Patterson v. USA

Filing 17

MEMORANDUM OPINION AND ORDER: The court denies the motion to vacate sentence under 28 U.S.C. § 2255, and dismisses with prejudice this action. The court denies a certificate of appealability. (Ordered by Judge Sam A Lindsay on 5/31/2017) (sss)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
EVAN PATTERSON,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

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Civil No. 3:16-CV-2395-L
(Criminal No. 3:14-CR-378-L-01)

MEMORANDUM OPINION AND ORDER
On August 17, 2016, Petitioner filed a motion to vacate sentence under 28 U.S.C. § 2255.
The Government filed a response in opposition, and Petitioner has filed a reply. Upon review of
the relevant pleadings, record, and applicable law, and for the reasons that follow, the court denies
the section 2255 motion.
I.

Background
Petitioner pled guilty to conspiring to traffic in counterfeit goods and was sentenced well

below the calculated guidelines range to 24 months’ imprisonment and a two-year term of
supervised release, and was ordered to pay restitution in the amount of $27,670.07. Crim. Doc.
48. He did not file a direct appeal but, subsequently, filed this timely section 2255 motion asserting
ineffective assistance of counsel at sentencing. Doc. 1. Specifically, Petitioner argues the
infringement value (loss amount) erroneously included a double count of over $400,000 worth of
counterfeit goods and counsel failed to consult with Petitioner about the infringement amount and
object to it at sentencing. Doc. 1 at 6, 14. Petitioner also raises other challenges to the calculation
of the infringement value, which he alleges counsel failed to present to the Court at sentencing –
namely the use of market price to appraise the counterfeit items and the inclusion of “order
inquiries” in the value. Doc. 1 at 15-20.

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The Government acknowledges that: (1) the infringement value was inadvertently double
counted, and (2) the correct infringement value should have been approximately $1.3 to $1.4
million (instead of $1.7 million), which would have resulted in a guidelines imprisonment range
of 46 to 57 months, rather than 57-60 months. Doc. 12 at 5, 13-15. The Government, nevertheless
opposes Petitioner’s ineffective assistance claim, arguing that defense counsel was not
constitutionally deficient for failing to discover the error and that Petitioner cannot show prejudice.
Doc. 12 at 5-6. The Government also suggests an evidentiary hearing may be necessary to resolve
these issues.

The Government, however, opposes Petitioner’s additional challenges to the

calculated infringement value that he contends would have resulted in an even lower guidelines
imprisonment range of 37 to 46 months. Doc. 12 at 14; Doc. 1 at 23.
Petitioner replies that as a result of the guidelines calculation error, he suffered “inherent
harm” which was not “inconsequential,” and that his “Strickland prejudice is neither illusory nor
speculative, even if difficult to quantify.” Doc. 16 at 1, 7. Petitioner avers, “Only Judge Lindsay
knows what effect the false start had on the movant’s en[dg]ame.” Doc. 16 at 7; see also Doc. 1
at 25 (“This Court is the only one who can know whether Mr. Patterson suffered prejudice, because
it is the one that decided on a sentence and granted a downward variance from what it erroneously
was led to believe was a 57-60 month guidelines range.”). Agreeing with this last contention and
for the sake of judicial economy, the court vacates the referral of the case to the magistrate judge
made pursuant to Special Order 3 and addresses the section 2255 motion, which is now ripe for
review.
II.

Analysis
After conviction and exhaustion or waiver of the right to direct appeal, the court presumes

that a petitioner stands fairly and finally convicted. See United States v. Cervantes, 132 F.3d 1106,

