Weld v. USA
Filing
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MEMORANDUM OPINION - Signed by District Judge Thomas A Varlan on 6/04/2019. (copy mailed to Lacey Weld #46630-074, ALICEVILLE FCI, PO BOX 4000, ALICEVILLE, AL 35442) (KMK)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
LACEY WELD,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
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No:
3:16-CV-433-TAV
MEMORANDUM OPINION
This is a pro se prisoner’s motion to vacate, set aside, or correct a sentence under
28 U.S.C. § 2255 [No. 3:16-cv-433-TAV, Doc. 1]. Respondent responded in opposition
[Id., Doc. 5]. For the following reasons, the § 2255 motion [Id., Doc. 1] will be denied and
this action will be dismissed.
I.
BACKGROUND
From the summer of 2010 through early February 2013, Petitioner participated in a
large-scale methamphetamine-manufacturing conspiracy [No. 3:13-cr-84-TAV-CCS-4,
Doc. 76.]. Specifically, she purchased at least 150 grams of pseudoephedrine, an ingredient
of methamphetamine, and assisted with the hazardous process of “cooking”
methamphetamine [Id., Docs. 76, 202]. Petitioner told investigators that she was present
for at least a dozen “cooks” by codefendant Charles Craig Rhodes [Id., Doc. 231]. During
the conspiracy, Petitioner became pregnant and ultimately gave birth to a child who
exhibited signs of opiate and amphetamine exposure and drug-withdrawal symptoms [Id.].
In November 2013, Petitioner pleaded guilty, pursuant to a written plea agreement,
to conspiring to manufacture at least 50 grams of methamphetamine, in violation of 21
U.S.C. §§ 846 and 841(a)(1), (b)(1)(A) [Id., Docs. 76, 256]. She agreed she was subject to
a ten-year statutory mandatory minimum sentence and that the Court had discretion to
impose any sentence up to the statutory maximum of life imprisonment [Id.]. She also
acknowledged that her sentence would be “based upon the entire scope of [her] criminal
conduct, [her] criminal history, and pursuant to other factors and guidelines as set forth in
the Sentencing Guidelines and . . . 18 U.S.C. § 3553” [Id.]. As part of her plea agreement,
Petitioner also waived her right to appeal, reserving only the right to appeal a sentence
above the guidelines range “determined by” the Court [Id., Doc. 76].
Based on the drug quantity stipulated as part of the guilty plea, the Presentence
Investigative Report (PSR) listed Petitioner’s base offense level as 32 [Id., Doc. 112]. The
PSR applied a three-level enhancement under U.S.S.G. § 2D1.1(b)(13)(C)(ii)(I), on the
basis that Petitioner’s offense involved the manufacture of methamphetamine and created
a substantial risk of harm to human life [Id.]. Specifically, the probation officer referred
to evidence that Petitioner had manufactured—and smoked—methamphetamine while in
the late stages of pregnancy [Id.]. A three-level reduction for acceptance of responsibility
yielded a total offense level of 32 and, in light of Petitioner’s criminal history category of
IV, a guidelines range of 168 to 210 months’ imprisonment [Id.].
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Petitioner objected to the three-level enhancement, claiming that her proximity to
an operational methamphetamine laboratory while pregnant and her methamphetamine use
were “irrelevant” to a determination of whether the offense of conviction created a
substantial risk of harm to human life [Id., Doc. 125]. Petitioner also argued that this
enhancement was inappropriate because an unborn fetus is not specifically contemplated
in § 2D1.1(b)(13) as constituting “human life” [Id.]. Subsequently, the United States
requested a six-level enhancement under U.S.S.G. § 2D1.1(b)(13)(D)—regarding
substantial risk of harm to the life of a minor—instead of the three-level enhancement
objected to by Petitioner—regarding human life generally [Id., Doc. 172]. In response to
Petitioner’s suggestion that the enhancement was inapplicable if the risk of harm related to
an unborn fetus, the United States argued that Petitioner not only created a substantial risk
of harm to her child in utero, but also created a substantial risk of harm to the child after
birth, as evidenced by the severe effects of drug dependence that he displayed once born
[Id.].
The PSR was revised to contain the six-level § 2D1.1(b)(13)(D) enhancement
instead of the three-level § 2D1.1(b)(13)(C)(ii)(I) enhancement [Id., Doc. 202]. The
corresponding total offense level was thus 35 and yielded an advisory guidelines range of
235 to 293 months’ imprisonment [Id.]. Petitioner again objected to any “risk of harm”
enhancement [Id., Docs. 208, 214, 217].
