DeVaughn v. USA

Filing 31

MEMORANDUM OPINION AND ORDER GRANTING MOTION FOR LEAVE TO AMEND (DKT. NO. 21 ), GRANTING IN PART AND DENYING IN PART § 2255 PETITION (DKT. NO. 1 ), CORRECTING SENTENCE, DISMISSING CASE WITH PREJUDICE, AND DENYING CERTIFICATE OF APPEALABILIT Y. The Clerk SHALL enter a separate judgment order in favor of the United States. Signed by Senior Judge Irene M. Keeley on 8/17/2022. (Copy to Petitioner by cert. mail; emailed to USM, USP) (dk) (Additional attachment(s) added on 8/17/2022: # 1 Certified Mail Return Receipt) (dk).

Case 1:14-cv-00173-IMK Document 31 Filed 08/17/22 Page 1 of 36 PageID #: 180

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
HERBERT DEVAUGHN,
Petitioner,
Civil Action No. 1:14CV173
Criminal Action No. 1:10CR78-1
(Judge Keeley)

v.
UNITED STATES OF AMERICA,
Respondent.

MEMORANDUM OPINION AND ORDER
GRANTING MOTION FOR LEAVE TO AMEND [DKT. NO. 302],
GRANTING IN PART AND DENYING IN PART § 2255 PETITION
[DKT. NO. 269], CORRECTING SENTENCE, DISMISSING CASE
WITH PREJUDICE, AND DENYING CERTIFICATE OF APPEALABILITY
Pending before the Court are the pro se petition filed by
Herbert DeVaughn (“DeVaughn”) to vacate, set aside, or correct his
sentence pursuant to 28 U.S.C. § 2255 (Dkt. No. 269),1 and his
motion for leave to amend that petition (Dkt. No. 302). For the
reasons that follow, the Court GRANTS DeVaughn’s motion for leave
to amend (Dkt. No. 302), GRANTS IN PART and DENIES IN PART his
§ 2255 petition (Dkt. No. 269), and DISMISSES this case WITH
PREJUDICE.

1

All docket numbers refer to Criminal Action No. 1:10CR78 unless
otherwise noted.

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DEVAUGHN v. UNITED STATES

1:14CV173/1:10CR78-1

MEMORANDUM OPINION AND ORDER
GRANTING MOTION FOR LEAVE TO AMEND [DKT. NO. 302],
GRANTING IN PART AND DENYING IN PART § 2255 PETITION
[DKT. NO. 269], CORRECTING SENTENCE, DISMISSING CASE
WITH PREJUDICE, AND DENYING CERTIFICATE OF APPEALABILITY
I. BACKGROUND
A. Prior Criminal Proceedings
On September 22, 2010, a grand jury returned an indictment
which charged DeVaughn with conspiracy to possess with the intent
to distribute at least 100 grams of heroin, in violation of 21
U.S.C. §§ 846 and 841(b)(1)(B) (“Count One”); seven counts of
distribution of heroin, in violation of 21 U.S.C. § 841(a)(1),
(b)(1)(C) (“Counts Three, Four, Eight, Nine, Eleven, Thirteen, and
Fourteen”); possession with the intent to distribute heroin, in
violation of 21 U.S.C. § 841(a)(1), (b)(1)(C) and 18 U.S.C. § 2
(“Count

Ten”);

distribution

of

heroin

and

cocaine

base,

in

violation of 21 U.S.C. § 841(a)(1), (b)(1)(C) (“Count Twelve”);
and use of a minor to distribute heroin, in violation of 21 U.S.C.
§ 861(a)(1) (“Count Fifteen”) (Dkt. No. 13).
After a three-day trial, a jury convicted DeVaughn on all
eleven counts in which he was named as a defendant (Dkt. No. 136).
On September 6, 2011, he moved for a new trial, arguing that (1)
the Court had improperly required his attorney to use peremptory
2

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DEVAUGHN v. UNITED STATES

1:14CV173/1:10CR78-1

MEMORANDUM OPINION AND ORDER
GRANTING MOTION FOR LEAVE TO AMEND [DKT. NO. 302],
GRANTING IN PART AND DENYING IN PART § 2255 PETITION
[DKT. NO. 269], CORRECTING SENTENCE, DISMISSING CASE
WITH PREJUDICE, AND DENYING CERTIFICATE OF APPEALABILITY
strikes to excuse jurors who should have been removed for cause;
(2) the Court had improperly admitted evidence of his prior acts
under Fed. R. Evid. 404(b); and (3) insufficient evidence existed
to sustain a conviction on Count Three because the only probative
evidence supporting that conviction was hearsay testimony from a
police officer who had listened to the drug transaction (Dkt. No.
142).
On December 1, 2011, the Court denied DeVaughn’s post-trial
motion (Dkt. No. 183) and sentenced him to concurrent 360-month
sentences on Counts One and Fifteen,2 and concurrent 240-month
sentences on Counts Three, Four, and Eight through Fourteen (Dkt.
No. 188). It also imposed concurrent sentences of supervised
release of six (6) years on Counts One and Fifteen and concurrent
terms of three (3) years on each of the remaining counts. Id.

2

Pursuant to Amendment 782 to the United States Sentencing Guidelines,
effective November 1, 2014, and made retroactive by the Sentencing
Commission, the Court, on January 27, 2015, reduced DeVaughn’s original
360-month sentences on Counts One and Fifteen to 288 months of
imprisonment (Dkt. No. 285).

3

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DEVAUGHN v. UNITED STATES

1:14CV173/1:10CR78-1

MEMORANDUM OPINION AND ORDER
GRANTING MOTION FOR LEAVE TO AMEND [DKT. NO. 302],
GRANTING IN PART AND DENYING IN PART § 2255 PETITION
[DKT. NO. 269], CORRECTING SENTENCE, DISMISSING CASE
WITH PREJUDICE, AND DENYING CERTIFICATE OF APPEALABILITY
On December 2, 2011, DeVaughn appealed to the Fourth Circuit
Court of Appeals (Dkt. No. 185), and also moved to terminate his
relationship with his attorney and proceed pro se (Dkt. No. 204).
The Fourth Circuit granted his motion to terminate but appointed
new appellate counsel (Dkt. No. 208).
On appeal, DeVaughn assigned as error: (1) the Court’s denial
of his motion to strike two potential jurors; (2) its calculation
of his relevant drug weight;

and (3) its

enhancement of his

sentence based on his role as a leader and because he used a minor
in connection with his drug dealing activity (Dkt. No. 215). On
June 6, 2013, the Fourth Circuit affirmed DeVaughn’s conviction
and sentence. Id. On August 23, 2013, DeVaughn petitioned the
Supreme Court for a writ of certiorari (Dkt. No. 307), which that
Court denied on October 7, 2013 (Dkt. No. 308).
B. Instant § 2255 Petition
On October 17, 2014, DeVaughn, acting pro se, filed a § 2255
habeas petition alleging ineffective assistance of counsel during
plea bargaining, trial, sentencing, and on appeal (Dkt. No. 269).
4

