French v. United States of America

Filing 20

MEMORANDUM OPINION OF THE COURT. Signed by District Judge Todd J. Campbell on 11/8/2013. (xc:Pro se party by regular and certified mail.)(DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(eh)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

JAMIE FRENCH
v.
UNITED STATES OF AMERICA

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No. 3:13-00670
JUDGE CAMPBELL

MEMORANDUM
I. Introduction
Pending before the Court are a Motion/Memorandum To Vacate, Set Aside Or Correct
Sentence Of Person In Federal Custody (Docket No. 1) and supporting documents (Docket Nos.
2, 14, 18), filed by the Movant/Petitioner (hereinafter “Petitioner”), pro se. The Government has
filed a brief and exhibits in response (Docket Nos. 10, 19) to the Motion. For the reasons set
forth herein, the Court concludes that Petitioner’s Motion To Vacate is DENIED, and this action
is DISMISSED.
II. Procedural and Factual Background
In the underlying criminal case, the Petitioner was charged in a one-count Indictment,
along with four Co-Defendants, with participating in a conspiracy to possess with intent to
distribute and to distribute 100 kilograms or more of marijuana, in violation of 21 U.S.C. § 846.
(Docket No. 60 in Case No. 3:10-00117). Petitioner pled guilty to the charge without a plea
agreement. (Docket Nos. 208, 209, 248 in Case No. 3:10-00117).
Prior to sentencing, the Probation Office issued a Pre-Sentence Investigation Report
(Docket No. 233 in Case No. 3:10-00117) in which the Petitioner’s sentencing guideline range
was estimated to be 210 to 262 months of imprisonment, based on a Total Offense Level of 35

and Criminal History Category III. (Id., at ¶¶ 32, 41). The Total Offense Level was calculated as
follows: base offense level of 32; plus two points for possession of firearms; plus four points for
being an organizer or leader; minus three points for acceptance of responsibility. (Id., at ¶¶ 2432). Petitioner was assessed five criminal history points, but none of his prior convictions were
felony offenses. (Id., at ¶¶ 34-41).
At sentencing, trial counsel objected to the four-point enhancement for being an
organizer or leader, and argued that a variance was appropriate because the criminal history
category overstated Petitioner’s actual criminal history, and that the sentencing guideline range
reflected an unwarranted disparity with that of Petitioner’s Co-Defendants. (Transcript of
Sentencing Hearing, at 3, 34-35 (Docket No. 235 in Case No. 3:10-00117)). Trial counsel also
pointed out that the Petitioner cooperated on the night of his arrest and later made a proffer. (Id.,
at 35). The Government argued that the four-level enhancement was appropriate, and that the
variance was not warranted. As for Petitioner’s cooperation, the Government indicated that it
was not substantial:
On the night of his arrest, the defendant confessed. Wasn’t cooperation. He
confessed. It (sic) was caught red handed hauling marijuana out of the back of a
tractor-trailer and surrounded by officers. I don’t think at that time he provided
phone numbers of people. He provided some names. At no time do I think – and
Mr. Flanagan can correct me if I am wrong, but at no time do I think Mr. French
provided us with numbers or offered to call people or call Mr. Zavala, either one
of them, to do that. He did come in and give a proffer, but he was the last one to
come in. Everybody else had already come in. By the time he came in, we had
heard from everyone else, and there was very little that he could add.
(Id., at 35-36).
After hearing testimony offered by the Government, the Court determined that the fourlevel enhancement was appropriate. (Id., at 19-21). The Court also granted the Petitioner’s

