Brite v. USA
Opinion and Order. This Section 2255 action is DENIED as meritless. COA Denied. (Ordered by Judge Reed C. O'Connor on 7/27/2017) (trt) .
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
UNITED STATES OF AMERICA,
Civil No. 4:16-CV-0838-O
OPINION AND ORDER
Shanda Brite (“Movant”), a federal prisoner, filed a motion to vacate, set aside,
or correct her federal sentence pursuant to 28 U.S.C. § 2255. After considering her
Section 2255 motion (ECF No. 1), the government’s response (ECF No. 4), and her
reply (ECF No. 5), the Court concludes that her Section 2255 motion should be denied
Movant pleaded guilty to maintaining a drug-involved premises, in violation of
21 U.S.C. § 856(a)(1). In a factual resume, she admitted that, from September 2014
through her arrest, she allowed others, including Erica Ayala and Miguel Bonilla, to
use her house to sell methamphetamine in exchange for methamphetamine. See No.
4:15-CR-153-O, ECF No. 128. In the Presentence Report (“PSR”), Movant was held
accountable for 541.88 grams of methamphetamine; that total represented the sum of
the amounts that Movant had received from Ayala in exchange for the use of her
house, the large amounts delivered to–and possessed by–Ayala at Movant’s house, the
amounts Movant had delivered to others, and the methamphetamine that she had
placed in her mailbox for one of Ayala’s customers. See No. 4:15-CR-153-O, ECF No.
227. The PSR also recommended enhancements on the following grounds: Movant
possessed a dangerous weapon during the offense; the methamphetamine was imported
from Mexico; and Movant maintained a residence to traffic drugs. Id. Furthermore,
the PSR recommended against a reduction for accepting responsibility, despite
Movant’s admission of guilt, because she had violated the conditions of her pretrial
At sentencing, Movant’s counsel objected to the PSR’s recommendations
regarding the dangerous weapon enhancement and the refusal to award Movant a
reduction for accepting responsibility. Her counsel did not, however, challenge the
PSR’s conclusion that Movant was accountable for the 541.88 grams of
methamphetamine possessed by or delivered to Ayala at Movant’s house. The Court
sustained Movant’s objections and sentenced her to prison for 120 months. See No.
4:15-CR-153-O, ECF No. 457.
Movant did not file a direct appeal. She did, however, timely file this Section
2255 motion. She presents only one claim–that her sentencing counsel was ineffective
for failing to object to the PSR’s conclusion that she was responsible for 541.88 grams
of methamphetamine. See 4:16-cv-0838-O, ECF No. 1.
Standard Governing Ineffective Assistance of Counsel Claims
The Sixth Amendment guarantees a criminal defendant “reasonably effective
assistance” of counsel. Strickland v. Washington, 466 U.S. 668, 687 (1984). To prevail
on her claim that she was denied reasonably effective assistance, Movant must show
that (1) her counsel’s representation fell below an objective standard of reasonableness,
and (2) there is a reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceedings would have been different. Id. at 687-91, 694.
Movant asserts that her counsel was ineffective for failing to object to the
amount of methamphetamine that the PSR attributed to her. Specifically, she urges
that counsel should have challenged the PSR’s conclusion that she was responsible for
the 226.8 grams of methamphetamine that was delivered to Ayala at Movant’s house
and the additional 255.25 grams that Ayala possessed there. However, because the
PSR correctly attributed those amounts of methamphetamine to Movant, she cannot
show that counsel was deficient in not raising that objection. See United States v.
Kimler, 167 F.3d 889, 893 (5th Cir. 1999) (“An attorney’s failure to raise a meritless
argument cannot form the basis of a successful ineffective assistance of counsel
The sentence for a defendant convicted of a drug offense is “based on the amount
of drugs involved in the offense.” United States v. Rhine, 583 F.3d 878, 885 (5th Cir.
2009); see also U.S.S.G. § 2D1.1(a)(5), (c). That quantity includes both drugs with
which the defendant was directly involved, and those drugs that can be attributed to
the defendant under the United States Sentencing Guidelines § 1B1.3. Under Section
1B1.3, a defendant who engaged in a joint criminal activity is accountable for the other
participants’ acts that were (i) within the scope of the jointly undertaken criminal
activity, (ii) in furtherance thereof, and (iii) were reasonably foreseeable in connection
with that activity. And, in drug cases like this one, the defendant is accountable for
the contraband that was the object of that jointly undertaken activity. See U.S.S.G.
§ 1B1.3, cmt. n. 3.
Movant alleges that there was no evidence from which the Court could conclude
that she and Ayala jointly undertook a scheme to sell drugs. But Movant pleaded
guilty to maintaining a house that Ayala would use to sell methamphetamine. Movant
also signed a factual resume admitting that she let Ayala, and others, use her house
to sell methamphetamine, and, in exchange, Ayala gave Movant methamphetamine.
Moreover, the PSR stated that Movant had driven Ayala to her methamphetamine
supplier to obtain methamphetamine, deposited methamphetamine in her mailbox for
one of Ayala’s customers, and, on several occasions, delivered methamphetamine to
Ayala’s customers. The Court could properly rely on that information from the PSR,
see United States v. Alaniz, 726 F.3d 586, 619 (5th Cir. 2013), to determine that
Movant and Ayala jointly undertook a criminal plan to sell methamphetamine from
Movant’s house. See U.S.S.G. § 1B1.3, cmt. n. 3(B) (determining the scope of the jointly
undertaken criminal activity involves considering “any explicit agreement or implicit
agreement fairly inferred from the conduct of the defendant and others.”).
Moreover, given the joint criminal activity undertaken by Ayala and Movant, the
large amounts of methamphetamine that Ayala possessed–and those that were
delivered to her at Movant’s house–were both properly attributed to Movant. Ayala’s
possession of that methamphetamine fell squarely within the scope of the plan to sell
methamphetamine from Movant’s house.
Ayala received, possessed, and stored
methamphetamine there to further that jointly undertaken activity, and those actions
were reasonably foreseeable in light of it. Therefore, those amounts were properly
attributable to Movant under Section 1B1.3.
Because the PSR correctly held Movant accountable for both of the challenged
amounts of methamphetamine, her counsel did not act unreasonably in failing to so
challenge the PSR.
Upon review of the motion to vacate and the files and records of this case, an
evidentiary hearing appears unnecessary. No evidentiary hearing is required if “the
motion and the files and records of the case conclusively show that the prisoner is
entitled to no relief.” 28 U.S.C. § 2255(b). In this instance, the matters reviewed by the
Court conclusively show that Movant is entitled to no relief.
Certificate of Appealability
Considering the record in this case and pursuant to Federal Rule of Appellate
Procedure 22(b), Rule 11(a) of the Rules Governing §§ 2254 and 2255 proceedings, and
28 U.S.C. § 2253(c), the Court denies a certificate of appealability. Movant 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 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, 48 (2000).
In the event Movant elects to file a notice of appeal, the Court notes that he will
need to pay the appellate filing fee or submit a motion to proceed in forma pauperis.
This Section 2255 action is DENIED as meritless.
SO ORDERED this 27th day of July, 2017.
UNITED STATES DISTRICT JUDGE
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