is an Eighth Circuit case. And that case
seems to be squarely on point to establish that the third-degree
burglary offense committed by Mr. His Law was indeed a crime
of violence.
So the Court takes the bench at this hearing with greater
confidence that its ruling about Mr. His Law being a career
offender is correct.
As the Court has notified counsel, however, the offense
level calculation for Mr. His Law was inflated at the time the
Court made its decision as to sentencing.
CR Doc. 53 at 3-6.
The Government at the second sentencing hearing raised the issue of the Court's ruling
on the "restraint ofvictim" enhancement and the acceptance ofresponsibility credit issue in light
ofHis Law's behavior in the custody ofthe United States Marshal. CR Doc. 53 at 7-8. Siebrasse
objected on behalf of His Law to those matters. CR Doc. 53 at 8-9. The Court did not revoke
acceptance ofresponsibility credit, but reconsidered the victim related adjustment under U. S. S .G.
14
§ 3A1.3 for physical restraint. The Government cited the case ofUnited States v. Brings Plenty,
335 F.3d 732 (8th Cir. 2003), which supported a two-point enhancement for restraint of victim
when the victim was drug by her ankle from one room to another. CR Doc. 53 at 12-13.
Siebrasse on behalf of His Law argued against the enhancement. CR Doc. 53 at 14. The Court
reviewed Brings Plenty, expressed reluctance to rule differently than it had on the restraint of
victim enhancement, but noted that Brines Plenty stood for the proposition that a victim grabbed
by her ankle and pulled off a bed into a different room was conduct sufficient to support the
enhancement. In the Factual Basis Statement acknowledged by His Law to be accurate at his
change of plea hearing, His Law had admitted that he "grabbed [the victim] by the hair and
dragged her into the southwest bedroom of the home" where he then beat her with his fists. CR
Doc. 28; CR Doc. 53 at 14-15. Because drawing directly from the Factual Basis Statement did
not require the Court to rely on Ortiz's credibility or hearsay statements Ortiz had made to Agent
Tino Lopez and because of the parallel to the facts in Brines Plenty, this Court concluded that
the two-level enhancement ought to apply. CR Doc. 53 at 16-17. The two-level enhancement
did not effect the guideline calculation ultimately. If His Law were not a career offender and
even with the two-level enhancement, His Law would have been at total offense level 21. Being
a career offender, His Law's total offense level was 24.
The Amended PSR, based on the previous rulings of the Court, calculated a guideline
range of 77 to 96 months, rather than what the Court and all counsel had believed to be a
guideline range of 100 to 120 months. CR Doc. 53 at 17. This Court again heard argument from
counsel with Government's counsel requesting a sentence at the top end of the guideline range
of 96 months and Siebrasse requesting a sentence at the bottom end of the range of 77 months.
15
CR Doc. 53 at 18-20. This Court again allowed His Law an opportunity to address the Court,
and then explained its reasoning on a somewhat more abbreviated basis as to what the sentence
ought to be. CR Doc. 53 at 20-24. This Court stated:
The sentencing guidelines are advisory in nature, but they
are one of the factors that Congress directs the Court to consider.
So the Court wanted to have this second hearing with it
understood that the guideline range is actually 77 to 96 months in
length.
CR Doc. 53 at 21. After discussing the § 3553(a) factors as applied to His Law and his case, this
Court then reasoned:
When the Court held the sentencing hearing in mid-July,
the Court made the observation that, even setting aside the
guidelines, the § 3553(a) factors would drive the Court towards
a sentence of 100 months. At that time the Court was thinking
the range was 100 to 120 months and felt a sentence towards the
bottom end ofthat range as appropriate. Now, knowing the range
actually be 77 to 96 months, the Court's instinct is to sentence
towards the top end of that range.
CR Doc. 53 at 23. The Court then imposed on His Law a sentence of 96 months in the custody
of the Bureau of Prisons with supervised release and other terms. CR Doc. 53 at 25-28. The
Court thereafter gave His Law information on his appeal rights. CR Doc. 53 at 28-29. The
Court signed the Judgment in a Criminal Case on August 15, 2012. CR Doc. 47.
His Law filed a Notice of Appeal of the Judgment and Commitment. CR Doc. 49. The
United States Court of Appeals for the Eighth Circuit entered judgment against His Law on his
appeal stating:
The Government has moved to dismiss this appeal on the
ground defendant executed a valid and enforceable waiver of his
right of appeal as part of the plea agreement in the matter.