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DEVAUGHN v. UNITED STATES

1:14CV173/1:10CR78-1

MEMORANDUM OPINION AND ORDER
GRANTING MOTION FOR LEAVE TO AMEND [DKT. NO. 302],
GRANTING IN PART AND DENYING IN PART § 2255 PETITION
[DKT. NO. 269], CORRECTING SENTENCE, DISMISSING CASE
WITH PREJUDICE, AND DENYING CERTIFICATE OF APPEALABILITY
On December 17, 2014, he filed a memorandum of law expanding on
these allegations (Dkt. No. 283).
C. Motion to Amend
After its correspondence directed to DeVaughn was returned as
undelivered based on his failure to update his address, the Court
dismissed his petition without prejudice on November 2, 2017 (Dkt.
No. 297). Then, on March 3, 2019, DeVaughn moved to reopen his
case and provided an updated address (Dkt. No. 298). The Court
granted his motion to reopen on May 7, 2019 (Dkt. No. 300).
Shortly thereafter, on June 14, 2019, DeVaughn moved for leave
to amend his habeas petition to add another ground for relief to
his ineffective assistance of counsel claim (Dkt. No. 302). After
DeVaughn filed this motion, the Court notified him, pursuant to
Hill v. Braxton, 277 F.3d 701, 707 (4th Cir. 2022), that his § 2255
petition may be untimely as it appeared he had filed it after the
expiration of the statute of limitations (Dkt. No. 303). DeVaughn
responded on July 8, 2019, disputing that his petition was untimely
(Dkt. No. 305). In support, he filed copies of correspondence
5

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DEVAUGHN v. UNITED STATES

1:14CV173/1:10CR78-1

MEMORANDUM OPINION AND ORDER
GRANTING MOTION FOR LEAVE TO AMEND [DKT. NO. 302],
GRANTING IN PART AND DENYING IN PART § 2255 PETITION
[DKT. NO. 269], CORRECTING SENTENCE, DISMISSING CASE
WITH PREJUDICE, AND DENYING CERTIFICATE OF APPEALABILITY
regarding his petition for writ of certiorari denied by the Supreme
Court on October 7, 2013 (Dkt. No. 308).
After it reviewed this information, the Court again notified
DeVaughn that his § 2255 petition may still be untimely because
the Court received it on October 17, 2014, ten (10) days after the
expiration of the one-year filing deadline (Dkt. No. 306). DeVaughn
argued in response that under the prison mailbox rule his petition
was timely (Dkt No. 310 at 2). See Houston v. Lack, 487 U.S. 266
(1988).
II. APPLICABLE LAW
Section 2255(a) permits a federal prisoner who is in custody
to assert the right to be released if his “sentence was imposed in
violation of the Constitution or laws of the United States,” if
“the court was without jurisdiction to impose such sentence,” or
if his “sentence was in excess of the maximum authorized by law,
or is otherwise subject to collateral attack.” 28 U.S.C. § 2255(a).
A petitioner bears the burden of proving any of these grounds by

6

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DEVAUGHN v. UNITED STATES

1:14CV173/1:10CR78-1

MEMORANDUM OPINION AND ORDER
GRANTING MOTION FOR LEAVE TO AMEND [DKT. NO. 302],
GRANTING IN PART AND DENYING IN PART § 2255 PETITION
[DKT. NO. 269], CORRECTING SENTENCE, DISMISSING CASE
WITH PREJUDICE, AND DENYING CERTIFICATE OF APPEALABILITY
a preponderance of the evidence. See Miller v. United States, 261
F.2d 546, 547 (4th Cir. 1958).
III. TIMELINESS
The Court must first determine whether DeVaughn timely filed
his § 2255 petition, memorandum of law, and motion to amend. The
Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”)
established a one-year statute of limitations for filing a habeas
petition under § 2255. Under the AEDPA, the limitation period
begins on the latest of:
(1)

the date on which the
conviction becomes final;

(2)

the date on which the impediment to
making
a
motion
created
by
the
governmental action in violation of the
Constitution or laws of the United States
is removed, if the movant was prevented
from making a motion by such governmental
action;
the date on which the right was initially
recognized by the Supreme Court and made
retroactively applicable to cases on
collateral review; or

(3)

(4)

judgment

of

the date on which the facts supporting
the claim or claims presented could have
7

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DEVAUGHN v. UNITED STATES

1:14CV173/1:10CR78-1

MEMORANDUM OPINION AND ORDER
GRANTING MOTION FOR LEAVE TO AMEND [DKT. NO. 302],
GRANTING IN PART AND DENYING IN PART § 2255 PETITION
[DKT. NO. 269], CORRECTING SENTENCE, DISMISSING CASE
WITH PREJUDICE, AND DENYING CERTIFICATE OF APPEALABILITY
been discovered through the exercise of
due diligence.
28 U.S.C. § 2255(f)(1)-(4).
Although a habeas petition generally must be filed within the
one-year statute of limitations, for prisoners this timeframe
depends on when the document is mailed, not when it is received by
the Court. See Houston, 487 U.S. at 276 (holding that an appellate
notice is deemed filed at the time it is delivered to prison
officials, not the time the Court receives it); United States v.
McNeill, 523 F. App’x 979, 982 (4th Cir. 2013) (finding “that the
prison mailbox rule should apply if [the petitioner] mailed his
petition before the end of the appellate limitations period”).
Moreover, Rule 3 of the Rules Governing Section 2255 Proceedings
provides that “[a] paper filed by an inmate . . . is timely if
deposited in the institution’s internal mailing system on or before
the last day for filing.”
Regarding motions to amend, Rule 12 of the Rules Governing
Section 2255 Proceedings provides that the Federal Rules of Civil
Procedure “may be applied” “to the extent that they are not
8

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DEVAUGHN v. UNITED STATES

1:14CV173/1:10CR78-1

MEMORANDUM OPINION AND ORDER
GRANTING MOTION FOR LEAVE TO AMEND [DKT. NO. 302],
GRANTING IN PART AND DENYING IN PART § 2255 PETITION
[DKT. NO. 269], CORRECTING SENTENCE, DISMISSING CASE
WITH PREJUDICE, AND DENYING CERTIFICATE OF APPEALABILITY
inconsistent

with

any

statutory

provisions

or

these

rules.”

