Kinsey v. USA
Filing
10
Memorandum Opinion and Order... The court ORDERS that all relief sought by movant by the motion he filed on October 6, 2014, to vacate, set aside, or correct sentence by a person in federal custody, be, and is hereby, denied. Pursuant to Rule 22 (b) of the Federal Rules of Appellate Procedure, Rule 11(a) of the Rules Governing Section 2255 Proceedings for the United States District Courts, and 28 u.s.c. § 2253(c) (2), for the reasons discussed herein, the court further ORDERS that a certificate of appealability be, and is hereby, denied, as movant has not made a substantial showing of the denial of a constitutional right. (Ordered by Judge John McBryde on 1/21/2015) (wxc)
-----u.~::iils
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rTvC:l ciiulfi___ _
NORTHEKN DIS l RlCT Of TEXAS
FILED
CO~T ~
IN THE UNITED STATES DISTR CT
NORTHERN DISTRICT OF
XAS
FORT WORTH DIVISIO
CHRISTOPHER RAY KINSEY,
By ___~--------Dt>pury
§
§
Movant,
'JAN 2 I 2015
---CLERK, U.S. DISTRICT COURT
--'----
§
§
vs.
UNITED STATES OF AMERICA,
Respondent.
§
§
§
§
NO. 4:14-CV-813-A
(NO. 4:11-CR-193-A)
§
MEMORANDUM OPINION
and
ORDER
Before the court for consideration and decision is the
motion filed by movant, Christopher Ray Kinsey, to vacate, set
aside, or correct sentence by a person in federal custody.
After
having considered such motion, the government's response thereto,
the document movant filed November 18, 2014, titled
~supplement
to Motion to Vacate, Set Aside or Correct Sentence Filed by a
Person in Custody Pursuant to 28 U.S.C.
§
2255," pertinent parts
of the record in Criminal Case No. 4:11-CR-193-A, and relevant
legal authorities, the court has concluded that such motion
should be denied.
I.
Background
On January 20, 2012, movant pleaded guilty pursuant to a
plea agreement to the offenses of conspiracy to possess with
intent to distribute a controlled substance, in violation of 21
U.S.C.
§§
846 and 841(a) (1)
&
(b) (1) (C), and possession with
intent to distribute a controlled substance, in violation of 21
U.S.C.
§§
& (b) (1) (C).
841(a) (1)
He was sentenced on May 22,
2012, to a term of imprisonment of 235 months as to each offense,
to run concurrently.
Movant appealed his sentence to the United States Court of
Appeals for the Fifth Circuit, which affirmed by an opinion
issued March 27, 2013.
After having unsuccessfully sought a writ
of certiorari by the Supreme Court, movant filed the
§
2255
motion under consideration on October 6, 2014, to which the
government responded on October 30, 2013.
On November 18, 2014, movant filed a document thirty-one
pages in length, accompanied by what appears to be a similar
number of pages of attachments, titled "Supplement to Motion to
Vacate, Set Aside or Correct Sentence Filed by a Person in
Custody Pursuant to 28
u.s.c.
§
2255."
The court did not give
movant authority to file a supplement, though the court did by
order signed October 7, 2014, authorize movant to file a reply by
November 12, 2014, to the response the government had filed on
October 30, 2014.
The court is giving effect to such
"Supplement" to whatever extent it might be viewed to be a reply
to the government's response.
2
II.
The Grounds of Movant's
§
2255 Motion
Movant asserted two grounds for relief in his
§
2255 motion
which, as stated in the motion together with the supporting facts
recited in the motion as to each ground, are as follows:
GROUND ONE:
Counsel rendered ineffective assistance in
investigating basis for Guidelines enhancements.
* * * * *
Defendant provided to defense counsel details
which -- if true -- demonstrated that he did not
possess any firearms or dangerous weapons during the
drug offenses.
In fact, no firearms belonging to,
actually possessed by, or constructively possessed by
Defendant were ever recovered. Defense counsel refused
to investigate the allegation of possession of
firearms, telling Defendant that a firearms enhancement
under USSG § 2Dl.l is impossible to defeat. As well,
defense counsel did not object to the error in the
Presentence Report, although Defendant asked him to do
so, and he did not argue the matter at sentencing.
This was despite the fact that the burden of proof on a
sentencing enhancement is on the government.
Had defense counsel investigated, he would have
obtained evidence that Defendant possessed no firearms,
that no one had ever seen him with firearms other than
an unnamed source eager to assist ATFE agents in making
a firearms case, and that Club policy prohibited anyone
without a concealed carry permit to carry firearms (out
of fear of police harassment).