16
The court has carefully reviewed the motion and
defendant's response, and the government's motion is granted.
The appeal is hereby dismissed.
CR Doc. 65.
II.
Discussion of His Law's § 2255 Motion
Under Rule 4 of the Rules Governing Section 2255 Proceedings for the United States
District Courts, "[i]f it plainly appears from the motion, any attached exhibits, and the record of
prior proceedings that the moving party is not entitled to relief, the judge must dismiss the
motion and direct the clerk to notify the moving party." See also LaRochev. United States, Civ.
No.l3-CV-3019-RAL,2014WL1218906,at*2(Mar.24,2014).Here,therecordofthechange
ofplea hearing and sentencing hearings are plain, the effective assistance of His Law's counsel
is apparent from the transcripts, and His Law is not entitled to relief.
A.
Ground One
His Law's first argument for § 2255 relief is "government breached plea agreement" by
not standing by "its promise to recommend a 'within' guideline sentence." CIV Doc. 1 at 2, 4.
The Plea Agreement into which His Law entered with the Government committed the
Government to recommend a sentence "within the applicable Guideline range." CR Doc. 26 at
1G. At the first sentencing hearing, the Government attorney suggested a sentence toward the
top of what then was understood as the applicable guideline range. CR Doc. 55 at 109-110. At
the second sentencing hearing, the Government attorney recommended a sentence of96 months,
which was the top of the guideline range of 77 to 96 months. CR Doc. 53 at 19.
His Law mistakenly believes that a sentence at the top of the guideline range is not
"within the guideline range." The Eighth Circuit has made clear that a sentence at the top of the
17
guideline range is considered "within" the guideline range. United States v.Woodrum. 959 F.2d
100 (8th Cir. 1992) (per curiam). In Woodrum, the defendant argued that his sentence was
excessive because it was at the top of a guideline range of21 to 27 months. That is, Woodrum's
applicable guideline range was 21 to 27 months, and he received a sentence of 27 months. Id
at 101. The Eighth Circuit determined that "Woodrum's sentence was imposed within the
applicable Guideline range," even though the sentence was at the top ofthe range. Id Thus, the
Government did not violate its Plea Agreement with His Law by recommending a sentence of
96 months, the top ofthe guideline range. Id; see also United States v. Kirschner. 443 F. App'x
480, 481 (1 lth Cir. 2011) (per curiam) (finding that government did not violate agreement to
recommend a within-guideline sentence by arguing for a sentence a the top end of the
guidelines). The 96 months that His Law received as a sentence is "within" the applicable
guideline range of 77 to 96 months.
B.
Ground Two
The second ground that His Law cites for relief is that Siebrasse did not render effective
assistance of counsel at the sentencing or appeal stages. CIV Doc. 1 at 5. Although the § 2255
motion mentions as well "pre-plea stages," His Law twice told the Court under oath at his change
of plea hearing that he was satisfied with the counsel, advice, and representation provided by
Siebrasse. CR Doc. 57 at 4, 15. Further, His Law's memorandum submitted with his § 2255
motion expresses dissatisfaction with Siebrasse only concerning Siebrasse's performance at the
sentencing proceeding and on appeal. CIV Doc. 2.
Under Strickland v. Washington, 466 U.S. 668 (1984), His Law must meet a two-prong
test to prevail on a claim of ineffective assistance of counsel. Under the first prong, His Law
18
~
must demonstrate "errors so serious that counsel was not functioning as the 'counsel' guaranteed
the defendant by the Sixth Amendment." Id at 687. To make such a showing, His Law must
overcome the "strong presumption that counsel's conduct falls within the wide range of
reasonable professional assistance; that is, the defendant must overcome the presumption that,
under the circumstances, the challenged action might be considered sound trial strategy." Id at
689 (internal quotation marks omitted). "Judicial scrutiny of counsel's performance must be
highly deferential." Id "When reviewing counsel's performance, a court must avoid using the
'distorting effects ofhindsight' and must evaluate the reasonableness of counsel's conduct 'from
counsel's perspective at the time.'" United States v. Carter. 629 F. Supp. 2d 934, 940 (D.S.D.
2009) (quoting Strickland. 466 U.S. at 689).
