Begay v. USA

Filing 4

MEMORANDUM DECISION denying 2 Motion to Appoint Counsel. denying 1 Motion to Vacate, Set Aside or Correct Sentence; It is further ordered that pursuant to Rule 8(a) of the Rules Governing § 2255 Cases, an evidentiary hearing is not required. It is further ORDERED that pursuant to Rule 11(a) of the Rules Governing § 2255 Cases, the Court DENIES Petitioner a certificate of appealability. Signed by Judge Ted Stewart on 6/27/18. (jlw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
MEMORANDUM DECISION AND
ORDER DENYING MOTION UNDER 28
U.S.C. § 2255 TO VACATE, SET ASIDE
OR CORRECT SENTENCE BY A
PERSON IN FEDERAL CUSTODY

NELSON BEGAY,
Petitioner,
v.
UNITED STATES OF AMERICA,

Civil Case No. 2:18-CV-490 TS
Criminal Case No. 2:11-CR-355 TS

Respondent.

District Judge Ted Stewart
This matter is before the Court on Petitioner’s Motion Under 28 U.S.C. § 2255 to Vacate,
Set Aside or Correct Sentence by a Person in Federal Custody. For the reasons discussed below,
the Court will deny the Motion and dismiss this case.
I. BACKGROUND
On April 27, 2011, Petitioner was charged with failure to register as a sex offender. On
September 8, 2011, Petitioner pleaded guilty. On November 10, 2011, Petitioner was sentenced
to 21 months in the custody of the Bureau of Prisons to be followed by 120 months of supervised
release.
On November 14, 2017, the Court signed a Petition alleging that Petitioner had violated
the terms of his supervised release. An Amended Petition was signed on April 3, 2018.
Petitioner came before the Court on April 4, 2018, to respond to the allegations contained in the
Amended Petition. Petitioner admitted to violating the terms of his supervision as alleged in
Allegations 2 and 4. The Court imposed a sentence of 10 months in the custody of the Bureau of
Prisons to be followed by 60 months of supervised release. Petitioner has now filed this Motion.

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II. DISCUSSION
Petitioner’s Motion raises a claim of ineffective assistance of counsel. Petitioner also
requests early termination of his supervised release. The Court will discuss each argument in
turn.
A.

INEFFECTIVE ASSISTANCE OF COUNSEL
The Supreme Court has set forth a two-pronged test to guide the Court in making a

determination of ineffective assistance of counsel. “To demonstrate ineffectiveness of counsel,
[Petitioner] must generally show that counsel’s performance fell below an objective standard of
reasonableness, and that counsel’s deficient performance was prejudicial.” 1 To establish
prejudice, 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.” 2
A court is to review Petitioner’s ineffective-assistance-of-counsel claim from the
perspective of his counsel at the time he or she rendered the legal services, not in hindsight. 3 In
addition, in evaluating counsel’s performance, the focus is not on what is prudent or appropriate,
but only what is constitutionally compelled. 4 Finally, “[t]here is a strong presumption that
counsel provided effective assistance, and a section 2255 defendant has the burden of proof to
overcome that presumption.” 5

1

United States v. Lopez, 100 F.3d 113, 117 (10th Cir. 1996) (citing Strickland v.
Washington, 466 U.S. 668, 687, 690 (1984)).
2

Strickland, 466 U.S. at 694.

3

Hickman v. Spears, 160 F.3d 1269, 1273 (10th Cir. 1998).

4

United States v. Cronic, 466 U.S. 648, 665 n.38 (1984).

5

United States v. Kennedy, 225 F.3d 1187, 1197 (10th Cir. 2000) (quoting United States
v. Williams, 948 F. Supp. 956, 960 (D. Kan. 1996)).

2

The Violation Sentencing Report prepared in this matter calculated a Guideline Range of
imprisonment of 7 to 13 months. This was based on the fact that the most serious grade of
violation was a C and Petitioner had a criminal history category of V. Petitioner argues that his
criminal history category was a II, which would have resulted in a Guideline Range of 4 to 10
months, and that his counsel was ineffective for failing to challenge his criminal history
category.
Application Note 1 to Guideline Section 7B1.4 provides that “[t]he criminal history
category to be used in determining the applicable range of imprisonment in the Revocation Table
is the category determined at the time the defendant originally was sentenced to the term of
supervision.” Here, the record reveals that Petitioner’s criminal history category at the time he
was originally sentenced to the term of supervision was a V. This is reflected in the sentencing
transcript and the Statement of Reasons. 6 There is no evidence to support Petitioner’s contention
that his criminal history category was a II. Thus, there was no basis for counsel to challenge the
criminal history category and counsel’s performance was not deficient.
B.

EARLY TERMINATION OF SUPERVISED RELEASE
Petitioner also requests termination of his supervised release. A motion under § 2255 is

not the proper vehicle for seeking such relief. However, the Court will consider Petitioner’s
request under 18 U.S.C. § 3583(e). That provision allows the Court to terminate supervised
release at any time after a defendant has completed at least one year of supervised release, but
prior to completion of the entire term, if the Court is satisfied that such action is (1) warranted by
the conduct of an offender and (2) is in the interest of justice.
6

Case No. 2:11-CR-355 TS, Docket Nos. 23, 32.

3

Having consider the relevant factors under 18 U.S.C. § 3553(a), the Court finds that early
termination is not appropriate here. Petitioner was recently found to have violated the terms of
his supervision and was sentenced to a term of imprisonment. This conduct demonstrates that
early termination is not warranted by Petitioner’s conduct and is not in the interest of justice.
Should Petitioner demonstrate that early termination is warranted at some future date, the Court
is willing to reconsider its decision here.
III. CONCLUSION
It is therefore
ORDERED that Petitioner’s Motion Pursuant to 28 U.S.C. § 2255 to Vacate, Set Aside or
Correct Sentence by a Person in Federal Custody (Docket No. 1 in Case No. 2:18-CV-490 TS) is
DENIED. It is further
ORDERED that Petitioner’s Motion to Appoint Counsel (Docket No. 2 in Case No. 2:18CV-490 TS) is DENIED. It is further
ORDERED that, pursuant to Rule 8(a) of the Rules Governing § 2255 Cases, an
evidentiary hearing is not required. It is further
ORDERED that pursuant to Rule 11(a) of the Rules Governing § 2255 Cases, the Court
DENIES Petitioner a certificate of appealability.
DATED this 27th day of June, 2018.
BY THE COURT:

Ted Stewart
United States District Judge

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