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1109 (5th Cir. 1998) (citing United States v. Shaid, 937 F.2d 228, 231-32 (5th Cir. 1991) (en
banc)). “Relief under 28 U.S.C. § 2255 is reserved for transgressions of constitutional rights and
for a narrow range of injuries that could not have been raised on direct appeal and would, if
condoned, result in a complete miscarriage of justice.” United States v. Vaughn, 955 F.2d 367,
368 (5th Cir. 1992). Under section 2255, a petitioner can collaterally challenge his conviction
“only on issues of constitutional or jurisdictional magnitude.” United States v. Willis, 273 F.3d
592, 595 (5th Cir. 2001).
Petitioner contends that counsel rendered ineffective assistance at sentencing. To establish
ineffective assistance of counsel, a petitioner must show that counsel’s performance was deficient
and that the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S.
668, 687-688 (1984). Failure to establish either deficient performance or prejudice defeats the
claim. Id. at 697. Indeed, if a determination as to the prejudice prong “is easier” and disposes of
an ineffectiveness claim, then “that course should be followed.” Id. at 698.
To prove prejudice, a petitioner “must show that there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at
694. In the context of ineffective assistance of counsel at sentencing, a petitioner must demonstrate
that the sentence was increased by the deficient performance of defense counsel. Glover v. United
States, 531 U.S. 198, 200, 203-204 (2001); see also United States v. Grammas, 376 F.3d 433, 437438 (5th Cir. 2004). As noted in Glover, “any amount of actual jail time has Sixth Amendment
significance.” 531 U.S. at 203.
Here, Petitioner cannot establish that counsel’s alleged failure to object at sentencing
prejudiced him. Even considering a revised guidelines range of 46-57 months, or even the lower
range of 37-46 months that Petitioner argues would have resulted if all of his objections were