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request for a variance based on an overstated criminal history, determining that Criminal History
Category II was more appropriate. (Id., at 39-48). Consequently, the Court determined that the
adjusted guideline sentencing range was 188 to 235 months of imprisonment, and sentenced the
Petitioner to 188 months. (Id.; Docket Nos. 230, 231 in Case No. 3:10-00117).
Petitioner appealed his sentence to the Sixth Circuit, and contended that unwarranted
disparity between his sentence and the sentences of the Co-Defendants rendered his sentence
substantively unreasonable. (Docket No. 241 in Case No. 3:10-00117). The appeals court
affirmed. (Id.)
III. Analysis
A. The Petitioner’s Claims
Petitioner contends that his conviction and sentence should be vacated because he
received the ineffective assistance of counsel.
B. The Section 2255 Remedy
Section 2255 provides federal prisoners with a statutory mechanism by which to seek to
have their sentence vacated, set aside or corrected.1 The statute does not provide a remedy,
however, for every error that may have been made in the proceedings leading to conviction. “‘To

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28 U.S.C. § 2255 states, in part:
A prisoner in custody under sentence of a court established by Act
of Congress 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, may move the court which imposed the sentence to vacate,
set aside or correct the sentence.
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warrant relief under section 2255, a petitioner must demonstrate the existence of an error of
constitutional magnitude which had a substantial and injurious effect or influence on the guilty
plea or the jury's verdict.’” Humphress v. United States, 398 F.3d 855, 858 (6th Cir.
2005)(quoting Griffin v. United States, 330 F.3d 733, 736 (6th Cir. 2003)).
An evidentiary hearing is not required if the record conclusively shows that the Petitioner
is not entitled to relief. 28 U.S.C. § 2255(b); Ray v. United States, 721 F.3d 758, 761 (6th Cir.
2013); Arredondo v. United States, 178 F.3d 778, 782 (6th Cir. 1999). No hearing is required “if
the petitioner’s allegations ‘cannot be accepted as true because they are contradicted by the
record, inherently incredible, or conclusions rather than statements of fact.’” Id. Where the same
judge considering the Section 2255 motion also presided over the underlying criminal
proceedings, the judge may rely on his own recollection of those proceedings. Blackledge v.
Allison, 431 U.S. 63, 97 S.Ct. 1621, 1629 n.4, 52 L.Ed.2d 136 (1977); Ray, 721 F.3d at 761.
The Court has reviewed the pleadings, briefs, transcripts, and records filed in Petitioner's
underlying criminal case, as well as the pleadings, briefs, transcripts, and records filed by the
parties in this case. The Court finds it unnecessary to hold an evidentiary hearing because these
records conclusively establish that Petitioner is not entitled to relief on the issues raised.
C. Ineffective Assistance of Counsel
Petitioner argues that he received the ineffective assistance of trial counsel in the
underlying criminal proceeding. In order to prevail on an ineffective assistance of counsel claim,
the burden is on the Petitioner to show: (1) trial counsel's performance was not within the range
of competence demanded of attorneys in criminal cases; and (2) actual prejudice resulted from
the deficient performance. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 2064, 80

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L.Ed.2d 674 (1984); Cullen v. Pinholster, 131 S.Ct. 1388, 1403 (2011); Campbell v. United
States, 364 F.3d 727, 730 (6th Cir. 2004).
“The benchmark for judging any claim of ineffectiveness must be whether counsel’s
conduct so undermined the proper functioning of the adversarial process that the trial cannot be
relied upon as having produced a just result.” Strickland, 104 S.Ct. at 2052; Ludwig v. United
States, 162 F.3d 456, 458 (6th Cir. 1998). In analyzing trial counsel's performance, the court
must "indulge a strong presumption that counsel's conduct falls within the wide range of
reasonable professional assistance." Strickland, 104 S.Ct. at 2065.
In order to establish prejudice, the petitioner must demonstrate “a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have been
different.” Id., at 2068.
Petitioner alleges that prior to trial, he indicated to trial counsel soon after his arrest that
he wanted to cooperate with officials in an attempt to secure a reduced sentence. At a later
time prior to trial, according to the Petitioner, trial counsel met with him to discuss a plea offer
extended by the Government. The proposed plea offer that has been filed by the Petitioner
includes the following terms: Petitioner is accountable for a total amount of 1,000 to 3,000
kilograms of marijuana; the recommended offense level is 34; Petitioner will be given the
opportunity to cooperate and the Government may move for a reduced sentence based on that
cooperation; and both parties waive certain appellate rights. (Docket No. 18, at 20-36). The offer
indicates that there is no agreement as to the Petitioner’s criminal history. (Id.)
Petitioner indicates that trial counsel advised him that the offer would not be in his best
interest, and that the sentence he would receive if he accepted the offer would be higher than all

