Brown v. USA

Filing 9

ORDER ADOPTING REPORT AND RECOMMENDATION: It is ORDERED that Magistrate Joel's 5 Report and Recommendation is adopted; Petitioner's Objections are overruled; Petitioner's 1 Motion to Vacate, Set Aside or Correct Sentence (2255) i s denied. This case is dismissed with prejudice and stricken from the active docket. The Clerk shall enter a separate judgment order in favor of Respondent. This Court denies a certificate of appealability. Signed by Chief Judge John Preston Bailey on 8/14/13. (cnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
ELKINS
JEREMY TODD BROWN,
Petitioner,
v.

Civil Action No. 2:12-CV-70
Criminal Action No. 2:09-CR-14-1
(Bailey)

UNITED STATES OF AMERICA,
Respondent.

ORDER ADOPTING REPORT AND RECOMMENDATION
On this day, the above-styled matter came before this Court for consideration of the
Report and Recommendation of United States Magistrate Judge David J. Joel [Civ. Doc.
5; Crim. Doc. 245]. Pursuant to this Court’s Local Rules, this action was referred to
Magistrate Judge Joel for submission of a proposed report and recommendation (“R&R”).
Magistrate Judge Joel filed his R&R on May 30, 2013 [Civ. Doc. 5; Crim. Doc. 245]. In that
filing, the magistrate judge recommended that this Court deny the petitioner’s Motion Under
28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence [Civ. Doc. 1; Crim. Doc. 202;
Crim. Doc. 217] and dismiss this case with prejudice because the petitioner “has failed to
meet the two prongs of Strickland”1 [Civ. Doc 5 at 9, 27; Crim. Doc. 245 at 9, 27].
Pursuant to 28 U.S.C. § 636(b)(1)(c), this Court is required to make a de novo
review of those portions of the magistrate judge’s findings to which objection is made.
However, the Court is not required to review, under a de novo or any other standard, the

1

Strickland v. Washington, 466 U.S. 668 (1984).
1

factual or legal conclusions of the magistrate judge as to those portions of the findings or
recommendation to which no objections are addressed. Thomas v. Arn, 474 U.S. 140,
150 (1985). In addition, failure to file timely objections constitutes a waiver of de novo
review and the right to appeal this Court's Order. 28 U.S.C. § 636(b)(1); Snyder v.
Ridenour, 889 F.2d 1363, 1366 (4th Cir. 1989); United States v. Schronce, 727 F.2d 91,
94 (4th Cir. 1984). Here, objections to Magistrate Judge Joel’s R&R were due within
fourteen (14) days of receipt, pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the
Federal Rules of Civil Procedure. Before the deadline for objections, counsel for the
petitioner filed a Motion to Enlarge Time for Filing Objections to Report and
Recommendation of Magistrate Judge until June 28, 2013 [Crim. Doc. 246] so that a
transcript of a proceeding before the magistrate judge could be obtained in preparation for
the objections. On June 6, 2013, this Court granted the motion for an extension of time,
providing counsel for the petitioner until June 28, 2013, to file objections on the petitioner’s
behalf [Crim. Doc. 247]. On June 19, 2013, counsel for the petitioner filed objections to the
R&R [Crim. Doc. 250]. Accordingly, this Court will review the portions of the R&R to which
objection was made under a de novo standard of review. The remaining portions of the
R&R will be reviewed for clear error.
I. Factual and Procedural History
A. Conviction and Sentence
On June 16, 2009, the Grand Jury indicted the petitioner on four counts of a twentysix count Indictment involving two defendants [Crim. Doc. 4]. Count One charged the
petitioner and co-defendant Bruce Alan Davidson, Jr. with conspiracy to manufacture