Because the Rules Governing Section 2255 Proceedings do not provide
for an amendment procedure, Fed. R. Civ. P. 15 applies. United
States v. Pittman, 209 F.3d 314, 316-17 (4th Cir. 2000).
Fed. R. Civ. P. 15(a)(1) provides that
A party may amend its pleading once as a matter
of course within:
(A) 21 days after serving it, or
(B) if the pleading is one to which a
responsive pleading is required, 21 days after
service of a responsive pleading or 21 days
after service of a motion under Rule 12(b),
(e), or (f), whichever is earlier.
Otherwise, “a party may amend its pleading only with the opposing
party’s written consent or the court’s leave.” Fed. R. Civ. P.
15(a)(2). “The court should freely give leave when justice so
requires,” id., and motions to amend “should be denied only when
the amendment would be prejudicial to the opposing party, there
has been bad faith on the part of the moving party, or the amendment
would be futile.” United States v. Shabazz, 509 F. App’x 265, 266

9

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DEVAUGHN v. UNITED STATES

1:14CV173/1:10CR78-1

MEMORANDUM OPINION AND ORDER
GRANTING MOTION FOR LEAVE TO AMEND [DKT. NO. 302],
GRANTING IN PART AND DENYING IN PART § 2255 PETITION
[DKT. NO. 269], CORRECTING SENTENCE, DISMISSING CASE
WITH PREJUDICE, AND DENYING CERTIFICATE OF APPEALABILITY
(4th Cir. 2020) (quoting Johnson v. Oroweat Foods Co., 785 F.2d
503, 509 (4th Cir. 1986)).
Other circuits have held that time-barred claims are futile
unless “[they] relate[] back to the date of the original filing.”
Jacobsen v. Osborne, 133 F.3d 315, 319 (5th Cir. 1998); see also
Anderson v. Bondex Int’l, Inc., 552 F. App’x 153, 156 (3d Cir.
2014). An amendment “relate[s] back to the date of the original
pleading when . . . [it] asserts a claim or defense that arose out
of the conduct, transaction, or occurrence set out . . . in the
original pleading.” Fed. R. Civ. P. 15(c)(1)(B).
A. Section 2255 Petition
DeVaughn’s conviction became final on October 7, 2013, the
date on which the Supreme Court denied his petition for writ of
certiorari (Dkt. No. 308). Although his § 2255 petition was filed
in this Court on October 17, 2014, DeVaughn has asserted that he
“placed [his petition] in the prison mailing system on October 6,
2014” (Dkt. No. 269 at 13). The envelope in which his petition was
mailed appears to bear a postmark date of October 6, 2014, thus
10

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DEVAUGHN v. UNITED STATES

1:14CV173/1:10CR78-1

MEMORANDUM OPINION AND ORDER
GRANTING MOTION FOR LEAVE TO AMEND [DKT. NO. 302],
GRANTING IN PART AND DENYING IN PART § 2255 PETITION
[DKT. NO. 269], CORRECTING SENTENCE, DISMISSING CASE
WITH PREJUDICE, AND DENYING CERTIFICATE OF APPEALABILITY
confirming DeVaughn’s assertion (Dkt. No. 270). Accordingly, as
DeVaughn turned over his petition to prison officials prior to the
filing deadline, the Court concludes that he timely filed his
petition. See Houston, 487 U.S. at 276; McNeill, 523 F. App’x at
982.
B. Memorandum of Law
Although DeVaughn’s memorandum of law in support of his
petition was not filed until December 17, 2014, well after the
filing

deadline

under

the

AEDPA

(Dkt.

No.

283),3

the

Rules

Governing Section 2255 Proceedings do not impose a deadline for
the filing of such memoranda. And even if construed as a motion to
amend, DeVaughn’s memorandum raises no new grounds for relief but
only seeks to clarify previous arguments made in the limited space
provided on the court-approved form. The Court therefore concludes
that DeVaughn’s memorandum of law also was timely filed.

3

Notably, buried in a footnote within his § 2255 petition, DeVaughn
“request[ed] leave to file [a] memorandum of law in support of grounds
at [a] later date” (Dkt. No. 269-1 at 6 n.1).

11

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DEVAUGHN v. UNITED STATES

1:14CV173/1:10CR78-1

MEMORANDUM OPINION AND ORDER
GRANTING MOTION FOR LEAVE TO AMEND [DKT. NO. 302],
GRANTING IN PART AND DENYING IN PART § 2255 PETITION
[DKT. NO. 269], CORRECTING SENTENCE, DISMISSING CASE
WITH PREJUDICE, AND DENYING CERTIFICATE OF APPEALABILITY
C. Motion to Amend § 2255 Petition
On June 14, 2019, DeVaughn moved for leave to amend his § 2255
petition to add as a ground for relief counsel’s failure to object
to the Court’s instructions and verdict form, which failed to
instruct the jury to

determine

a

specific

quantity of drugs

attributable to him (Dkt. No. 302). DeVaughn contends that as a
result of this failure, the 360-month sentence the Court originally
imposed on Count One exceeded the maximum punishment authorized by
law. Id.
Although DeVaughn’s motion was filed after the expiration of
the period to amend as of right, a party may amend its pleadings
with the court’s leave, and “[t]he court should freely give leave
when justice so requires.” Fed. R. Civ. P. 15(a)(2). Here, given
the seriousness of DeVaughn’s allegation, granting him leave to
amend furthers the interests of justice. Moreover, the amendment
is not futile because DeVaughn’s claim arises out of “the conduct,
transaction, or occurrence set out . . . in the original pleading,”
Fed. R. Civ. P. 15(c)(1)(B), and is not separate from DeVaughn’s
12

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DEVAUGHN v. UNITED STATES

1:14CV173/1:10CR78-1

MEMORANDUM OPINION AND ORDER
GRANTING MOTION FOR LEAVE TO AMEND [DKT. NO. 302],
GRANTING IN PART AND DENYING IN PART § 2255 PETITION
[DKT. NO. 269], CORRECTING SENTENCE, DISMISSING CASE
WITH PREJUDICE, AND DENYING CERTIFICATE OF APPEALABILITY
other claims in “both time and type.” United States v. Pittman,
209 F.3d 314, 318 (4th Cir. 2000). Thus, his amendment relates
back to the original filing date. Accordingly, the Court GRANTS
DeVaughn’s motion for leave to amend his § 2255 petition (Dkt. No.
302).
IV. DISCUSSION
DeVaughn

claims

his

attorney’s

ineffectiveness

impacted

multiple phases of his case. After a thorough review of both
DeVaughn’s

claims

and

the

record,

the

Court

concludes

that

counsel’s representation was not ineffective.
To succeed on a claim of ineffective assistance of counsel,
a petitioner must establish, by a preponderance of the evidence,
that (1) his “counsel’s performance was deficient,” and (2) “the
deficient

performance

prejudiced

the

defense.”

Strickland

v.

Washington, 466 U.S. 668, 687 (1984). The petitioner must “satisfy
both prongs, and a failure of proof on either prong ends the
matter.” United States v. Roane, 378 F.3d 382, 404 (4th Cir. 2004).