Such investigation
would have led to Defendant not receiving a two-level
enhancement for firearms, and a lower advisory
Guidelines total offense level.
Mot. at 5.
3
GROUND TWO:
Counsel rendered ineffective
arguing § 3553 (a) (1) factors.
assistance
in
* * * * *
The evidence showed that Defendant voluntarily
withdrew from the motorcycle club well prior to
anyone being aware of a Federal investigation, and
did so for reasons of wanting to no longer engage in
drug dealing, to overcome Defendant's own pain pill
addiction, and to be a better husband and father.
Defendant told the Probation Officer this, but the
PSR recites the alternate story that Defendant was
ejected from the club for wrongdoing, missing
meetings and drug abuse.
Defense counsel did not
object to the error in the PSR, although Defendant
asked him to do so, and he did not argue the matter
at sentencing.
Had this error been corrected and
Defendant's voluntary withdrawal from the
conspiracy and cessation of drug dealing been known
to the Court, it is reasonably likely to have
affected the calculation of the amount of the
conspiracy• s misconduct attributable as relevant
conduct to Defendant, and affected the Court's
perception of an appropriate sentence under 18 U.s. C.
§ 3553
(a) (1).
Id. at 6.
III.
Analysis
A.
Pertinent Legal Principles
1.
Principles Applicable to a 2255 Motion
After conviction and exhaustion, or waiver, of any right to
appeal, courts are entitled to presume that a defendant stands
fairly and finally convicted.
United States v. Frady, 456 u.s.
4
152, 164
(1982); United States v. Shaid, 937 F.2d 228, 231-32
(5th Cir. 1991).
A defendant can challenge her conviction or
sentence after it is presumed final on issues of constitutional
or jurisdictional magnitude only, and may not raise an issue for
the first time on collateral review without showing both "cause"
for her procedural default and "actual prejudice" resulting from
the errors.
Shaid, 937 F.2d at 232.
Section 2255 does not offer recourse to all who suffer trial
errors.
It is reserved for transgressions of constitutional
rights and other narrow injuries that could not have been raised
on direct appeal and would, if condoned, result in a complete
miscarriage of justice.
United States v. Capua, 656 F.2d 1033,
1037 (5th cir. Unit A Sept. 1981).
In other words, a writ of
habeas corpus will not be allowed to do service for an appeal.
Davis v. United States, 417 U.S. 333, 345 (1974).
2.
Ineffective Assistance of Counsel Claims
To prevail on an ineffective assistance of counsel claim,
movant must show (1) that counsel's performance fell below an
objective standard of reasonableness and (2) that there is a
reasonable probability that, but for his counsel's unprofessional
errors, the result of the proceedings would have been different.
Strickland v. Washington, 466 u.s. 668, 687 (1984).
Both prongs
of the Strickland test must be met to demonstrate ineffective
5
assistance.
Id. at 697.
Further,
"[a] court need not address
both components of an ineffective assistance of counsel claim if
the movant makes an insufficient showing on one."
v. Stewart, 207 F. 3d 750, 751 (5th Cir. 2000).
United States
"The likelihood
of a different result must be substantial, not just conceivable,"
Harrington v. Richter, 131 S. Ct. 770, 792
(2011), and a movant
must prove that counsel's errors "so undermined the proper
functioning of the adversarial process that the trial cannot be
relied on as having produced a just result."
Pinholster, 131 S. Ct. 1388, 1403
u.s. at 686).
(2011)
Cullen v.
(quoting Strickland, 466
Judicial scrutiny of this type of claim must be
highly deferential and the defendant must overcome a strong
presumption that his counsel's conduct falls within the wide
range of reasonable professional assistance.
strickland, 466
u.s. at 689.
B.
The Grounds of the Motion Are Without Merit
1.
Ground One
The presentence report contains information, which the
probation officer found to be reliable, that movant possessed
firearms during his drug-trafficking activities that provided
protection during those transactions.
(Doc. 84-1) at 8-9,
~~
25 & 32.
No. 4:11-CR-193-A, PSR
Movant elected to remain silent
6
on that subject during his post-conviction interview by the
probation officer.
Id. at 11,
~
41.
Although movant knew that he had received a two-level
enhancement in his offense level based on his possession of the
firearms, he made no complaint, and said nothing on that subject,
when he was invited at the sentencing hearing to make whatever
statement or presentation he would like to make on the subject of
mitigation, that is the things he thought the court should take
into account in determining the sentence to impose.
No. 4:11-CR-
193-A, Tr. of Sentencing (Doc. 124) at 22-24.