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lodged and sustained, the undersigned would not have reduced Petitioner’s sentence below 24
months, and definitely would not have considered probation. At sentencing, the court explained
in detail its reasons for granting the significant downward variance and imposing a 24-month
sentence as follows:
The Court is tasked with coming up with a sentence that is fair, just, and
reasonable in this case. The Court also takes into account paragraph (a)(1) of
Section 3553, (a)(1) allows the Court to consider the history and characteristics of
the Defendant. There are a number of things in that regard. As the record reflects,
the type of conduct in which Mr. Patterson engaged went on for a number of years.
In fact, it predates the time of the indictment. I think the indictment goes from
January 2010 to December of 2013, approximately four years.
As the Court stated earlier, there is an indication that Mr. Patterson was
engaged in this type of conduct prior to the time of the indictment. In fact, there
was a cease-and-desist letter. After that letter was issued, Mr. Patterson closed
down the business.
There are other things that the Court can look at. As the Court stated earlier,
the 25 character letters. The Court mentioned that earlier. There is also a binder that
chronicles Mr. Patterson’s life. There are a number of things he has done right. He
has acknowledged that he has made a mistake. Of course, when someone comes
before me, I expect at a minimum that he or she acknowledge a mistake has been
made because as far as I am concerned, when a person acknowledges until a person
acknowledges that a mistake has been made, there really can be no road to recovery
or any path of that person becoming a productive citizen. If a person is in denial,
there is little hope that a person is going to have respect for our laws.
The Court does note the fact that Mr. Patterson started a business while he
-- while this case was pending. In other words, he realized he had done wrong and
started a business, Mr. Sugar Rush. There are a number of reviews from customers
concerning that business. The Court has also noticed Mr. Patterson’s appearance
here in the courtroom. He appears to be genuinely sorry and expressed remorse for
what he has done wrong, and to me that all falls into the history and characteristics
of the Defendant.
Although, Mr. Patterson did not say it, but Mr. Weatherspoon did when the
Court inquired about Mr. Kelvin Williams.
Mr. Weatherspoon readily
acknowledged that Mr. Williams and Mr. Patterson were equally responsible. There
was no attempt to hide Mr. Patterson’s involvement in the illegal conduct. The
Court also notes the fact when people are young, sometimes they get off on the
wrong track, and they make stupid decisions or silly mistakes that unfortunately
will haunt them for the rest of their li[ves]. Whichever way the Court does, whether
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it is a nonguidelines sentence or probation or guidelines sentence, the fact remains
that Mr. Patterson will be a convicted felon and that is something he has to live
with.
Frankly speaking, he also has to live with the fact that Mr. Williams
committed suicide. Those are facts. I cannot unring the bell. The Court also brought
up another point in discussing this type of case. This type of case, when you
consider the loss amount and also cases involving drug amounts and cases that
involve a lot add-ons and specifically child pornography cases, [you] often end up
with a sentence that exceeds the statutory maximum, and the guideline range in this
case exceeds the statutory maximum to an extent.
As the Court stated earlier, it recognized that this is or was a serious offense,
but the Court also is concerned that the loss amount seems to be driving the
guidelines, and while not minimizing what has taken place, the Court notes there is
slightly over $27,000 in restitution, that is, [for] those who claim a monetary loss.
As the Court is also aware, as Mr. Stokes pointed out, when you have this
type of illegal conduct, the value of the products, good will is lost and, frankly
speaking, members of the public may be less inclined to trust those products, or
they may question whether those products are the real thing, whether they are
genuine or not.
The Court has also considered the factors of deterrence, seriousness of the
offense, just punishment, protection of the public, and when the Court considers all
of those factors, the Court does not believe that a guidelines sentence is necessary
in this case. The Court does not believe that a guidelines sentence under the
circumstances would be fair, just, and reasonable.
As the Court stated earlier, the guideline range is 57 to 60 months. I
mentioned earlier that Mr. Morris—excuse me—Mr. Patterson has shown remorse,
and the Court has been doing this for about 17 and a half years, and the Court has
become pretty adept I would say in deciding whether someone is truly remorseful
for his or her wrongdoing.
I think Mr. Patterson is remorseful for what has taken place. It took him a
while to learn it. I do not think he will be engaged in this type of conduct in the
future. He seems to have a good support system. I think that his sister and father
and others close to him will let him know if he starts going astray with the law. The
sentence that the Court intends to impose adequately addresses all of those factors
under paragraph (a)(2) of Section 3553, that is, [the] sentence that the Court is going
to impose will protect the public, serve as an adequate deterrent, reflect the
seriousness of the offense, provide just punishment. And I will say this now. I know
it will disappoint the family, but I do not think that a sentence of probation is
appropriate under the circumstances, and reason I say that primarily is because the
length of time that this took place.
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If we are talking about a few months or six months or perhaps even a year,
probation may be appropriate. But here we had two situations whereby Mr.
Patterson was put on notice after a cease-and-desist letter. The business closed
down, and he stopped, then he started again. So as far as the Court is concerned,
that does not bode well for him, and that does not justify a sentence of probation.
While it does not justify a sentence of probation, the Court believes that a
nonguidelines sentence in this case is fair, just, and reasonable for the reasons
stated. The judgment of the Court is that Mr. Evan Patterson is hereby committed
to the custody of the Federal Bureau of Prisons for a term of 24 months.
See Crim. Doc. 60 at 34-39. As the Court stated then, and concludes again now after consideration
of all of those factors, a sentence of 24 months’ imprisonment is fair, just and reasonable under
the facts and circumstances of this case, even if the appropriate guidelines imprisonment range is
as low as 37 to 46 months.
Based on the foregoing, Petitioner cannot establish a reasonable probability that, if his
attorney had successfully objected on the grounds he raises in his section 2255, he would have
received a lesser sentence and, thus, counsel’s performance at sentencing prejudiced him.
Accordingly, Petitioner’s ineffective assistance of counsel claim fails.
III.

Conclusion
For the foregoing reasons, the court denies the motion to vacate sentence under 28 U.S.C.

§ 2255, and dismisses with prejudice this action.
Considering the record in this case and pursuant to Federal Rule of Appellate Procedure
22(b), Rule 11(a) of the Rules Governing Section 2255 Proceedings in the United States District
Court, and 28 U.S.C. § 2253(c), the court denies a certificate of appealability. The court accepts
and incorporates by reference the above ruling in support of its finding that Petitioner has failed to
show: (1) that reasonable jurists would find this court’s “assessment of the constitutional claims
debatable or wrong,” or (2) that reasonable jurists would find “it debatable whether the petition

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states a valid claim of the denial of a constitutional right” and “debatable whether [this Court] was
correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).
It is so ordered this 31st day of May, 2017.

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Sam A. Lindsay
United States District Judge

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