13

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DEVAUGHN v. UNITED STATES

1:14CV173/1:10CR78-1

MEMORANDUM OPINION AND ORDER
GRANTING MOTION FOR LEAVE TO AMEND [DKT. NO. 302],
GRANTING IN PART AND DENYING IN PART § 2255 PETITION
[DKT. NO. 269], CORRECTING SENTENCE, DISMISSING CASE
WITH PREJUDICE, AND DENYING CERTIFICATE OF APPEALABILITY
To satisfy the first prong, a petitioner must demonstrate
that his counsel’s conduct “fell below an objective standard of
reasonableness
Strickland,

466

.

.

.

U.S.

under
at

prevailing

687–88.

But

professional

“[j]udicial

norms.”

scrutiny

of

counsel’s performance must be highly deferential” because “[i]t is
all

too

tempting

for

a

defendant

to

second-guess

counsel’s

assistance after conviction or adverse sentence, and it is all too
easy for a court, examining counsel’s defense after it has proved
unsuccessful, to conclude that a particular act or omission of
counsel was unreasonable.” Id. at 689. “Because of the difficulties
inherent in making the evaluation, a court must indulge a strong
presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.” Id. To satisfy the second
prong, the petitioner must establish that his counsel’s error was
not harmless, but prejudicial to the outcome of the case. Id. at
694.

14

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DEVAUGHN v. UNITED STATES

1:14CV173/1:10CR78-1

MEMORANDUM OPINION AND ORDER
GRANTING MOTION FOR LEAVE TO AMEND [DKT. NO. 302],
GRANTING IN PART AND DENYING IN PART § 2255 PETITION
[DKT. NO. 269], CORRECTING SENTENCE, DISMISSING CASE
WITH PREJUDICE, AND DENYING CERTIFICATE OF APPEALABILITY
A. Ineffective Assistance of Counsel During Plea Bargaining
DeVaughn contends his attorney failed to advise him that,
pursuant to United States v. Divens, 650 F.3d 343, 344 (4th Cir.
2011), he could have avoided a calculation of his relevant conduct
by pleading guilty to the indictment and signing an acceptance of
responsibility statement (Dkt. Nos. 269 at 4, 283 at 10-12). And
had he been so advised, DeVaughn further contends he would have
pleaded guilty and received a lower sentence (Dkt. No. 283 at 12).
The Government asserts that DeVaughn misconstrues the holding in
Divens and argues he would not have signed an acceptance of
responsibility statement in any event (Dkt. No. 287 at 4-6).
DeVaughn correctly notes that the defendant in Divens had
pleaded guilty without the benefit of a plea agreement and also
had signed an acceptance of responsibility statement. But beyond
that point, his expansive reading of Divens is unjustified. Divens
held that “under [U.S.S.G.] § 3E1.1(b) the Government retains
discretion to refuse to move for an additional one-level reduction
[for acceptance of responsibility], but only on the basis of an
15

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DEVAUGHN v. UNITED STATES

1:14CV173/1:10CR78-1

MEMORANDUM OPINION AND ORDER
GRANTING MOTION FOR LEAVE TO AMEND [DKT. NO. 302],
GRANTING IN PART AND DENYING IN PART § 2255 PETITION
[DKT. NO. 269], CORRECTING SENTENCE, DISMISSING CASE
WITH PREJUDICE, AND DENYING CERTIFICATE OF APPEALABILITY
interest recognized by the guideline itself – not . . . on the
basis of any conceivable legitimate reason.” Id. at 347. Thus,
Divens did not provide, as DeVaughn contends, a unique procedure
whereby a defendant could avoid the calculation of relevant conduct
under

the

sentencing

guidelines,

but

only

narrowed

the

circumstances in which the Government could refuse to move for a
third-level reduction for acceptance of responsibility.
Although he mischaracterizes the impact of Divens, DeVaughn
argues that his counsel failed to inform him of the option of
pleading

to

the

indictment

and

signing

an

acceptance

of

responsibility statement. Even so, he cannot establish prejudice
as a result of such failure.
DeVaughn contends that, because the indictment charged him
with distributing at least 100 grams of heroin, his base offense
level following a plea to the indictment would have been a 26, the
guideline level corresponding to at least 100 grams but less than

16

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DEVAUGHN v. UNITED STATES

1:14CV173/1:10CR78-1

MEMORANDUM OPINION AND ORDER
GRANTING MOTION FOR LEAVE TO AMEND [DKT. NO. 302],
GRANTING IN PART AND DENYING IN PART § 2255 PETITION
[DKT. NO. 269], CORRECTING SENTENCE, DISMISSING CASE
WITH PREJUDICE, AND DENYING CERTIFICATE OF APPEALABILITY
400 grams of heroin (Dkt. No. 283 at 12).4 But in a drug case such
as this, even when a defendant pleads guilty to the indictment,
under U.S.S.G. § 1B1.3 the Court still must calculate his drug
weight or relevant conduct to determine an applicable guideline
range for sentencing.
DeVaughn’s

contention

that

a

plea

agreement

he

rejected

included a stipulation to a base offense level of 28 does not aid
his argument (Dkt. No. 283 at 12). A stipulation to a base offense
level in a proposed plea agreement does not obviate the Court’s
duty under the guidelines to calculate a defendant’s relevant
conduct and determine whether the stipulation is reasonable. Nor
does a guilty plea to the indictment with a signed acceptance of
responsibility statement avoid this requirement.
Here the Court determined that DeVaughn’s relevant conduct
involved

at

least

one

(1)

kilogram

but

less

than

three

(3)

kilograms of heroin (Dkt. No. 202 at 35-36). This placed him at a

4

As it did when it sentenced DeVaughn (Dkt. No. 198 at 17), the Court
has used the 2010 version of the United States Sentencing Guidelines in
its consideration of his habeas arguments.

17

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DEVAUGHN v. UNITED STATES

1:14CV173/1:10CR78-1

MEMORANDUM OPINION AND ORDER
GRANTING MOTION FOR LEAVE TO AMEND [DKT. NO. 302],
GRANTING IN PART AND DENYING IN PART § 2255 PETITION
[DKT. NO. 269], CORRECTING SENTENCE, DISMISSING CASE
WITH PREJUDICE, AND DENYING CERTIFICATE OF APPEALABILITY
base offense level of 32, id., which exceeded both the level 26 he
contends would have applied under Divens and also the level 28
stipulation in the plea agreement he rejected. Accordingly, any
failure by his counsel to advise him about Divens did not result
in prejudice.
In any event, DeVaughn’s argument that he would have signed
an acceptance of responsibility statement cannot be squared with
his statements at sentencing, where he adamantly maintained his
innocence.
Your honor, I feel like everything that’s been
put on me is just – it’s not true and I’ve
been charged with a lot of charges that I did
not commit and the evidence is – it shows that
all this stuff is just all hearsay and me
coming and going to trial with 15 counts of
charges that I didn’t commit and people’s just
boosting up everything that they’re saying
that’s going on in this case, that it’s not
true and I feel like something needs to be
done about it because, I mean, it’s – the
evidence shows – there’s nothing that should
prove that I ever hand anybody anything – any
drugs or that I ever participated with any of
these people at all.
(Dkt. No. 202 at 38-39).
18

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1:14CV173/1:10CR78-1

MEMORANDUM OPINION AND ORDER
GRANTING MOTION FOR LEAVE TO AMEND [DKT. NO. 302],
GRANTING IN PART AND DENYING IN PART § 2255 PETITION
[DKT. NO. 269], CORRECTING SENTENCE, DISMISSING CASE
WITH PREJUDICE, AND DENYING CERTIFICATE OF APPEALABILITY
It was not until years later, during the litigation of this
habeas

petition,

that,

in

March

2020,

DeVaughn

finally

acknowledged he had “never fully taken responsibility for [his]
actions”

(Dkt.