Under the second prong of Strickland. His Law must demonstrate prejudice from
counsel's error. Strickland, 466 U.S. at 687. "To establish prejudice, [His Law] must show 'a
reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding
would have been different.'" Wong v. Belmontes. 558 U.S. 15, 19-20 (2009) (per curiam)
(quoting Strickland, 466 U.S. at 694). Thus, His Law faces what the Supreme Court has
characterized as a "highly demanding" standard under Strickland. Kimmelman v. Morrison. 477
U.S. 365, 382 (1986). His Law has not met that standard.
Siebrasse's performance during the sentencing process is a matter of record before this
Court. Siebrasse timely filed a number of objections to the PSR. Siebrasse effectively crossexamined the witness that the Government called at the sentencing hearing and presented three
witnesses on behalf of His Law.
Siebrasse's performance at the first sentencing hearing
prompted this Court to rule in favor of His Law on nearly every material issue, except for the
19
career offender issue. It is true that at the end of the first sentencing hearing, this Court
mistakenly believed the guideline range to be 100 to 120 months, and Siebrasse did not catch that
error at the hearing, nor did the Court, the Government, or the probation and pretrial services
officer present at the sentencing hearing.
This Court's initial misunderstanding of the guideline range of 100 to 120 months, and
Siebrasse's failure to notice the error, clearly was harmless. This Court opted not to sign a
judgment and scheduled a second sentencing hearing where the proper guideline range of 77 to
96 months was used. Siebrasse effectively represented His Law at the second phase of the
sentencing. For reasons based on the sentencing guidelines and § 3553(a) factors, the Court
sentenced His Law to 96 months, the top end of the proper guideline range.
There was nothing in Siebrasse's performance that would be "errors so serious that
counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment."
Strickland, 466 U.S. at 687. Moreover, there was no prejudice in that, as described by the Court,
the § 3553(a) factors drove the Court to 100 months at the first sentencing hearing and, giving
His Law a break by four months, to the top end of the guideline range of 96 months at the second
hearing.
C.
Ground Three
Section 2255 provides that a federal prisoner may challenge his sentence on the grounds
that: (1) "the sentence was imposed in violation of the Constitution or laws of the United
States[;]" (2) "the court was without jurisdiction to impose such a sentence[;] or (3) "that the
sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral
attack." His Law's third ground for relief under § 2255 does not allege jurisdictional or
20
constitutional error. Rather, His Law argues that the Court inappropriately applied the law,
particularly with respect to the career offender calculation and the enhancement under Brings
Plenty. CTV Doc. 1 at 7. This type of collateral attack on a sentence is "severely limited;
an
error of law does not provide a basis for collateral attack unless the claimed error constituted a
fundamental defect which inherently results in a complete miscarriage ofjustice."1 Sun Bear v.
United States, 644 F.3d 700, 704 (8th Cir. 2011) (en bane) (quoting United States v. AHHnni™
442 U.S. 178, 185(1979)).
The miscarriage-of-justice exception is inapplicable in this case. In Sun Bear, the Eighth
Circuit held that § 2255 provided no relief to a federal prisoner sentenced below the statutory
maximum even though the prisoner had been sentenced as a career offender under U.S.S.G.
§ 4B1.1 based upon a predicate offense that was later determined not to be a crime of violence.
Id at 704-06. The Eighth Circuit "characterized this error as an 'ordinary' Sentencing Guidelines
question rather than a cognizable error of law or an error that fits within any miscarriage-ofjustice exception for § 2255 relief." Brvdon v. United States 494 F. App'x 684, 685 (8th Cir.
2012) (per curiam) (citing Sun Bear, 644 F.3d at 704). Because this Court sentenced His Law
well below the statutory maximum, there was no miscarriage ofjustice and the "ordinary" issues
of guideline interpretation raised in His Law's third ground for relief are not cognizable under
§ 2255.5
Although the record is somewhat unclear concerning what issues His Law raised on direct
appeal, there are other reasons that His Law is not entitled to relief on his sentencing arguments
First, to the extent that His Law failed to raise his sentencing arguments on direct appeal, he has not
demonstrated cause and prejudice to excuse this failure. Accordingly, he is procedurally barred from
raising these arguments now. See Meeks v. United States 742 F.3d 841, 844 (8th Cir 2014) ("A
§ 2255 petition is not a second direct appeal and issues raised for the first'time in a § 2255 petition
are procedurally defaulted."); see also Barron v. United States Mris 7:13-CV-90171 (HL) 7'10-CR21
Even if His Law's third ground for relief were cognizable under § 2255, there was no
error in how the guidelines ultimately were calculated for His Law. The two-level enhancement
under Brings Plenty, 335 F.3d 732, for restraint of the victim applies. His Law, by his own
admission in the Factual Basis Statement, grabbed the victim by the hair and dragged her from
one room into the bedroom where he then began hitting her repeatedly in the face and upper body
with his fists. In Brings Plenty, the Eighth Circuit affirmed the two-level enhancement where
the victim was dragged from one room to the next by her ankle. Id at 735-36. There is no
reason to distinguish Brings Plenty from this instance, where the difference is that His Law chose
to drag the victim by her hair rather than by her ankle, from one room to the next before beating
her with his fists. Brings Plenty supports the application of the two-level enhancement to His
Law's offense.