Movant does not provide the court any specificity relative
to his contention that his counsel refused to investigate the
allegation of possession of firearms, nor did movant provide any
specificity as to what such an investigation might have
uncovered.
The record does not disclose anything that would
suggest that a reasonable attorney would have objected to the
two-level firearm enhancement, even if his client had requested
that he do so.
An attorney has no obligation to engage in
frivolous activity on behalf of his client.
Movant has provided
the court no evidence from which the court could conclude that
movant's attorney should have objected to the two-level firearm
enhancement or that, if he had objected, the objection would have
had merit.
7
Presumably movant would have informed the court when he had
an opportunity to do so at the sentencing hearing that the twolevel gun enhancement increase in his offense level was improper
if he had any factual basis for such a contention.
Therefore, ground one of the motion is without merit.
2.
Ground Two
By his ground two, movant takes the position that his
counsel failed to make presentations on his behalf in support of
the 28 U.S.C.
§
3553(a) (1) factors the court should consider in
determining the sentence to impose.
Movant failed to mention, and perhaps has overlooked, that
his counsel filed a sentencing memorandum in which movant's
counsel argued to the court the factors that counsel thought
justified a sentence of imprisonment that would constitute a
downward variance from the advisory guideline range.'
at 1-2.
Ex. hereto
In the sentencing memorandum, movant's counsel urged the
court to consider a number of§ 3553(a)
factors in support of
movant's contention that he should receive a sentence that would
be a variance that would be below the bottom of the advisory
guideline range, including that
(1) the government effectively
'The sentencing memorandum was delivered by movant's counsel to Chambers, and was not
made a part of the record of Case No. 4: 11-CR-193-A in the clerk's office. Therefore, so that the record
in this§ 2255 action will reflect the contents of the memorandum, a copy of the memorandum is being
attached to this memorandum opinion and order as an exhibit.
8
entrapped movant into committing the crimes that he was otherwise
disinclined to commit, id. at 2;
(2) he voluntarily left the
Bandidos in the fall of 2010 and had ceased all illegal activity,
id. at 2··3;
(3) his role in the drug deals was limited to that of
a middleman following orders, id. at 3;
(4) he had spent most of
his adult life working in the challenging environment of the oil
and gas fields, id.;
(5) he developed a pain-killer addiction
resulting from a truck accident, but after leaving the Bandidos,
he "detoxified himself" under a physician's care, id.;
(6) he had
the support of his latest employer, and had become involved with
his family,
id.; and (7) his rehabilitated conduct was self-
motivated and self-directed, increasing the likelihood that he
would not re-offend, id. at 4.
Counsel requested for movant a
sentence of approximately ten years, about one-half of the bottom
of his guideline range, arguing that "possibly more important
than consideration of the crime in sentencing decisions is
consideration of the particular defendant before the court[, and]
that all of the circumstances and factors
. . in this case
reasonably call for an alternative sentence under the factors of
§
3553 (a) (1)
Guidelines."
&
(2) rather than one advised by the Sentencing
Id.
At the sentencing hearing movant's counsel was not content
to rely on his sentencing memorandum, but, instead, he made an
9
impassioned plea for a sentence of imprisonment below the bottom
of the advisory guideline range based on the § 3553 factors.
No.
4:11-CR-193-A, Tr. of Sentencing (Doc. 124) at 23-26.
The sentencing record discloses that movant's counsel was
effective in his presentations, as evidenced by the comments made
by the court after movant's counsel and movant had made their
statements:
THE COURT:
. I'm going to take into account a
lot of the things [movant's counsel] said in deciding
where to impose a sentence and, frankly, it's going to
be significantly lower than I had intended originally.
Frankly, I had in mind going above the 240 months by
doing a consecutive as part of it, but I -- considering
the advisory guideline range overall.
But I've decided that I'm going to limit the
sentence of imprisonment to 235 months and I'm going to
have it -- that, as to each of the counts, and they are
going to run concurrently, so the actual sentence he'll
serve will be 235 months.
Id. at 28.
In addition, movant's counsel arranged for movant's wife and
one of his daughters to speak on movant's behalf at the
sentencing hearing.
Id. at 19-21.
Movant has not provided any
evidence in support of his motion that his counsel did not
adequately and effectively present to the court whatever
information should have been presented on behalf of movant
relative to the§ 3553(a) factors.
Therefore, movant's ground two is without merit.
10
IV.
Order
For the reasons stated above,
The court ORDERS that all relief sought by movant by the
motion he filed on October 6, 2014, to vacate, set aside, or
correct sentence by a person in federal custody, be, and is
hereby, denied.