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During the sentencing hearing, the United States presented testimony from two
witnesses and, among other evidence, a 40-minute video recording from a
methamphetamine laboratory on May 10, 2012 [Id., Doc. 231]. The video depicted two
methamphetamine “cooks” occurring simultaneously; Petitioner was present and actively
participating in the process, although a codefendant appeared to be the primary person
manufacturing methamphetamine on that date [Id.]. In the video, Petitioner can be seen
chopping and grinding pseudoephedrine pills, stirring various components, and smoking
the finished methamphetamine [Id.]. During the cooking process Petitioner held her shirt
over her nose numerous times, and the video also depicted codefendants burning trash and
byproducts from the methamphetamine manufacturing process [Id.].
Petitioner was visibly pregnant in the video recording—she gave birth twenty-six
days after the video was taken [Id.].
To explain the significance of the activities shown on the video, the United States
called Tennessee Bureau of Investigation Special Agent Matthew Thompson; for the
previous fourteen years, he had obtained annual certifications from the Tennessee
Methamphetamine Task Force qualifying him to safely dismantle methamphetamine
laboratories and supervise others doing so [Id.]. Agent Thompson estimated that, between
his own investigations and assisting others, he had been present in approximately 400 to
500 methamphetamine laboratories. He later explained that, because of the inherently
hazardous health conditions posed by methamphetamine laboratories, investigating agents
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wear full-body chemical suits, gloves, boots, and self-contained breathing apparatuses
when entering such laboratories [Id.].
Agent Thompson testified that the type of manufacturing process depicted in the
video was the “anhydrous ammonia method” or “ephedrine reduction method” [Id.].
Specifically, the coconspirators combined muriatic acid, acetone, anhydrous ammonia,
lithium, and hydrogen chloride, then added a heat source, “basically boiling a flammable
liquid” and thereby creating a “huge [risk of] fire and explosion” [Id.]. Agent Thompson
explained that an explosion could occur if any water—or even human sweat—touched the
anhydrous ammonia [Id.]. Moreover, he testified that anhydrous ammonia’s strong odors
can cause dizziness and respiratory problems, and holding fabric over one’s nose would
not provide protection from its odors and vapors [Id.]. Additionally, the coconspirators
burned various items associated with the methamphetamine manufacturing process, which
he stated could have caused an explosion or further disseminated toxic fumes [Id.]. Agent
Thompson also noted that the methamphetamine laboratory shown in the video was in a
building just fifteen feet away from railroad tracks, so close that the building shook
whenever a train passed, and, in his opinion, increasing the risk of explosion and the
possibility of harm to anyone on a passing train [Id.].
The other witness for the United States—Lynnie Vaughn, a caseworker with the
Tennessee Department of Children’s Services—testified that Petitioner gave birth to a
drug-dependent son on June 5, 2012, less than one month after the cook depicted in the
video [Id.].
At the time of birth, Petitioner tested positive for oxycodone and
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amphetamines; three days later, she tested positive for methamphetamine, oxycodone,
amphetamine, benzodiazepines, opiates, and marijuana [Id.]. The child’s meconium tested
positive for methamphetamine, and he had to remain in the neonatal intensive-care unit for
nearly seven weeks because of medical complications stemming from drug withdrawal
[Id.]. Petitioner herself admitted the severity of her son’s drug dependence, acknowledging
that “he could have died” because of her actions [Id.].
Based on Vaughn’s personal observations of the child in the hospital and her review
of his medical records, she testified that Petitioner’s son experienced withdrawal symptoms
including uncontrollable whole-body tremors [Id.]. On most days, the baby was “jittery”
when awake [Id.]. He vomited when attempting to feed [Id.]. In the end, he received
morphine for thirty-nine consecutive days to help control his withdrawal symptoms; earlier
attempts to wean him off the morphine were unsuccessful [Id.].
He also received
phenobarbital for twenty-four days [Id.].
Medical professionals often use Finnegan scores to quantity the symptoms of drug
dependence in infants; the higher the score, the more significant the withdrawal symptoms
the child is experiencing [Id.]. Vaughn testified that she had worked on approximately 50
cases involving drug-dependent infants and that, until this case, the worst Finnegan score
she had ever seen was 12; Petitioner’s son had Finnegan scores of 13, 14, 15, and even 16
[Id.]. Based on the extent of drug dependence experienced by Petitioner’s son, the state
courts ultimately found that Petitioner had committed “severe abuse” against her son [Id.].
