Gwynn v. USA (RLJ2)
Filing
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MEMORANDUM AND OPINION as set forth in following order. Signed by District Judge R Leon Jordan on 10/23/19. (c/m to Vanessa Gwynn #48802-074, ALDERSON FEDERAL PRISON CAMP, Inmate Mail/Parcels, GLEN RAY RD. BOX A, ALDERSON, WV 24910) (ABF)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT GREENEVILLE
VANESSA GWYNN,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
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Nos. 2:17-CV-120; 2:15-CR-89(4)
Judge Jordan
MEMORANDUM OPINION
Before the Court is Petitioner Vanessa Gwynn’s pro se motion to vacate, set aside, or
correct her sentence under 28 U.S.C. § 2255 and her supporting memorandum brief [Docs. 1-2]. 1
The United States has responded in opposition [Doc. 4]. Petitioner did not reply to the response
and the time for doing so has now passed [Doc. 3, requiring any reply be filed within 30 days of
the response]. In its response, the United States asserts that Petitioner is not entitled to relief
because her claims have no merit or are controverted by the record.
The Court finds the materials thus submitted, together with the record of the underlying
criminal case conclusively show that Petitioner is not entitled to relief on the claims asserted in
her motion. Accordingly, the Court will decide this matter without an evidentiary hearing. See
Campbell v. United States, 686 F.3d 353, 357 (6th Cir. 2012). For the reasons discussed below,
the Court will find that Petitioner’s motion to vacate lacks merit and, thus, will DENY and
DISMISS her § 2255 motion WITH PREJUDICE.
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Unless otherwise noted, all docket references in this Memorandum Opinion are to the document numbers
in Petitioner’s civil case, Case Number 2:17-CV-120.
I.
PROCEDURAL AND FACTUAL BACKGROUND
On August 11, 2015, a federal grand jury issued a 17-count indictment charging Petitioner
and five co-defendants with various drug-trafficking and other crimes. Petitioner was charged
with conspiracy to distribute and to possess with intent to distribute one kilogram or more of a
mixture or substance containing a detectable amount of heroin, in violation of 21 U.S.C. §§
841(a)(1), (b)(1)(A), and 846 (Count 1); conspiracy to distribute and to possess with intent to
distribute oxycodone, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C), and 846 (Count 2);
distributing 100 grams or more of a mixture or substance containing a detectable amount of heroin,
in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B) (Count 9); and possession with the intent to
distribute oxycodone, a violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(c) (Count 10) [Doc. 3, Case
No. 2:15-CR-89]. Petitioner was brought to this district from a detention facility in the State of
Michigan pursuant to a writ of habeas corpus ad prosequendum and, upon her first appearance
before the Court, was appointed local counsel [Docs. 26-27, 33-36, 40, Case No. 2:15-CR-89].
On June 28, 2016, Petitioner entered into a plea agreement with the government, see Fed.
R. Crim. P. 11(c)(1)(A) [Doc. 93, Case. No. 2:15-CR-89]. Petitioner agreed to plead guilty to
Count 2, the oxycodone conspiracy, as charged in the indictment, with the remaining counts to be
dismissed at sentencing [Id. at ¶¶ 1-2]. The Court draws the facts from those to which Petitioner
stipulated, as contained in the factual basis in the plea agreement [Id. at ¶ 4].
In the factual basis, Petitioner admitted that she was involved in a conspiracy to distribute
multiple substances, including heroin and oxycodone, in the Eastern District of Tennessee [Id. at
¶ 4(a)]. The way the conspiracy functioned was that drugs obtained from a source in Detroit,
Michigan were transported by co-conspirator couriers into the Eastern District and then the drugs
were distributed further by members of the conspiracy [Id.]. Petitioner acknowledged that she
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acted primarily as a courier, transporting heroin and/or oxycodone provided to her by a codefendant in Detroit to other conspirators in this district and elsewhere; that she would return to
Michigan with cash proceeds from the drug trafficking activity; and that she would give those
proceeds to the co-defendant who had provided her with the drugs [Id. at ¶ 4(b)].