No.

314).

Indeed,

he

had

never

taken

any

responsibility but resolutely had maintained his innocence. Thus,
any contention by DeVaughn now that, had he known of the Divens
option

in

2011,

he

would

have

signed

a

statement

accepting

responsibility for his drug distribution is belied by the record.
Finally, the record also establishes that DeVaughn almost
certainly understood the benefits he would have obtained from a
guilty plea. The Government offered him a plea agreement explicitly
providing that, should he plead guilty and accept responsibility,
it would concur with a two-level reduction for acceptance of
responsibility

and

also

move

for

the

additional

third-level

reduction under U.S.S.G. § 3E1.1 (Dkt. No. 287-1 at 2-3). That
offer unambiguously informed DeVaughn that, under the sentencing
guidelines, he could obtain up to a three (3) level reduction in
his total offense level upon timely entry of a guilty plea. But in
19

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DEVAUGHN v. UNITED STATES

1:14CV173/1:10CR78-1

MEMORANDUM OPINION AND ORDER
GRANTING MOTION FOR LEAVE TO AMEND [DKT. NO. 302],
GRANTING IN PART AND DENYING IN PART § 2255 PETITION
[DKT. NO. 269], CORRECTING SENTENCE, DISMISSING CASE
WITH PREJUDICE, AND DENYING CERTIFICATE OF APPEALABILITY
the face of that potential reduction, DeVaughn rejected the plea
agreement and exercised his right to proceed to trial. His argument
is thus unavailing.
B. Ineffective Assistance of Counsel During Trial
1. Failure to Mitigate During a Natural Disaster
DeVaughn

next

asserts

that

his

trial

counsel

failed

to

mitigate the interruption to the trial caused by a brief earthquake
(Dkt. Nos. 269 at 5, 283 at 12-17). Specifically, he argues counsel
should have requested a continuance or sought to have the jury
questioned

regarding

any

possible

distraction

caused

by

the

interruption (Dkt. No. 283 at 16). The Government responds that
the

earthquake

“lasted

a

second”

and

did

not

disrupt

the

proceedings (Dkt. No. 287 at 7).
Even assuming that counsel’s failure to undertake such a
mitigation strategy was objectively unreasonable, DeVaughn cannot
establish that a continuance or jury inquiry would have altered
the proceedings. Other than his rank speculation that jurors may
have been distracted (Dkt. No. 283 at 16), he offers no compelling
20

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DEVAUGHN v. UNITED STATES

1:14CV173/1:10CR78-1

MEMORANDUM OPINION AND ORDER
GRANTING MOTION FOR LEAVE TO AMEND [DKT. NO. 302],
GRANTING IN PART AND DENYING IN PART § 2255 PETITION
[DKT. NO. 269], CORRECTING SENTENCE, DISMISSING CASE
WITH PREJUDICE, AND DENYING CERTIFICATE OF APPEALABILITY
evidence that the earthquake in any way impacted the outcome of
his case. To the contrary, to ensure there was no distraction, the
Court confirmed for the jurors that the courthouse was safe for
occupancy and instructed them not to independently research the
event (Dkt. No. 200 at 57, 128).5 Accordingly, DeVaughn’s argument
is unpersuasive.
2. Failure to Object to Evidence
DeVaughn next contends that his counsel failed to object to
the lack of authentication of a beer receipt introduced at trial
(Dkt.

No.

283

at

17-27).6

He

also

asserts

that

his

counsel

inadvertently opened the door to questions about his arrest and
failed to adequately rebut the beer receipt. Id. The Government
counters that the beer receipt was properly authenticated under

5

The Court’s comment that members of the jury might read about the
earthquake did not contradict its prohibition against independent
research (Dkt. No. 200 at 128).
6 DeVaughn also argues that his counsel was ineffective for failing to
move to suppress this evidence before trial (Dkt. No. 283 at 25).
However, he does not explain why this was objectively unreasonable or
how the proceedings would have been different had a motion been filed.
The Court will not “construct [DeVaughn’s] legal arguments for him.”
Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993).

21

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DEVAUGHN v. UNITED STATES

1:14CV173/1:10CR78-1

MEMORANDUM OPINION AND ORDER
GRANTING MOTION FOR LEAVE TO AMEND [DKT. NO. 302],
GRANTING IN PART AND DENYING IN PART § 2255 PETITION
[DKT. NO. 269], CORRECTING SENTENCE, DISMISSING CASE
WITH PREJUDICE, AND DENYING CERTIFICATE OF APPEALABILITY
Fed. R. Evid. 901, and points out that any deficiency in the
disputed evidence was outweighed by the testimony of witnesses and
other evidence (Dkt. No. 287 at 7-8).
“To satisfy the requirement of authenticating or identifying
an item of evidence, the proponent must produce evidence sufficient
to support a finding that the item is what the proponent claims it
is.” Fed. R. Evid. 901. “Testimony that an item is what it is
claimed to be” satisfies the authentication requirement. Id.
Here, the Government introduced the testimony of Detective
Rob Miranov (“Detective Miranov”), who had purchased the beer and
obtained

the

receipt.

Detective

Miranov

confirmed

that

the

Government’s Exhibit 31 was a copy of the beer receipt and that
Exhibit 31A was the original receipt (Dkt. No. 201 at 145-46). Any
objection to the introduction of the receipt therefore would have
been meritless, and “[a]n attorney’s failure to raise a meritless
argument [ ] cannot form the basis of a successful ineffective
assistance of counsel claim[.]” United States v. Kimler, 167 F.3d
889, 893 (5th Cir. 1999).
22

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DEVAUGHN v. UNITED STATES

1:14CV173/1:10CR78-1

MEMORANDUM OPINION AND ORDER
GRANTING MOTION FOR LEAVE TO AMEND [DKT. NO. 302],
GRANTING IN PART AND DENYING IN PART § 2255 PETITION
[DKT. NO. 269], CORRECTING SENTENCE, DISMISSING CASE
WITH PREJUDICE, AND DENYING CERTIFICATE OF APPEALABILITY
DeVaughn’s allegation that his attorney improperly opened the
door to questions about his arrest and failed to address the beer
receipt

in

his

closing

argument

is

equally

without

merit.