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After hearing the evidence and the parties’ arguments, as well as Petitioner’s
allocution, the Court applied the six-level enhancement in USSG 2D1.1(b)(14)(D), which
applies when “the offense involved the manufacture of amphetamine or methamphetamine
and the offense created a substantial risk of harm to the life of a minor” [Id.]. The Court
explicitly considered the factors listed in U.S.S.G. § 2D1.1, comment. (n.18(B)), and found
that three of those factors weighed in favor of applying the enhancement, with the final
factor being neutral [Id.]. Noting that “neither party dispute[d] . . . that [Petitioner’s] child
was a minor after birth,” the Court found that Petitioner’s “offense conduct . . . not only
created a substantial risk of harm, but did, in fact, harm the life of that minor in three
distinct ways” [Id.].
First, Petitioner’s participation in the manufacture of
methamphetamine on May 10, 2012, while eight months pregnant, created a substantial
risk of harm “to the minor child produced by the pregnancy in that there was exposure to
dangerous chemicals and fumes as well as the potential at that time for . . . [an] explosion”
[Id.]. The presence of fumes was evident on the video because Petitioner covered her nose
with her shirt, and Agent Thompson had testified about the risk of explosion inherent in
the method of manufacturing methamphetamine depicted in the video. Second, Petitioner’s
use of methamphetamine on May 10, 2012, as shown on the video, created a substantial
risk of harm to the life of her child, as manifested after the child’s birth less than one month
later [Id.]. Third, Petitioner’s use of methamphetamine at other times during pregnancy
also created a substantial risk of harm to the life of her child, and that risk similarly
manifested after the child’s birth [Id.]. As for Petitioner’s claim that her methamphetamine
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use was not relevant conduct, the Court found that she sampled the finished product as part
of the manufacturing process on May 10, 2012, and that her use of methamphetamine at
other times was one of the purposes of the conspiracy to manufacture methamphetamine
[Id.]. The Court thus overruled Petitioner’s objection to the revised presentence report and
found that the applicable guidelines range was 235 to 293 months’ imprisonment [Id.].
The United States filed a motion for a three-level downward departure under
U.S.S.G. § 5K1.1 based on Petitioner’s substantial assistance, recommending a sentence
as low as 168 months’ imprisonment [Id., Doc. 207]. Petitioner had previously urged the
Court to impose a sentence of no more than 60 months’ imprisonment, but conceded that
she remained subject to a ten-year mandatory minimum [Id., Docs. 161, 231]. After
considering the 18 U.S.C. § 3553(a) factors, and based on the Court’s own evaluation of
the extent of Petitioner’s cooperation, the Court departed downward by four levels and
imposed a sentence of 151 months’ imprisonment, well below the guidelines range it had
deemed applicable [Id., Docs. 233, 226].
Petitioner appealed and disputed whether the six-level enhancement was
constitutional as applied to her; in her view, the enhancement “imping[ed] on her
fundamental right to bear children” and constituted “gender-based discrimination.” Brief
of Appellant at 24–38, United States v. Weld, 2014 WL 6851368 (6th Cir. 2015) (No. 145894). The United States moved to dismiss the appeal as barred by the appeal-waiver
provision in the plea agreement, and, after full briefing, the Sixth Circuit granted that
motion and dismissed the appeal. United States v. Weld, 619 Fed. App’x 512, 513 (6th Cir.
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2015). Petitioner unsuccessfully sought further review; the Supreme Court denied her
petition for certiorari on April 19, 2016. (No. 3:13-cr-84-TAC-CCS-4, Doc. 269).
Petitioner has now filed a timely motion pursuant to 28 U.S.C. § 2255.
II.
ANALYSIS
A prisoner in federal custody may file a motion under 28 U.S.C. § 2255, “claiming
the right to be released upon the ground that the sentence was imposed in violation of the
Constitution or laws of the United States, or that the court was without jurisdiction to
impose such sentence, or that the sentence was in excess of the maximum authorized by
law, or is otherwise subject to collateral attack.” 28 U.S.C. § 2255. However, a defendant
may waive any right, even a constitutional right, if she does so knowingly and voluntarily,
and a waiver provision in a plea agreement is enforceable. In re Acosta, 480 F.3d 421, 422
(6th Cir. 2007); accord Davila v. United States, 258 F.3d 448, 450–52 (6th Cir. 2001);
Watson v. United States, 165 F.3d 486, 489 (6th Cir. 1999). Petitioner, in her plea
agreement, explicitly waived the right to file a § 2255 motion, except for claims of
ineffective assistance of counsel or prosecutorial misconduct [No. 3:13-cr-84-TAV-CCS4, Doc. 76]. Moreover, this waiver is enforceable: the Sixth Circuit stated that even if the
guideline range in this case was calculated incorrectly, that would be insufficient grounds
to void the waiver. Weld, 619 Fed. App’x at 513.