On August 31, 2014, a confidential source (CS) placed recorded calls to Petitioner and the
co-defendant to arrange a pick-up of $3,000, as payment for drugs [Id. at ¶ 4(c)]. The co-defendant
told the CS to call Petitioner and tell her to come pick up the money and that he (the co-defendant)
would be sending an unknown quantity of heroin and oxycodone with Petitioner on her return trip
for delivery to the CS [Id.]. Petitioner told the CS that she would be at the CS’s residence to pick
up the money in early morning hours of September 1, 2014 [Id.].
On that day, law enforcement agents surveilled the meeting between Petitioner and the
CS, during which the CS gave Petitioner $3,000 to deliver to the co-defendant in Detroit [Id. at ¶
4(d). Petitioner told the CS that she should return with the drug shipment in the early morning
hours of September 2, 2014 [Id.].
On September 2, 2014, law enforcement agents again surveilled the meeting between
Petitioner and the CS [Id. at ¶ 4(e)]. Petitioner was stopped by agents and found to have some 4.5
ounces of heroin and 359 Roxicodone pills [Id.]. Petitioner admitted that the drugs were obtained
from the co-defendant in Detroit, that the pills were intended to be delivered to unindicted coconspirators, and that the heroin was intended to be delivered to the CS [Id.]. Petitioner then placed
a recorded telephone call to the co-defendant in Detroit and, during the conversation, discussed
the traffic stop in which the drugs that he had provided her were discovered by law enforcement
agents [Id. at ¶ 4(f)].
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For purposes of the plea agreement, Petitioner agreed that she should be held responsible
for 128 grams of heroin (128 kilograms of marijuana equivalent) and for 359 pills of 30 milligrams
of oxycodone (72 kilograms of marijuana equivalent), for a total drug quantity of 200 kilograms
of marijuana [Id. at ¶4(g)]. Finally, the plea agreement provided that, in exchange for her guilty
plea, Petitioner waived her right to file a direct appeal, with two exceptions, and her right to file a
§ 2255 motion or a collateral attack on her conviction or sentence, excluding claims of
prosecutorial misconduct or ineffective assistance of counsel [Id. at ¶ 10(a) and (b)].
On July 14, 2016, two weeks and a few days after entry of the plea agreement, Petitioner
pled guilty to the oxycodone conspiracy charge in Count 2 in the indictment [Doc. 115, Minute
Entry, Case. No. 2:15-CR-89]. Thereafter, the United States Probation Office issued a Presentence
Investigation Report (PSR) to assist the Court in sentencing Petitioner [Doc. 134 (sealed), Case
No. 2:15-CR-89].
Using United States Sentencing Guideline (“USSG”) § 2D1.1 for § 846 offenses involving
100 kilograms but less than 400 kilograms of marijuana, the probation officer who prepared the
PSR determined that Petitioner’s base offense level was 24, see USSG 2D.1.1(c)(8) [Id. at ¶ 22].
Two levels were subtracted under USSG § 5C1.1 because Petitioner met the requirements of the
safety valve, 2 USSG § 2D1.1(b)(1), for an adjusted offense level of 22 [Id. at ¶¶ 23, 27]. A twolevel and a one-level reduction for acceptance of responsibility, USSG §§ 3E1.1(a) and (b), yielded
a total offense level of 19, which, along with a criminal history category of I, resulted in an
2
At the time of Petitioner’s sentencing, to qualify for a reduced sentence under the safety-valve provision,
a defendant must satisfied the five following criteria: they cannot have more than one criminal history point;
they cannot have used violence or credible threats of violence or possessed a firearm or other dangerous
weapon in connection with the offense; their offense cannot have resulted in death or serious bodily injury
to any person; they cannot have been an organizer, leader, manager or supervisor of others in the offense;
and they must have truthfully provided all the information and evidence concerning the offense. 18 U.S.C.
§ 3553(f)(1)-(5); USSG § 5C1.2.
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advisory Guidelines range of 30 months to 37 months [Id., ¶¶ 29-31, 36, 50]. The PSR noted that
Petitioner’s statutory maximum sentence was twenty years [Id. at ¶ 49].