As for the career offender enhancement under U.S.S.G. § 4B1.1, this Court relied on
Taylor, 495 U.S. 575. The Supreme Court in Taylor made clear that courts should take a
"categorical approach" when determining whether a defendant has committed a violent felony
as defined in 18 U.S.C. § 924(e). Id at 601-02. That is, courts should look to the statutory
definition of the offense rather than the facts underlying the defendant's prior conviction. Id at
602. When a prior conviction is for violating a "divisible" statute, however, courts may apply
24 (HL), 2014 WL 1255206, at *1 (M.D. Ga. Mar. 26, 2014) ("The fact that Petitioner failed to
appeal on these issues because he waived his right to appeal in his plea agreement does not constitute
a sufficient cause to suspend the procedural default rule."). Second, to the extent that His Law raised
his sentencing arguments on appeal, the Eighth Circuit decided adversely to His Law on these issues
by concluding that he had executed a valid waiver ofhis appellate rights and thus could not challenge
his sentence on the aforementioned grounds. Accordingly, he may not relitigate these issues now
Se^ Bear Stops v. United States, 339 F.3d 777, 780 (8th Cir. 2003) ("It is well settled that claims
which were raised and decided on direct appeal cannot be relitigated on a motion to vacate pursuant
to 28 U.S.C. § 2255.") (citation omitted).
22
the "modified categorical approach." Descamps v. United States. 133 S. Ct. 2276,2281 (2013).
A statute is divisible when it sets out one or more of the elements of the offense in the
alternative. Id If one alternative constitutes a violent felony, but another does not, courts may
"consult a limited class of documents, such as indictments and jury instructions, to determine
which alternative formed the basis of the defendant's prior conviction." Id Although Taylor
and Descamps concerned § 924(e), the Eighth Circuit has applied the same approach when
determining whether a prior conviction was a "crime of violence" under U.S.S.G. § 4B1.1.
United States v. Vinton, 631 F.3d 476, 484 (8th Cir. 2011). The Eighth Circuit reasoned that
because the definition of "crime of violence" in § 4B1.2 is very similar to the definition of
"violent felony" in § 924(e), cases interpreting § 924(e) "can be instructive" with respect to
§4B1.2. Vinton, 631 F.3d at 484; see also United States v. Williams. 690 P ^H 1 ns^ 1 n*7 (gth
Cir. 2012) ("The definition of'crime of violence' contemplated by § 4B1.2(a) is nearly identical
to that of'violent felony,' as contemplated by 18 U.S.C. § 924(e)(2)(B)... and we treat the two
as interchangeable.").
Under the guideline manual, a "crime of violence" means
any offense under federal or state law, punishable by
imprisonment for a term exceeding one year, that(1) has as an element the use, attempted use, or threatened use of
physical force against the person of another, or
(2) is burglary of a dwelling, arson, or extortion, involves use of
explosives, or otherwise involves conduct that presents a serious
potential risk of physical injury to another.
U.S.S.G. §4B1.2(a)(l)-(2). The guidelines specifically list robbery as an included offense. Id
§ 4B1.2 cmt. n.l. The South Dakota robbery statute under which His Law was convicted,
S.D.C.L. § 22-30-1, fits within § 4B1.2(a)(l):
23
Robbery is the intentional taking of personal property, regardless
of value, in the possession of another from the other's person or
immediate presence, and against the other's will, accomplished by
means of force or fear of force, unless the property is taken
pursuant to law or process of law.