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the Co-Defendants combined. Petitioner claims that trial counsel told him that something better
would come along if he rejected the offer. According to the Petitioner, he relied on trial
counsel’s advice and rejected the offer. Petitioner argues that trial counsel’s advice was
erroneous because the offer was in his best interest, and a better offer was not extended by the
Government. Petitioner claims that trial counsel subsequently told him that the plea offer was no
longer available. Petitioner argues that he was required to enter an “open plea” and that trial
counsel mistakenly estimated his sentencing guideline range to be 155-188 months.2
In Missouri v. Frye, ___ U.S. ___, 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012) and Lafler v.
Cooper, ___ U.S. ___, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012), the Supreme Court held that
plea negotiations are a critical stage of criminal proceedings during which a defendant is entitled
to the effective assistance of counsel. In Frye, the Court explained that trial counsel provides
ineffective assistance when he or she fails to communicate and explain a formal plea offer to his
or her client in a timely fashion. 132 S.Ct. at 1408.
In Lafler, the Court considered the appropriate remedy to be applied where trial counsel
conveyed a formal plea offer to his client, but erroneously advised the client to reject the offer
and proceed to trial because “the prosecution would be unable to establish his intent to murder
Mundy because she had been shot below the waist.” 132 S.Ct. at 1383. The Lafler Court
explained that in order to demonstrate prejudice where trial counsel’s erroneous advice leads a

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The Government has filed an affidavit of Petitioner’s trial counsel in which he states
that the Petitioner refused to completely cooperate with the Government because he said he
“would never become a ‘snitch.’” (Docket No. 10-1). According to trial counsel, the Petitioner
was not satisfied with the Government’s settlement offer, and exercised his right to an open plea
in order to reserve his appeal rights. (Id.) The Court assumes the truth of Petitioner’s allegations,
however, and does not rely on the affidavit in reaching its decision herein.
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defendant to reject a favorable plea offer, the defendant must show that “but for the ineffective
advice of counsel there is a reasonable probability that the plea offer would have been presented
to the court (i.e., that the defendant would have accepted the plea and the prosecution would not
have withdrawn it in light of intervening circumstances), that the court would have accepted its
terms, and that the conviction or sentence, or both, under the offer's terms would have been less
severe than under the judgment and sentence that in fact were imposed.” 132 S. Ct. at 1385.
Unlike Frye or Lafler, the Petitioner does not contend that trial counsel failed to timely
convey a plea offer to him, or that he erroneously advised him to go to trial. Instead, Petitioner
argues that trial counsel’s forecast about the potential sentence he would receive by rejecting the
plea offer and pursuing an open plea turned out to be wrong. That counsel’s forecast turned out
to be wrong, however, does not mean that his advice was incompetent based on the facts as
counsel knew them at the time. The Supreme Court has counseled against such a conclusion:
Judicial scrutiny of counsel's performance must be highly deferential. It is all too
tempting for a defendant to second-guess counsel's assistance after conviction or
adverse sentence, and it is all too easy for a court, examining counsel's defense
after it has proved unsuccessful, to conclude that a particular act or omission of
counsel was unreasonable.
Strickland, 104 S. Ct. at 2065. The Court has pointed out that this deference is especially
important in examining the plea negotiation process:
Plea bargains are the result of complex negotiations suffused with uncertainty,
and defense attorneys must make careful strategic choices in balancing
opportunities and risks. . . These considerations make strict adherence to the
Strickland standard all the more essential when reviewing the choices an attorney
made at the plea bargain stage. Failure to respect the latitude Strickland requires
can create at least two problems in the plea context. First, the potential for the
distortions and imbalance that can inhere in a hindsight perspective may become
all too real. The art of negotiation is at least as nuanced as the art of trial advocacy
and it presents questions farther removed from immediate judicial supervision.
There are, moreover, special difficulties in evaluating the basis for counsel's
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judgment: An attorney often has insights borne of past dealings with the same
prosecutor or court, and the record at the pretrial stage is never as full as it is after
a trial. In determining how searching and exacting their review must be, habeas
courts must respect their limited role in determining whether there was manifest
deficiency in light of information then available to counsel.
Premo v. Moore, ___ U.S. ___, 131 S. Ct. 733, 741, 178 L. Ed. 2d 649 (2011).
Under this standard, the Petitioner has not demonstrated that trial counsel’s alleged
advice was deficient. Counsel’s alleged concern about the disparity between the sentences of the
Co-Defendants and the possible sentence under the plea offer would have been a legitimate one.3
By pursuing an open plea, Petitioner was free to challenge the quantity of marijuana attributed to
him, the leadership role enhancement, and the firearms enhancement. He was also free to argue
for a variance from the applicable guideline sentencing range, and was able to retain his appeal
rights.
Even if the Court assumes that trial counsel’s advice was incompetent, however,
Petitioner has not demonstrated that he was prejudiced under Lafler because it is not clear that
his “conviction or sentence, or both, under the offer's terms would have been less severe than
under the judgment and sentence that in fact were imposed.” Petitioner argues that under the
plea offer, he would have been subject to an advisory guideline range of 188 to 235 months
based on a Total Offense Level of 34 and Criminal History Category III. Petitioner argues that
he would have received a variance from this range based on an overstated criminal history and
substantial assistance. Given the Government’s statements at sentencing about the Petitioner’s