No objections to the PSR were made by either party, though defense counsel did file an
impassioned sentence memorandum, pleading for a sentence that did not involve incarceration
[Docs. 138, 171, Case No. 2:15-CR-89]. The government moved for a downward departure and
an additional one-level for acceptance of responsibility (as noted, that additional point had already
been accounted for in the PSR), and the Court granted the motions and dismissed the remaining
counts upon motion of the government [Docs. 152 and 177-78, Case No. 2:10-CR-89]. The Court
sentenced Petitioner to 27 months’ imprisonment, below her Guidelines range, and set her sentence
to be served concurrently with any sentence in her Mt. Clemons, Michigan case, Case No. 2016004314-FH, in the Sixteenth Circuit Court, to be followed by three years of supervised release
[Docs. 177-78, No. 2:15-CR-89].
In keeping with the appeal waiver in the plea agreement, Petitioner did not file a direct
appeal. Instead, Petitioner submitted this timely pro se § 2255 motion to vacate on July 17, 2017,
claiming, first, that counsel gave her ineffective assistance by failing to seek a downward
adjustment for her minor role in the oxycodone conspiracy and, second, that counsel, this Court,
and the government failed to award her points for acceptance of responsibility [Doc. 1].
II.
A.
STANDARDS OF REVIEW
Motions to Vacate
To obtain relief under 28 U.S.C. § 2255, a petitioner must demonstrate “(1) an error of
constitutional magnitude; (2) a sentence imposed outside the statutory limits; or (3) an error of fact
or law . . . so fundamental as to render the entire proceeding invalid.” Short v. United States, 471
F.3d 686, 691 (6th Cir. 2006) (quoting Mallett v. United States, 334 F.3d 491, 496–97 (6th Cir.
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2003)). To warrant relief under 28 U.S.C. § 2255 because of constitutional error, the error must
be one of constitutional magnitude which had a substantial and injurious effect or influence on the
proceedings. Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (citation omitted) (§ 2254 case);
Jefferson v. United States, 730 F.3d 537, 549 (6th Cir. 2013) (applying Brecht test to § 2255
motion). A petitioner “must clear a significantly higher hurdle than would exist on direct appeal”
to secure collateral relief. United States v. Frady, 456 U.S. 152, 166 (1982); Regalado v. United
States, 334 F.3d 520, 528 (6th Cir. 2003) (citing Frady, 456 U.S. at 166).
B.
Ineffective Assistance of Counsel
When a § 2255 movant claims she was denied her Sixth Amendment right to effective
assistance of counsel, a court must presume that counsel provided effective assistance, and the
movant bears the burden of showing otherwise. Mason v. Mitchell, 320 F.3d 604, 616-17 (6th Cir.
2003). To meet that burden, a movant must prove that specific acts or omissions by her attorney
were deficient and that the attorney failed to provide “reasonably effective assistance,” Strickland
v. Washington, 466 U.S. 668, 687 (1987), which is measured by “prevailing professional norms,”
Rompilla v. Beard, 545 U.S. 374, 380 (2005). “[T]he constitutional right at issue here is ultimately
the right to a fair trial, not to perfect representation.” Smith v. Mitchell, 348 F.3d. 177, 201 (6th
Cir. 2003) (citing Strickland).
Second, a petitioner must demonstrate “a reasonable probability that, but for [counsel’s
acts or omissions], the result of the proceedings would have been different.” Strickland, 466 U.S.
at 694. “A reasonable probability is a probability sufficient to undermine confidence in the
outcome,” id., and “requires a substantial, not just conceivable, likelihood of a different result.”
Cullen v. Pinholster, 563 U.S. 170, 189 (2011) (citation and internal quotation marks omitted). In
a guilty plea context, to establish prejudice a petitioner “must show that there is a reasonable
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probability that, but for counsel’s errors, [s]he would not have pleaded guilty and would have
insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985). Yet, “[a]n error by counsel,
even if professionally unreasonable, does not warrant setting aside the judgment of a criminal
proceeding if the error had no effect on the judgment.” Strickland, 466 U.S. at 691; see also Smith
v. Robbins, 528 U.S. 259, 285–86 (2000).