Specifically, the Government used the beer receipt to link DeVaughn
to the heroin distribution charged in Count Eleven, which took
place in the early morning hours of August 24, 2010. On crossexamination, DeVaughn’s counsel inquired of Detective Miranov as
follows:
DEFENSE COUNSEL: Do you know why we need a
copy of the beer receipt?
MIRANOV: Yes--yes I do.
DEFENSE COUNSEL: Why?
MIRANOV: After your client was arrested, the
receipt was found in his pocket.
DEFENSE
COUNSEL:
original?

What

happened

to

the

MIRANOV: Well I would say these things are–-I
believe when they’re printed, they’re printed
on like heat so after a while the heat turns
the whole piece of paper black so that’s why
it’s good to make copies of that stuff.

23

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DEVAUGHN v. UNITED STATES

1:14CV173/1:10CR78-1

MEMORANDUM OPINION AND ORDER
GRANTING MOTION FOR LEAVE TO AMEND [DKT. NO. 302],
GRANTING IN PART AND DENYING IN PART § 2255 PETITION
[DKT. NO. 269], CORRECTING SENTENCE, DISMISSING CASE
WITH PREJUDICE, AND DENYING CERTIFICATE OF APPEALABILITY
(Dkt. No. 201 at 153). Then, in his closing argument, DeVaughn’s
counsel stated:
DEFENSE COUNSEL: The prosecution has made a
good bit about the money and the beer receipt?
. . .
Permit me to remind you, a defendant doesn’t
have to prove anything.
(Dkt. No. 201 at 245).
Trial counsel’s performance on this issue was objectively
reasonable. While cross-examining Detective Miranov, he attempted
to establish why a copy of the receipt had been made, presumably
in an effort to weaken its probative value. Moreover, in his
closing argument, he minimized the weight of the beer receipt while
also

pointing

out

other

alleged

gaps

or

weaknesses

in

the

Government’s case. Although this strategy ultimately failed, “it
is all too easy for a court, examining counsel’s defense after it
has proved unsuccessful, to conclude that a particular act . . .
was

unreasonable.”

Strickland,

466

U.S.

at

689.

Accordingly,

“indulg[ing] [the] strong presumption that counsel’s conduct falls
24

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DEVAUGHN v. UNITED STATES

1:14CV173/1:10CR78-1

MEMORANDUM OPINION AND ORDER
GRANTING MOTION FOR LEAVE TO AMEND [DKT. NO. 302],
GRANTING IN PART AND DENYING IN PART § 2255 PETITION
[DKT. NO. 269], CORRECTING SENTENCE, DISMISSING CASE
WITH PREJUDICE, AND DENYING CERTIFICATE OF APPEALABILITY
within the wide range of reasonable professional assistance,” id.,
the Court concludes that the attempts of DeVaughn’s attorney to
minimize

the

impact

of

the

beer

receipt

were

objectively

reasonable.
It is notable that DeVaughn focuses his arguments exclusively
on the beer receipt while ignoring the substantial evidence linking
him to the specific transaction charged in Count Eleven. For
example, one witness, Julie Lang (“Lang”), testified that she had
arranged to purchase heroin from DeVaughn in exchange for beer and
money

(Dkt.

No.

200

at

45-53).

Moreover,

Detective

Miranov

testified that he had purchased Corona beer for Lang to use in the
transaction (Dkt. No. 201 at 144-47), and Sergeant Todd Forbes
(“Sergeant Forbes”) testified that he had assisted Lang in planning
the controlled buy. Id. at 335-39. Additionally, Sergeant Forbes
testified that when DeVaughn was arrested he possessed a receipt
for beer, a Corona beer bottle cap, and U.S. currency previously

25

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DEVAUGHN v. UNITED STATES

1:14CV173/1:10CR78-1

MEMORANDUM OPINION AND ORDER
GRANTING MOTION FOR LEAVE TO AMEND [DKT. NO. 302],
GRANTING IN PART AND DENYING IN PART § 2255 PETITION
[DKT. NO. 269], CORRECTING SENTENCE, DISMISSING CASE
WITH PREJUDICE, AND DENYING CERTIFICATE OF APPEALABILITY
provided for controlled buys.7 Id. at 346-49. Given the weight of
this

evidence,

performance,

DeVaughn

even

if

cannot

establish

objectively

that

his

unreasonable,

counsel’s

resulted

in

prejudice.
3. Failure to Challenge Jury Instructions
DeVaughn next argues that his counsel was ineffective because
he failed to request a limiting instruction regarding juvenile coconspirators (Dkt. Nos. 269 at 5, 283 at 28-29). Additionally, he
asserts that, as to Count One, his counsel failed to request a
jury determination of the specific quantity of drugs attributable
to him, rather than to the entire conspiracy (Dkt. No. 302 at 5).
The Government responds that, based on the testimony of non-minors,
DeVaughn was properly convicted (Dkt. No. 287 at 8).
a.
As to his first argument, DeVaughn appears to contend that
his counsel should have requested an instruction requiring the

7

The testimony does not clearly establish whether the U.S. currency was
from the controlled buy that involved the beer receipt or from another
controlled buy conducted by Lang later that same day.

26

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DEVAUGHN v. UNITED STATES

1:14CV173/1:10CR78-1

MEMORANDUM OPINION AND ORDER
GRANTING MOTION FOR LEAVE TO AMEND [DKT. NO. 302],
GRANTING IN PART AND DENYING IN PART § 2255 PETITION
[DKT. NO. 269], CORRECTING SENTENCE, DISMISSING CASE
WITH PREJUDICE, AND DENYING CERTIFICATE OF APPEALABILITY
jury to find that he knew certain co-conspirators were minors, and
another instruction prohibiting the jury from considering any
minor’s actions. Both contentions are without merit. In the first
place,

in

order

to

convict

DeVaughn

of

the

conspiracy,

the

Government was not required to prove that he knew minors were
involved. United States v. Camara, 908 F.3d 41, 46 (4th Cir. 2018)
(“The existence of the conspiracy, rather than the particular
identity of the conspirators, is the essential element of the
crime.” (quoting United States v. Am. Waste Fibers Co., 809 F.2d
1044, 1046 (4th Cir. 1987)).
Secondly, while in certain circumstances a Court may limit
consideration

of

a

defendant’s

pre-majority

activity,

United

States v. Spoone, 741 F.2d 680, 687-88 (4th Cir. 1984), those are
not present where, as here, DeVaughn and all his co-defendants
were adults.8 Even more to the point, consideration of DeVaughn’s
dealings with minors was necessary where Count Fifteen charged him

8

The true name of one of DeVaughn’s co-defendants was apparently never
learned, and the charges against that co-defendant were dismissed on
September 9, 2014 (Dkt. No. 254).