Petitioner has asserted three grounds for relief: two based on ineffective assistance
of counsel and one alleging a due process violation. The Court will address each argument
in turn.
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A.
Ineffective Assistance of Counsel
1.
Failure by Counsel to Raise Constitutional Issues with
Petitioner’s Sentencing Calculation
Petitioner argues that her counsel was ineffective during her sentencing hearing for
not arguing that a sentencing enhancement used by the Court to calculate her guideline
range violated her rights under the due process clause of the Fourteenth Amendment [No.
3:16-cv-433-TAV, Doc. 1]. However, Petitioner does not allege or set forth any facts from
which the Court could plausibly infer that counsel was ineffective.
A petitioner alleging ineffective assistance of counsel must satisfy both prongs of
the test set fort in Strickland v. Washington, 466 U.S. 668, 687 (1987). First, Petitioner
must establish that her counsel’s performance was deficient— making errors so serious as
to violate the Sixth Amendment— and second, that her counsel’s performance prejudiced
her defense, depriving Petitioner of a fair trial. Id. To establish that her counsel’s
performance was deficient, Petitioner must overcome the “highly deferential” standard of
objective reasonableness, which “includes a strong presumption that counsel’s conduct
falls within the wide range of reasonable professional assistance.” Mason v. Michell, 320
F.3d 604, 616–17 (6th Cir. 2003).
Petitioner fails this first prong because she cannot demonstrate that her counsel’s
performance was deficient through his failure to raise novel issues of constitutional law.
Counsel cannot generally be considered ineffective because they do not argue innovative
interpretations of the law. Thompson v. Warden, Belmont Correctional Institution, 598
F.3d 281, 288 (6th Cir. 2010) (“[C]ounsel is not ineffective for failing to predict the
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development of the law”); Alcorn v. Smith, 781 F.2d 58, 62 (6th Cir. 1986)
(“[N]onegregious errors such as failure to perceive or anticipate a change in the law . . .
generally cannot be considered ineffective assistance of counsel”).
The argument that Petitioner faults her counsel for not making—that the
§ 2D1.1(b)(13)(D) enhancement is unconstitutional as applied to pregnant women—has
not been addressed by any circuit court, much less the Sixth Circuit. Weld, 619 Fed. App’x
at 513 (“[Petitioner] concedes that no court of appeals has held that § 2D1.1(b)(13)(D) is
unconstitutional as applied to a pregnant woman. She also concedes that her constitutional
claims are matters of first impression for our court . . . That means that any error here was
not plain.”).
Any such argument that Petitioner’s counsel could have raised would
therefore have been of first impression and thus necessarily novel. Failing to do so does
not demonstrate that counsel conducted himself outside “the wide range of reasonable
professional assistance.” Strickland, 466 U.S. at 689.
Moreover, the Court observes that Petitioner’s counsel did object numerous times,
both in writing and at the sentencing hearing, to the application of § 2D1.1(b)(13)(D),
which further indicates that counsel’s advocacy fell within the permissible range of
reasonable professional assistance [No. 3:13-cr-84-TAC-CCS-4, Docs. 125, 190, 208,
231].
Because Petitioner fails to establish that her counsel’s performance was deficient,
her first ground for relief will be denied.
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2.
Failure by Counsel to Argue Sentence Disparity Between
Petitioner and Her Codefendants
Petitioner’s counsel was likewise not ineffective for failing to argue that an
inappropriate disparity existed between her sentence and that of her codefendants. 18
U.S.C. § 3553(a)(6) instructs court to consider “the need to avoid unwarranted sentence
disparities among defendants with similar records who have been found guilty of similar
conduct.” However, “[t]he objective of this statute is not to eliminate sentence disparities
between defendants of the same case who have different criminal records; rather, the
objective is to eliminate unwarranted disparities nationwide.” United States v. LaSalle,
948 F.2d, 215, 218 (6th Cir. 1991) (internal citations and quotations omitted). Although
sentencing courts may consider the sentences of codefendants, this is not required by
statute and is within the court’s discretion. United States v. Simmons, 501 F.3d 620, 624
(6th Cir. 2007).
As an initial matter, Petitioner has not presented any evidence to demonstrate that
her sentence differed substantially from those given to similarly-situated defendants
nationwide or even as compared to her codefendants.