* * * * *
Pursuant to Rule 22(b) of the Federal Rules of Appellate
Procedure, Rule 11(a) of the Rules Governing Section 2255
Proceedings for the United States District Courts, and 28
§
u.s.c.
2253(c) (2), for the reasons discussed herein, the court further
ORDERS that a certificate of appealability be, and is hereby,
denied, as movant has not made a substantial showing of the
denial of a constitutional right.
SIGNED January 21, 2015.
11
(
IN THE UNITED STATES DISTRJCT COURT
FOR THE NORTHERN DISTRJCT OF TEXAS
FORT WORTH DIVISION
UNITED STATES OF AMERJCA
v.
CHRISTOPHER RAY KINSEY (04)
§
§
§
§
CASE NO. 4-11-CR-00193-A
§
· DEFENDANT'S SENTENCING MEMORANDUM
WITH REOiJESTFOR ALTERNATIVE SENTENCE
. Comes now Christopher Ray Kinsey, Defendant herein, ll!ld respectfully provides
the Court with Defendant's Sentencing Memorandum with Request for Alternative
Sentence pursuant to 18 U.S.C. § 3553(a).
1. The Court, pursuant to 18 U.S.C. § 3553(a) is required to impose a sentence.
sufficient, but not greater than necessary, to comply with (I). the nature and
..
.
circum~tances ofthe.offens~·and the history and characteristics of the defe~dimt, as w~ll
as with the sentencing factors set out in subsection (2). In doing so, the Court is to arrive
at a reasonable sentence under all the circumstances. United States v. Booker, 543 U.S.
220 (2005). Although the Federal Sentencing Guidelines must be considered by the
Court, they are advisory only and not controlling to any degree. The sentence suggested
by the Guidelines does not even have a presumption of reasonableness attached to it.
Rita v. United States, 551 U.S. 338 127 S.Ct. 2454,2465 (2007). The U.S. Supreme
Court has provided instructions to district courts as to the sentencing process as follows:
"The sentencing judge, as a matter of process, will normally begin by considering
the presentence report and its interpretation of the Guidelines. 18 U.S.C. §
3553(a); Fed.R.Crim.P. 32. He may hear arguments by prosecution or defense
that the Guidelines sentence should not apply, perhaps because (as the Guidelines
themselves foresee) the case at hand falls outside the 'heartland' to which the
Commission intends individual Guidelines to apply, USSO § 5K2.0, perhaps
because the Guidelines sentence itself fails properly to reflect§ 3553(a)
Exhibit to Memorandum Opinion and
Order dated January 21,2015, in
Case Nos. 4:14-CV-813-A
& 4:11-CR-193-A
Page 1 of5
,•'
considerations, or perhaps because the case warrants a diff~rent sentence
regardless .... In determhiing the merits of these arguments, the sentencing
court does not enjoy the benefit of a legal presumption tha.t the Guidelines
sentence should apply.
/d.. at p. 2465 (emphasis supplied). Since Rita, supra, the Supreme Court has also
stressed even more, the discretion that lies with the district court in determining a
reasonable sentence und,erall the circumstances of the particular offense and the his1ory
and cliaracteristics of the particular defend!mt. Gall v. United States 552 u.s. 38, 128
S.Ct. ,586 (2007) and, most recently, Pepper v, United States, 562 U.S. __, 131 S.Ct.
1229 (2011).
2. The "facts and circumstances of this case" inexorably point toward a sentence
that is not contemplated by the Sentencing Guidelines. Guidelines are supposed to be
determined by the Defendant's motives and conduct! not that of the governm~nt.
Especially so in drug cases, the guidelines are determined principally by the kinds and
amounts of drugs involved in the offense. Both of these fundamental factors were wholly
determined by the govel1ll)lent in this case. The only reason the Defendant became
involved in the offenses in the first place, is because the government, and later the
government and its informant, "CS I", convinced the Defendant that the way they were
going to finance the operations and overhead of the government's "motorcycle shop",
was by buying and then re-selling drugs. The Defendant did not claim entrapment in this
case because, since he was a member of the Bandidos, he agreed to participate and help
his "brothers" keep the motorcycle shop open in this way. The Defendant was not a
dealer of heroin, cocaine, or methamphetamine before becoming involved in the
government's sting operation. Also, from the time in the fall of 20 I 0, when he
voluntarily left the Bandidos, until the date of his arrest, September 27, 20 I I, he did not
2
Exhibit to Memorandum Opinion and
Order dated JanuarY 21,2015, in
Case Nos. 4:14-CV-813-A
& 4:11-CR-193-A
Page 2 of 5
i
'
deal in these drugs. Although the government's investigation continued until well into
the summer of2011, the Defendant had ceased all his heroin and methamphetamine
acquiring activities approximately a year before. That activity was entirely tied to his
involvement within the Bandidos. Also, in connection with these drug activities, he was
never a manager or a leader or a decision maker of any kind. He was simply a middleman, taking money from the government fepresentative, buying what the gove~ent had
ordered, and bringing it back to the government representatives. If he is to be reasonably
punished for what he did, let it not depend for the most part upon the motives, amounts,
and types of drugs, all determined by the government and its agents.
