Downs v. United States of America

Filing 2

ORDER Adopting Report and Recommendation denying 1 Motion to Vacate, Set Aside, or Correct Sentence (2255) filed by Erik Downs. Signed by Chief Judge Christina Reiss on 9/13/2017. (law)

UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
UNITED STATES OF AMERICA
v.
ERIK DOWNS

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2011 SEP t3 PH 3: 31t

Case No. 5:13-cr-152

OPINION AND ORDER ADOPTING MAGISTRATE JUDGE'S
REPORT AND RECOMMENDATION
(Docs. 58, 66, & 72)
This matter came before the court for a review of the Magistrate Judge's July 27,
2017 Report and Recommendation ("R & R"). (Doc. 72.) On April 7, 2017, Defendant
Erik Downs, who is self-represented, filed a motion pursuant to 28 U.S.C. § 2255 seeking
a reduction of his mandatory minimum 120-month sentence on the ground that he
received ineffective assistance of counsel at sentencing. (Doc. 58.) On May 15, 20 17,
Defendant filed an amended motion further contending that the court failed to sentence
him pursuant to a one-to-one crack-to-powder ratio, and erroneously added offense level
points for reckless endangerment under United States Sentencing Guideline ("U.S.S.G.")
§ 3Cl.2. (Doc. 66.) The government opposes both motions. Neither party has filed an

objection to the R & R, and the time to do so has expired.
A district judge must make a de novo determination of those portions of a
magistrate judge's report and recommendation to which an objection is made. Fed. R.
Civ. P. 72(b); 28 U.S.C. § 636(b)(l); Cullen v. United States, 194 F.3d 401,405 (2d Cir.
1999). The district judge may accept, reject, or modify, in whole or in part, the findings
or recommendations made by the magistrate judge. 28 U.S.C. § 636(b)(l); accord

Cullen, 194 F.3d at 405. A district judge, however, is not required to review the factual
or legal conclusions of the magistrate judge as to those portions of a report and
recommendation to which no objections are addressed. Thomas v. Arn, 474 U.S. 140,
150 (1985).

In his sixteen pageR & R, the Magistrate Judge carefully considered Defendant's
ineffective assistance of counsel claim. Defendant alleges that counsel failed to advise
him that his 60-month sentence for possession of a firearm during a drug trafficking
offense would run consecutively to his 60-month sentence for distribution of cocaine
base. As the Magistrate Judge observed, Defendant's counsel stated that he "never
informed [Defendant] that his sentences (on Counts 1 and 2) would run concurrently[,]"
and instead told him "on multiple occasions" that the sentences would run consecutively.
(Doc. 69 at 1, ,-r,-r 5-6.) The Magistrate Judge highlighted several examples in the record
that support counsel's statements, and he committed no error in concluding that
Defendant failed to satisfy either prong of the Strickland test for establishing ineffective
assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 687 (1984) ("First,
the defendant must show that counsel's performance was deficient. This requires
showing that counsel made errors so serious that counsel was not functioning as the
'counsel' guaranteed the defendant by the Sixth Amendment. Second, the defendant
must show that the deficient performance prejudiced the defense. This requires showing
that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial
whose result is reliable.").
With respect to Defendant's claims that the court erred in calculating his sentence,
the Magistrate Judge correctly concluded the court's alleged errors were nonconstitutional and therefore procedurally barred because Defendant failed to raise them
on direct appeal. See Graziano v. United States, 83 F.3d 587, 589-90 (2d Cir. 1996)
(holding "collateral attack on a final judgment in a criminal case is generally available
under § 225 5 only for a constitutional claim of error, a lack of jurisdiction in the
sentencing court, or an error of law or fact that constitutes a fundamental defect which
inherently results in complete miscarriage of justice") (internal quotation marks omitted).
The Magistrate Judge nevertheless proceeded to analyze Defendant's arguments and
properly concluded that the court was required to impose the 120-month term of
imprisonment because the case involved a statutorily mandated minimum sentence. As a
result, a departure or variance based on a 1: 1 ratio between cocaine base and cocaine
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powder would not reduce Defendant's sentence. Likewise, had the court not applied a
"reckless endangerment during flight" adjustment under U.S.S.G. § 3C1.2, Defendant's
sentence would also remain unchanged.
Based on the foregoing, the Magistrate Judge properly concluded that Defendant
failed to meet his burden of establishing by a preponderance of the evidence any claim
advanced in his § 2255 motions. The court finds the Magistrate Judge's conclusions
well-reasoned and consistent with the applicable law.
CONCLUSION

For the foregoing reasons, the court hereby ADOPTS the Magistrate Judge's
R & R (Doc. 72), DENIES Defendant's motion to vacate and amended motion to vacate,
and DISMISSES Defendant's § 2255 motion and amended motion (Docs. 58 & 66).
Pursuant to Fed. R. App. P. 22(b)(l) and 28 U.S.C. § 2253(c)(2), the court
DENIES Defendant a certificate of appealability in this matter because Defendant has
failed to make a substantial showing of the denial of a constitutional right.
SO ORDERED.
Dated at Burlington, in the District of Vermont, this

I 3 ?hday of September, 2017.

~ge

United States District Court

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