27

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DEVAUGHN v. UNITED STATES

1:14CV173/1:10CR78-1

MEMORANDUM OPINION AND ORDER
GRANTING MOTION FOR LEAVE TO AMEND [DKT. NO. 302],
GRANTING IN PART AND DENYING IN PART § 2255 PETITION
[DKT. NO. 269], CORRECTING SENTENCE, DISMISSING CASE
WITH PREJUDICE, AND DENYING CERTIFICATE OF APPEALABILITY
with using a minor to distribute a controlled substance. 21 U.S.C.
§ 861 (“It shall be unlawful for any person at least eighteen years
of age to knowingly and intentionally . . . employ, hire, use,
persuade, induce, entice, or coerce, a person under eighteen years
of age to violate any provision of this subchapter or subchapter
II”). Accordingly, because such actions had to be considered by
the

jury

in

their

deliberations

regarding

Count

Fifteen,

DeVaughn’s arguments lack legal merit and cannot form the basis of
an ineffective assistance of counsel claim. United States v.
Kimler, 167 F.3d at 893.
b.
DeVaughn’s argument that the Court failed to instruct the
jury to determine the amount of drugs attributable to him in the
conspiracy, and erroneously increased his maximum sentence from 20
to 40 years as a result, has merit. In support of this argument,
he relies on United States v. Collins, 415 F.3d 304 (4th Cir.
2005), which held that the applicable maximum sentence under 21
U.S.C. § 841(b) “is determined by a consideration of the amount of
28

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DEVAUGHN v. UNITED STATES

1:14CV173/1:10CR78-1

MEMORANDUM OPINION AND ORDER
GRANTING MOTION FOR LEAVE TO AMEND [DKT. NO. 302],
GRANTING IN PART AND DENYING IN PART § 2255 PETITION
[DKT. NO. 269], CORRECTING SENTENCE, DISMISSING CASE
WITH PREJUDICE, AND DENYING CERTIFICATE OF APPEALABILITY
narcotics attributable to that defendant.” Id. at 313 (emphasis
added). Indeed, in Collins, the Fourth Circuit held that a district
court erred by increasing the applicable maximum sentence without
instructing the jury to determine the drug quantity attributable
to a particular defendant. 415 F.3d at 312-13. Moreover, under
Pinkerton v. United States, 328 U.S. 640 (1946), the drug quantity
attributable to a defendant within a conspiracy must be “within
the scope of the defendant’s agreement and reasonably foreseeable
to the defendant.” United States v. Ferguson, 245 F. App’x 233,
235-36 (4th Cir. 2007).
Here, none of DeVaughn’s counts of conviction “require[d] a
threshold drug quantity for criminal liability,” Ferguson, 245 F.
App’x at 236 n.2; Collins, 415 F.3d at 314. As to Count One, the
Court’s jury instructions and verdict form asked the jury to
determine if 100 or more grams of heroin were involved in the total
conspiracy, but failed to ask it to find a specific drug quantity
attributable to DeVaughn (Dkt. Nos. 130 at 3, 133 at 22-23). Had
the jury attributed 100 or more grams of heroin to DeVaughn,
29

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DEVAUGHN v. UNITED STATES

1:14CV173/1:10CR78-1

MEMORANDUM OPINION AND ORDER
GRANTING MOTION FOR LEAVE TO AMEND [DKT. NO. 302],
GRANTING IN PART AND DENYING IN PART § 2255 PETITION
[DKT. NO. 269], CORRECTING SENTENCE, DISMISSING CASE
WITH PREJUDICE, AND DENYING CERTIFICATE OF APPEALABILITY
pursuant to 21 U.S.C. § 841(b)(1)(B), his maximum punishment on
Count One would have increased from 20 to 40 years of imprisonment.
But absent such a finding, his statutory maximum punishment on
Count

One

remained

20

years.

21

U.S.C.

§ 841(b)(1)(C).

Consequently, because the Court sentenced DeVaughn to 30 years on
Count One, its sentence was not authorized by law and must be
corrected.
Despite this sentencing error as to Count One, Count Fifteen
charged DeVaughn with using minors to distribute heroin. And the
penalty for such an offense is “twice the maximum punishment
otherwise authorized.” 21 U.S.C. § 861(b). Therefore, DeVaughn’s
conviction on Count Fifteen increased his maximum punishment from
20 years to 40 years. 21 U.S.C. §§ 841(b)(1)(C), 861(b).
At sentencing, the Court imposed concurrent sentences of 30
years

of

imprisonment

on

each

of

Counts

One

and

Fifteen.

Consequently, given DeVaughn’s 30-year sentence on Count Fifteen,
a reduction of his sentence on Count One to 20 years will not
reduce his overall term of imprisonment. Therefore, his counsel’s
30

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DEVAUGHN v. UNITED STATES

1:14CV173/1:10CR78-1

MEMORANDUM OPINION AND ORDER
GRANTING MOTION FOR LEAVE TO AMEND [DKT. NO. 302],
GRANTING IN PART AND DENYING IN PART § 2255 PETITION
[DKT. NO. 269], CORRECTING SENTENCE, DISMISSING CASE
WITH PREJUDICE, AND DENYING CERTIFICATE OF APPEALABILITY
failure to object to the erroneous jury instructions and verdict
form did not result in prejudice.
Although counsel’s failure to object cannot form the basis
for

an

ineffective

assistance

of

counsel

claim,

the

Court

nevertheless must correct its erroneous sentence “in excess of the
maximum authorized by law.” 28 U.S.C. § 2255(a). And though it is
authorized to hold a resentencing hearing to correct its error, it
is not obligated to do so where, as here, the defendant’s sentence
will be made less onerous. United States v. Hadden, 475 F.3d 652,
668-69 (4th Cir. 2007) (citing United States v. Erwin, 277 F.3d
727, 731 (5th Cir. 2001) (affirming district court’s decision to
modify

prisoner’s

sentence

to

account

for

vacated

conviction

without conducting a resentencing because the modification was “a
downward correction of [the prisoner’s] illegal sentence”); United
States v. Moree, 928 F.2d 654, 655-56 (5th Cir. 1991) (“We have
long

recognized

the

distinction

between

proceedings

in

the

district court that modify an existing sentence and those that
impose a new sentence after the original sentence has been set
31

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DEVAUGHN v. UNITED STATES

1:14CV173/1:10CR78-1

MEMORANDUM OPINION AND ORDER
GRANTING MOTION FOR LEAVE TO AMEND [DKT. NO. 302],
GRANTING IN PART AND DENYING IN PART § 2255 PETITION
[DKT. NO. 269], CORRECTING SENTENCE, DISMISSING CASE
WITH PREJUDICE, AND DENYING CERTIFICATE OF APPEALABILITY
aside. In the former instance, [a resentencing with the defendant
present] usually is not required,[ ] unless the modification makes
the sentence more onerous.”)). Accordingly, because correcting
DeVaughn’s sentence on Count One will not reduce his total term of
imprisonment, a resentencing hearing is unnecessary.
To

sum

up,

absent

a

jury

determination

that

DeVaughn

distributed 100 or more grams of heroin in the conspiracy, his
statutory maximum sentence on Count One was capped at 240 months.
21

U.S.C.