3. Christopher Kinsey has been a worker in the oil and gas fields for most of his·
adult life. This is not easy work as I'm si.rre the Court is well aware. It involves hours of
physical labor in hot, fairly dangerous working conditions on .and around rigs of various ·
types and sizes. As related in the PSR, Mr. Kinsey was involved in a truck accident at
one time which resulted in injuries that necessitated pain medication. As some people do,
Mr. Kinsey became addicted to the medication and abused these type medications during
.his adult years. However, during the last year before his arrest, after leaving the
Banditos, Mr. Kinsey detoxified himself with the help of a local Jacksboro physician that
would allow the family to pay as they could. Also a.letter from Mr. Kinsey's last
employer, at the time of his arrest, ROC Service Co., LLC, was provided the Court, along
with some pay slips and results of the company's latest drug tests on Mr. Kinsey. As
related by family letters to the Court, during the period after his leaving the Bandidos,
Mr. Kinsey had become more involved with his children, his family and normal family
activities. It is respectfully submitted that this latest type behavior on the part of Mr.
3
Exhibit to Memorandum Opinion and
Order dated January 21, 2015, in
Case Nos. 4:14-CV-813-A
& 4: 11-CR-193-A
Page 3 of5
Kinsey over the year prior to his arrest is extremely relevant on "the history and
characteristics of the defendant". Pepper v. United States, supra. "Most fundamentally,
evidence o[Pepper's conduct since his release from custody in June 2005 provides the
most up-to-date picture of Pepper's 'history and characteristics'. §3553(a) (I) See United
States v. Bryson, 229 F.3d 425,426 (CA 22000) ('[A] court's duty is always to
~entence
the defendant as .he stands before the court on the day of sente~cirig. ')" /d: P. 1242.
Further, arid importantly, Mr. Kinsey's rehabilitative conduct was self-motivated. and
self-directed. This latest conduct should also bear heavily on Mr. Kinsey's likelihood to
engage in future criminal conduct, another factor sentencing courts must consider. The
case of Gall v. United States, 552 U.S. 38, 128 Sc.D. 586 (2007) is also instructive in this
situation as Gall,like here, involved post-offense rehabilitative conduct on the part of the
defendant. These c~es ilemonstrate that possibly 111ore important than col)sideration of
the crime in sentencing decisions is consideration of the particular defendant before the
court. It is submitted that all the circumstances and factors before the Court in this case
reasonably call for an alternative sentence under the f11ctors of§ 3553(a) (I) and (2)
rather than one advised by the Sentencing Guidelines.
Wherefore, premises considered, it is respectfully requested that the Court impose
an alternative sentence in the range of approximately ten years under the 18 U.S.C., §
3553(a) factors because, in the words of Rita, supra, " ... the case warrants a differelllt
sellllence regardless." (emphasis supplied).
Respectfully submitted,
4
Exhibit to Memorandum Opinion and
Order dated January 21, 2015, in
Case Nos. 4: 14-CV-813-A
& 4:11-CR-193-A
Page 4 of5
(
John W. Sweeney, Jr.
SBIN: 19570500
4205 Woodland Park Blvd.,
Arlington, Texas 76013
(817) 635-7419
(817) 261-1671 (facsimile)
jwsweeuey!aw@sbcglobal.net
Attorney for Defendant
Christopher. Ray Kinsey
CERTIFICATE OF SERVICE
I hereby certify that on April30, 2012, the foregoing pleading was hand delivered
to the Chambers of United States District Judge John McBryde, 41h Floor, U.S.
Courthouse, Fort Worth, Texas and copies hand delivered to the office of the U.S.
Attorney, 801 Cherry Street, Ste. 1700, Fort Worth, Texas for AUSA Josh Burgess and to
the U.S. Probation Office, 41h Floor, U.S. Courthouse, Fort Worth, Texas for U.S. Senior
USPO Carol E. Foreman. .
·
5
Exhibit to Memorandum Opinion and
Order dated January 21,2015, in
Case Nos. 4:14-CV-813-A
& 4:11-CR-193-A
Page 5 of5
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