S.D.C.L. § 22-30-1 (emphasis added). The Eighth Circuit has found similar robbery statutes to
qualify as a violent felony under § 924(e), United States v. Forrest. 611 F.3d 908, 911 (8th Cir.
2010), and a crime of violence under § 4B1.1, United States v. Sawver. 588 F.3d 548, 555-56
(8th Cir. 2009).
The second offense ofviolence supporting adjudging His Law to be a career offender was
a third degree burglary conviction in 2002. At that time, S.D.C.L. § 22-32-8 provided: "Any
person who enters an unoccupied structure, with intent to commit any crime other than the act
of shoplifting or retail theft... or remains in an unoccupied structure after forming the intent to
commit any crime other than shoplifting ... is guilty of third degree burglary." His Law's
argument concerning his third-degree burglary conviction appears to be that the, Government had
a burden to produce certain documents related to this conviction before this Court could find that
the conviction constituted a crime of violence. The Eighth Circuit's decision in United States
v. Stymiest, 581 F.3d 759 (8th Cir. 2009), forecloses this argument. In Stvmiest. the Eighth
Circuit considered whether a conviction under § 22-32-8 constituted a crime of violence as
defined in U.S.S.G. § 4B1.2(a). Concerned that § 22-32-8 was "over-inclusive because it defines
'structure' to include motor vehicles, watercraft, aircraft, railroad cars, trailers, and tents[,]" the
Eighth Circuit looked to a statement in the defendant's PSR, to which the defendant did not
object, that established that the defendant had burgled a building. Id at 768. Although the
defendant had made a general objection to the PSR classifying him as a career offender, thisiwas
■
24
insufficient to "trigger the government's obligation to introduce court documents confirming the
PSR's fact statement that he burgled a building." Id, So too here. Although His Law objected
to the PSR classifying him as a career offender, he did not object to paragraph thirty-five of his
PSR, which recounted the facts underlying his third degree burglary conviction. Accordingly,
the Government was not required to introduce evidence confirming paragraph thirty-five. Id;
seealso United States v. Reliford, 471 F.3d 913, 916 (8th Cir. 2006) ("[I]f the defendant fails
to object to fact statements in the presentence report (PSR) establishing that a prior offense was
a violent felony conviction, the government need not introduce at sentencing the documentary
evidence that Taylor and Sheppard otherwise require.").
To the extent His Law argues that his conviction for third degree burglary does not fall
within § 4B1.2(a)'s definition of "crime of violence," he is incorrect. In Stvmiest. the Eighth
Circuit applied the modified categorical approach to the defendant's conviction under § 22-32-8
to determine whether the conviction constituted a "generic burglary," which the Eighth Circuit
defined as "unlawful or unprivileged entry into, or remaining in, a building or structure, with the
intent to commit a crime." Id at 767 (emphasis in original) (quoting Taylor. 495 U.S. at 598-99).
Because the defendant's PSR established that the defendant had burgled a building—rather than
one of the other "structures" listed in § 22-32-8—the Eighth Circuit determined that the
defendant's third degree burglary conviction was a "generic burglary" and therefore constituted
a crime of violence under Eighth Circuit precedent. Id at 768-69. Here, paragraph thirty-five
of His Law's PSR states that His Law entered a "trailer house" without permission and violently
assaulted a person therein. The modified categorical approach permitted this Court at sentencing
to consider that His Law had burgled a trailer house when determining whether His Law's
25
conviction for third degree burglary constituted a generic burglary. This approach establishes
that His Law was, in fact, convicted of generic burglary rather than some form of non-generic
burglary under § 22-32-8. Thus, there was no error in ruling His Law to be a career offender for
purposes of the sentencing guideline calculation.
IV.
Conclusion
For the reasons contained herein, it is hereby
ORDERED that His Law's motion to vacate, set aside, or correct sentence by a person
in federal custody, CIV Doc. 1, is denied. It is further
ORDERED that the Clerk of Court provide a copy of this Opinion and Order to His Law.
It is further
ORDERED that no certificate of appealability under Rule 11 (a) of the Rules Governing
Section 2255 Proceedings for the United States District Courts will issue. It is finally
ORDERED, ADJUDGED AND DECREED that judgment of dismissal in favor of the
Government and against His Law under Rules 54 and 58 of the Federal Rules of Civil Procedure
hereby enters.
Dated April 33*2014.
BY THE COURT:
ROBERTO A. LANGE
UNITED STATES DISTRICT JUDGE
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