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As the Court noted at sentencing, Defendant Gaskins received a 41-month sentence;
Defendant Gomez received a 27-month sentence, Defendant Ogg received a 46-month sentence,
and Defendant Maldonado received a 37 month sentence. (Docket No. 235, at 42-44, in Case No.
3:10-00117). All of these Defendants, however, received sentencing reductions due to
cooperation. (Id.)
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late offer of meager cooperation, it is not at all certain that the Government would have filed a
motion for substantial assistance, and even if it had done so, it is not at all certain that the
Government would have recommended anything other than a minor reduction in the sentencing
range – rather than the three-level reduction the Petitioner claims would have been applied. Even
if the guideline sentencing range had been reduced, however, it is not certain that the Petitioner
would have received a sentence at the bottom of that range. Finally, the plea offer would have
required the Petitioner to waive his right to appeal the sentence imposed by the Court, and the
Court notes that Petitioner availed himself of that right in this case. Under these circumstances,
the Petitioner has not demonstrated that the sentence under the plea offer would have been less
severe than the sentence he received after the open plea.
For these reasons, the Court concludes that the Petitioner has failed to demonstrate that
trial counsel was deficient, or that Petitioner was prejudiced by any deficiency. Accordingly,
Petitioner’s ineffective assistance of counsel claim is without merit.
IV. Conclusion
For the reasons set forth herein, the Court concludes that Petitioner is not entitled to relief
under 28 U.S.C. § 2255. Therefore, the Petitioner’s Motion Under § 2255 is denied, and this
action is dismissed.
Should the Petitioner give timely notice of an appeal from this Memorandum and
accompanying Order, such notice shall be treated as a application for a certificate of
appealability, 28 U.S.C. 2253(c), which will not issue because the Petitioner has failed to make a
substantial showing of the denial of a constitutional right. Castro v. United States, 310 F.3d 900
(6th Cir. 2002).

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It is so ORDERED.

______________________________
TODD J. CAMPBELL
UNITED STATES DISTRICT JUDGE

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