Moreover, this Court varied
downward in Petitioner’s case, sentencing her well below the guideline range it determined
appropriate. See United States v. Shrake, 515 F.3d 743, 748 (7th Cir. 2008) (stating that it
is “pointless” for a defendant who is sentenced within—and in this case, below—the
guideline range to allege a sentencing disparity).
Further, and as stated above, defense counsel objected several times to this Court’s
use of § 2D1.1(b)(13)(D) [No. 3:13-cr-84-TAC-CCS-4, Docs. 125, 190, 208, 231].
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Although he did not raise this particular argument, he did assert several others. Although
counsel was ultimately unsuccessful in his objections to Petitioner’s guideline range, his
failure to raise a sentencing disparity argument does not make his representation
constitutionally inadequate. Counsel’s advocacy did not fall and below the standard of
objective reasonableness.
B.
Due Process and Ex Post Facto Violations
Petitioner finally alleges due process and ex post facto violations for the “imposition
of criminal sanctions and enhancement for a non-existent crime”—here, her use of
methamphetamines [Case No. 3:16-cv-433, Doc. 1]. This argument must fail.
Petitioner pleaded guilty to conspiracy to manufacture fifty grams or more of
methamphetamine, a schedule II controlled substance [No. 3:13-cr-84-TAC-CCS-4, Doc.
88]. Under the relevant statutes, the Court was authorized to impose a sentence anywhere
from ten years’ to life imprisonment. See 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A).
When determining an appropriate sentence, the Court was able to, and did, consider
multiple factors, including her guideline range and the § 3553(a) factors. See United States
v. Graham-Wright, 715 F.3d 598, 601 (6th Cir. 2013) (“When all is said and done, a
sentencing judge’s inquiry is broad in scope, and it is largely unlimited either as to the kind
of information he may consider, or the source from which it may come”); Apprendi v. New
Jersey, 530 U.S. 466, 481 (2000) (noting that judges may “take[] into consideration various
factors relating both to offense and offender” when imposing sentences within statutory
limits).
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Further, Petitioner had notice that the Court would do this. Her signed plea
agreement states “The defendant acknowledges that the sentencing determination will be
based upon the entire scope of the defendant’s criminal conduct, the defendant’s criminal
history, and pursuant to other factors and guidelines as set forth in the Sentencing
Guidelines and the factors set forth in 18 U.S.C. § 3553” [No. 3:13-cr-84-TAC-CCS-4,
Doc. 76] (emphasis added). In its discussion of Petitioner’s guideline range, the Court
noted that Petitioner had sampled finished methamphetamine product as part of the
manufacturing process on May 10, 2012, and that her use of methamphetamine at other
times was one of the purposes her participation in the conspiracy [Id., Doc. 233]. The
Court determined that this was relevant conduct that could be considered when determining
the applicability of § 2D1.1(b)(13)(D) [Id.].
The Court therefore did not, as Petitioner alleges, impose criminal sanctions based
on her use of methamphetamine. Rather, it considered her use as relevant conduct for the
purpose of determining the appropriate guideline range, and as part of her history and
characteristics, which must be considered under § 3553(a). In sum, the Court did not
violate Petitioner’s due-process rights by considering her past drug use in fashioning a
sentence that was sufficient but not greater than necessary to comply with the purposes
discussed in 18 U.S.C. § 3553.
Finally, there is no ex post facto violation in this case. The Ex Post Facto Clause is
violated where a defendant is sentenced under a higher guideline range than that which
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would have been calculated at the time of the offense. Peugh v. United States, 569 U.S.
530, 539 (2013). Petitioner has not alleged this situation, nor was it the case here.
III.
CONCLUSION
The Court finds that Petitioner is not entitled to relief pursuant to 28 U.S.C. § 2255,
and her motion to vacate, set aside or correct sentence [No. 3:16-cv-433-TAV, Doc. 1] will
be DENIED and this action will be DISMISSED. The Court will CERTIFY that any
appeal from this action would not be taken in good faith and would be totally frivolous.
Therefore, this Court will DENY Petitioner leave to proceed in forma pauperis on appeal.
See Fed. R. App. P. 24. Moreover, because Petitioner has not made a substantial showing
of the denial of a constitutional right and jurists of reason would not dispute the above
conclusions, Slack v. McDaniel, 529 U.S. 473, 484 (2000), a certificate of appealability
SHALL NOT ISSUE. A Judgment will enter DENYING the Motion [No. 3:16-cv-433TAV, Doc. 1].
ORDER ACCORDINGLY.
s/ Thomas A. Varlan
UNITED STATES DISTRICT JUDGE
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