Furthermore, if “it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be
followed.” Strickland, 466 U.S. at 697.
“Surmounting Strickland’s high bar is never an easy task and the strong societal interest in
finality has ‘special force with respect to convictions based on guilty pleas.’” Lee v. United States,
137 S. Ct. 1958, 1967 (2017) (quoting United States v. Timmreck, 441 U.S. 780, 784 (1979)
(internal citation omitted).
III.
DISCUSSION
Both of Petitioner’s claims of ineffective assistance presented in her § 2255 motion to
vacate are groundless. Additionally, the second claim, which is also offered as both a court error
and (broadly construing it) prosecutorial misconduct, is equally groundless because the record
refutes it. The Court addresses each claim in turn.
A.
Failure to seek a Downward Adjustment for Role in the Offense [Doc. 1 at 4].
In this claim, Petitioner asserts that she met the criteria for a downward adjustment under
USSG § 3B1.2 for her lesser role in the offense, but that the prosecutor unfairly penalized her by
withholding such an adjustment [Id.]. Petitioner offers two examples from the advisory committee
notes to USSG § 3B1.1 to show that such an adjustment would have been appropriate: (1) a case
where someone’s only role in a very large drug smuggling operation is to offload part of a single
marijuana shipment, or (2) a case where an individual was recruited as a courier for a single
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smuggling transaction involving a small amount of drugs [Id.]. 3 Petitioner similarly maintains that
counsel should have sought a decrease in her sentence due to the minor or minimal role she played
in the offense and that counsel’s failure to do so amounted to ineffective assistance.
The Sixth Circuit has summarized the law on role-reduction sentence decreases:
Section § 3B1.2 of the Guidelines allows a district court to decrease a
defendant’s offense level by two levels if he “was a minor participant in
any criminal activity” and by up to four levels if he “was a minimal
participant.” The application note for the Guideline explains that “[t]his
section provides a range of adjustments for a defendant who plays a part
in committing the offense that makes him substantially less culpable
than the average participant.” U.S.S.G. § 3B1.2, cmt. 3(A). However,
“where a defendant plays a less significant but nevertheless ‘pivotal,’
‘vital,’ or ‘necessary’ role in the relevant criminal activity, it is not error
to deny him an adjustment as a minor participant.” [United States v.]
Cobb, [No. 96-5449],1997 WL 289701, at *2 [6th Cir. May 29, 1997]
(citations omitted).
United States v. Miller, 562 F. App’x 272, 305–06 (6th Cir. 2014). Further, “application note 3(A)
to section 3B1.2 requires the court to compare a defendant’s role in the conspiracy to that of the
average participant.” Id., 562 F. App’x at 306.
Here, as the United States points out in its response, Petitioner admitted to transporting
heroin and oxycodone from Michigan into the Eastern District of Tennessee and returning to
Michigan with the “cash from the drug trafficking activity” [see Doc. 4 (quoting Doc. 93 at ¶4(b))].
Petitioner acknowledged that she participated in drug transactions and that she was found with 128
grams of heroin (4.5 ounces of heroin converts to 128 grams of heroin) and with 359 oxycodone
pills, for a total marijuana equivalent of 200 kilograms. The drug quantity (200 kilograms of
3
The illustrations drawn from the commentary to USSG § 3B1.1 and offered to the Court to support
Petitioner’s argument that counsel should have pressed for a role-reduction adjustment are inapt to the facts
in her case. Petitioner’s role was not limited to a single drug shipment or a single transaction and, as to be
discussed later, the quantity of drugs for which she was held accountable (pursuant to her stipulation in the
plea agreement) was greater than at least three of her co-defendants.