§ 841(b)(1)(C).

modification

of

his

And

sentence

on

despite
Count

the
One

Court’s
to

288

previous
months

of

imprisonment following a retroactive guideline amendment9 (Dkt.
No. 285), it must further reduce that sentence to the statutory
maximum punishment of 240 months. But because the Court previously
reduced DeVaughn’s 360-month sentence on Count Fifteen to 288
months (again because of a retroactive guideline amendment) (Dkt.
Nos. 188 at 2, 285), his total punishment of 288 months of
imprisonment remains unchanged.

9

See supra p.3 note 2.

32

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DEVAUGHN v. UNITED STATES

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MEMORANDUM OPINION AND ORDER
GRANTING MOTION FOR LEAVE TO AMEND [DKT. NO. 302],
GRANTING IN PART AND DENYING IN PART § 2255 PETITION
[DKT. NO. 269], CORRECTING SENTENCE, DISMISSING CASE
WITH PREJUDICE, AND DENYING CERTIFICATE OF APPEALABILITY
C. Ineffective Assistance of Counsel During Sentencing and On
Appeal
Finally, DeVaughn asserts that both his trial and appellate
counsel were ineffective for failing to argue that a defendant
convicted under 21 U.S.C. § 861 is not subject to enhancements
under the sentencing guidelines for his leadership role or use of
a minor (Dkt. No. 269 at 7). The Government contends that the Court
properly calculated the guidelines (Dkt. No. 287 at 6-7).
Because DeVaughn raised both of these grounds for relief on
appeal (Dkt. No. 215 at 6-7), they cannot be “recast[] under the
guise of a collateral attack.” Boeckenhaupt v. United States, 537
F.2d 1182, 1183 (4th Cir. 1976). Moreover, DeVaughn concedes that
his trial counsel objected to a leadership role enhancement at
sentencing (Dkt. Nos. 198 at 38, 269-1 at 5). Accordingly, even if
DeVaughn were not barred from raising these issues in his habeas
petition under Boeckenhaupt, his counsel was not ineffective.
Strickland, 466 U.S. at 687–88.
In

order

to

avoid

the

presumption

established

in

Boeckenhaupt, DeVaughn must point to an intervening change of law
33

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DEVAUGHN v. UNITED STATES

1:14CV173/1:10CR78-1

MEMORANDUM OPINION AND ORDER
GRANTING MOTION FOR LEAVE TO AMEND [DKT. NO. 302],
GRANTING IN PART AND DENYING IN PART § 2255 PETITION
[DKT. NO. 269], CORRECTING SENTENCE, DISMISSING CASE
WITH PREJUDICE, AND DENYING CERTIFICATE OF APPEALABILITY
in order to prevail on these claims. Davis v. United States, 417
U.S. 333, 342 (1974). In support, he relies on United States v.
Stevenson,
leadership

a

case

in

which

enhancement,

the

when

Seventh

Circuit

considered

held

together

that

with

a
an

adjustment for use of a minor, amounts to “double counting.” 6
F.3d 1262, 1270 (7th Cir. 1993). But the Seventh Circuit expressly
overruled Stevenson in United States v. Vizcarra, 668 F.3d 516,
525

(7th

Cir.

2012),

and

the

Fourth

Circuit

never

adopted

Stevenson’s reasoning. See United States v. Reevey, 364 F.3d 151,
158 (4th Cir. 2004) (“Double counting is generally authorized
unless the Guidelines expressly prohibit it.”). Consequently, the
Court properly enhanced DeVaughn’s guidelines and any failure by
counsel to object at sentencing or raise the issue on appeal cannot
be considered ineffective assistance.
V. CONCLUSION
For the reasons discussed, the Court
•

GRANTS DeVaughn’s motion to for leave to amend (Dkt. No. 302);

34

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DEVAUGHN v. UNITED STATES

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MEMORANDUM OPINION AND ORDER
GRANTING MOTION FOR LEAVE TO AMEND [DKT. NO. 302],
GRANTING IN PART AND DENYING IN PART § 2255 PETITION
[DKT. NO. 269], CORRECTING SENTENCE, DISMISSING CASE
WITH PREJUDICE, AND DENYING CERTIFICATE OF APPEALABILITY
•

GRANTS IN PART and DENIES IN PART his § 2255 petition (Dkt.
No. 269);

•

DIRECTS the probation officer to prepare an amended judgment
in DeVaughn’s criminal case, Criminal Action No. 1:10CR78, to
reflect his corrected sentence of 240 months of imprisonment
as to Count One; and

•

DISMISSES this case WITH PREJUDICE.
It is so ORDERED.
The Clerk SHALL enter a separate judgment order in favor of

the United States, transmit copies of this Order and the judgment
order to DeVaughn by certified mail, return receipt requested, and
to counsel of record and the United States Probation Office for
the Northern District of West Virginia by electronic means, and
strike this case from the Court’s active docket.
VI. CERTIFICATE OF APPEALABILITY
Pursuant

to

Rule

11(a)

of

the

Rules

Governing

§

2255

Proceedings, the district court “must issue or deny a certificate
of appealability when it enters a final order adverse to the
35

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DEVAUGHN v. UNITED STATES

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MEMORANDUM OPINION AND ORDER
GRANTING MOTION FOR LEAVE TO AMEND [DKT. NO. 302],
GRANTING IN PART AND DENYING IN PART § 2255 PETITION
[DKT. NO. 269], CORRECTING SENTENCE, DISMISSING CASE
WITH PREJUDICE, AND DENYING CERTIFICATE OF APPEALABILITY
applicant” in such cases. If the court denies the certificate,
“the parties may not appeal the denial but may seek a certificate
from the court of appeals under Federal Rule of Appellate Procedure
22.” Rules Governing Section 2255 Proceedings 11(a).
The Court finds it inappropriate to issue a certificate of
appealability in this matter because DeVaughn has not made a
“substantial showing of the denial of a constitutional right.” See
28 U.S.C. § 2253(c)(2). A petitioner satisfies this standard by
demonstrating

that

reasonable

jurists

would

find

that

any

assessment of the constitutional claims by the district court is
debatable or wrong and that any dispositive procedural ruling by
the

district

court

is

likewise

debatable.

See

Miller–El

v.

Cockrell, 537 U.S. 322, 336–38 (2003). Upon review of the record,
the Court concludes that DeVaughn has failed to make the requisite
showing, and DENIES issuing a certificate of appealability.
DATED: August 17, 2022
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE
36