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marijuana equivalent) attributed to Petitioner is greater than the quantity attributed to three of her
five co-defendants [see Doc. 65, Michael Fannon’s Plea Agreement at ¶4(h) (121 kilograms of
marijuana); Doc. 73, Mauricio Lyda’s Plea Agreement at ¶ 4(c) (30 kilograms of marijuana); and
Doc. 104, Joshua Metros’ Plea Agreement at ¶ 4(e) (119 kilograms of marijuana), Case No. 2:15CR-89]. As such, Petitioner is not substantially less culpable than the average participant in her
drug-trafficking conspiracy.
Based on the above law and analysis, the Court finds that Petitioner did not qualify for a
minor or minimal role-adjustment to her sentence and counsel’s failure to so argue did not amount
to ineffective assistance. See United States v. Linares, No. 2:10-CR-00110-RLJ, 2016 WL
3951725, at *5 (E.D. Tenn. July 19, 2016) (finding no ineffective assistance where counsel failed
to make a frivolous argument for a minor role reduction for which a petitioner was ineligible)
(citing to Ludwig v. United States, 162 F.3d 456, 459 (6th Cir. 1998) for its holding that “[c]ounsel
was not required to raise meritless arguments to avoid a charge of ineffective assistance of
counsel”).
B.
Failure to Give Points for Acceptance of Responsibility [Doc. 1 at 5].
Petitioner’s second claim, in its entirety is that “she timely accepted the plea offer and also
debriefed with the agents concerning her role in the conspiracy. She felt that she was denied her
due process (sic) for the failure of the court and the government to apply her acceptance of
responsibility” [Id.].
Petitioner’s claim is belied by record. In Petitioner’s PSR, her offense level was decreased
by two points and by one point for acceptance of responsibility for her offense [Doc. 134 at ¶¶ 2930, Case No. 2:16-CR-89]. The Court adopted the PSR without change [Doc. 179, Statement of
Reasons (sealed)]. Also, as noted earlier in this Opinion, the one-point decrease for acceptance of
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responsibility was the subject of a motion by the government, which the Court granted. The record
demonstrates that Petitioner received the maximum downward adjustment that she could have
received for acceptance of responsibility. See United States v. Nguyen, 212 F. Supp. 2d 1008, 1018
(N.D. Iowa 2002) (commenting that “section 3E1.1 of the United States Sentencing Guidelines
contemplates a maximum of a three point reduction for acceptance of responsibility”).
Petitioner’s claim that she was denied due process by virtue of the failure to grant her a
downward departure for acceptance of responsibility is contravened by the record, is factually
frivolous, and is completely lacking in merit. Counsel cannot be ineffective for failing to pursue
a claim which has no legitimate factual basis. See Mapes v. Coyle, 171 F.3d 408, 413 (6th Cir.
1999) (no constitutional deficiency in failing to raise groundless issues).
IV.
CONCLUSION
For the reasons discussed in this Memorandum Opinion, Petitioner’s § 2255 motion to
vacate [Doc. 1] will be DENIED and DISMISSED.
V.
CERTIFICATE OF APPEALABILITY
Under 28 U.S.C. § 2253(c)(2), the Court must determine whether a certificate of
appealability should be granted. A certificate should issue if a petitioner has demonstrated a
“substantial showing of a denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The Sixth
Circuit disapproves of the issuance of blanket denials of certificates of appealability. Murphy v.
Ohio, 263 F.3d 466 (6th Cir. 2001). The district court must “engage in a reasoned assessment of
each claim” to determine whether a certificate is warranted. Id. at 467. Each issue must be
considered under the standards set forth by the Supreme Court in Slack v. McDaniel, 529 U.S. 473
(2000).
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A certificate of appealability should issue if a petitioner has demonstrated a “substantial
showing of a denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). A petitioner whose claims
have been rejected on the merits satisfies the requirements of § 2253(c) by showing that jurists of
reason would find the assessment of the claims debatable or wrong. Slack, 529 U.S. at 484.
Having examined both of Petitioner’s claims under the Slack standard, the Court finds that
reasonable jurists could not find that the dismissal of such claims to be debatable or wrong.
Therefore, the Court will DENY issuance of a certificate of appealibility.
A separate judgment will enter.
IT IS SO ORDERED.
ENTER:
s/ Leon Jordan
United States District Judge
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