2

methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 846 [Id. at 1].
Count Two charged the petitioner and co-defendant with possession of material used in the
manufacture of methamphetamine, in violation of 21 U.S.C. §§ 843(a)(6), 843(d)(2) and 18
U.S.C. § 2 [Id. at 2]. Count Three charged the petitioner and co-defendant with possession
of pseudoephedrine to be used in the manufacture of methamphetamine in violation of 21
U.S.C. § 841(c)(2) and 18 U.S.C. § 2 [Id. at 3]. Count Four charged the petitioner and codefendant with possession of material used in the manufacture of methamphetamine, in
violation of 21 U.S.C. §§ 843(a)(6), 843(d)(2) [Id. at 4]. On July 21, 2009, the petitioner
was arraigned on those charges and released on an Order Setting Conditions of Release
[Crim. Doc. 36]. On August 4, 2009, the petitioner filed a Motion to Suppress Evidence
[Crim. Doc. 41], which he later withdrew on August 13, 2009, because he was not a
resident of the home that was searched at the time of the search and therefore, he lacked
standing to file that Motion [Crim. Doc. 48]. On August 12, 2009, the Grand Jury returned
a superseding Indictment against the petitioner charging him with four counts of a thirty
count Indictment involving two defendants [Crim. Doc. 45]. In the superseding Indictment,
the petitioner was the sole defendant named in Counts Two, Three, and Four, while in the
original Indictment, his co-defendant had been named in those counts also [Id. at 1-4].
On September 23, 2009, after a two day trial, the petitioner was convicted of Counts
One, Two, and Three and found not guilty as to Count Four [Crim. Doc. 114]. At that time,
the Government made an oral motion to revoke the petitioner’s bond, which was granted
[Crim. Doc. 118]. The petitioner was represented by Federal Public Defender Brian
Kornbrath during the trial proceedings.

3

On March 8, 2010, the petitioner appeared before the undersigned for sentencing.
The petitioner was sentenced to a term of 360 months imprisonment concurrent with
Counts Two and Three, followed by a five-year term of supervised release on Count One;
to a term of 120 months concurrent with Counts One and Three, followed by three years
of supervised release on Count Two; and to a term of 240 months concurrent with Counts
One and Two, followed by a three-year term of supervised release on Count Three [Crim.
Doc. 136].
B. Direct Appeal
The petitioner pursued a direct appeal to the United States Court of Appeals for the
Fourth Circuit (“Fourth Circuit”) On appeal, the petitioner asserted that (1) a defense
witness was called to testify out of order, before the Government finished presenting its
case; (2) the district court clearly erred in finding that an obstruction of justice adjustment
applied; and (3) the $100 special assessment in each count of conviction was an excessive
fine that violated the Eight Amendment and Origination Clause of the Constitution [Crim.
Doc. 162 at 2]. The Fourth Circuit affirmed the petitioner’s conviction and held that the
Court did not commit plain error in determining that the petitioner obstructed justice, and
that the Court did not plainly err in imposing the special assessment [Id. at 9]. The
petitioner filed a petition for a writ of certiorari in the United States Supreme Court, which
was denied on October 3, 2011. Brown v. United States, 132 S.Ct. 339 (2011).

C. Motion Under 28 U.S.C. § 2255
On October 1, 2012, the petitioner filed a pro se Motion Under 28 U.S.C. § 2255 to
Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody [Civ. Doc. 1; Crim.
4

Doc. 202], which was later refiled on the court-approved form [Crim. Doc. 217] after newlyretained counsel for the petitioner requested and received leave from the Court to file a
corrected motion [Crim. Doc. 211; Crim. Doc. 215]. In the petition, the petitioner raises five
claims of ineffective assistance of counsel [Crim. Doc. 217 at 5-15]. In support of these
claims, the petitioner alleges that his trial counsel was ineffective for the following reasons:
(1) failing to file a motion to suppress evidence; (2) failing to object to the verdict form
because it did not contain language informing the jury that the drug weights must have
been within the foreseeable scope of the conspiratorial agreement; (3) failing to object to
the jury instructions because they did not inform the jury that any element of an offense that
was found based upon inferences must have been based upon facts established beyond
a reasonable doubt; (4) failing to request a jury instruction that the jury must find either a
conspiracy to manufacture or a conspiracy to possess with the intent to distribute or a
conspiracy for both manufacture and distribution; (5) failing to object to the three level
enhancement for substantial risk of harm to human life or the environment; (6) failing to
object to the drug quantity on the verdict form because the amount consumed by the
petitioner should not have been included in the drug quantity; (7) failing to raise the “rule
against nationwide disparity under 3553(a)(6)”; and (8) informing the petitioner that he
would receive a maximum possible sentence of twenty-five years [Id.].
After conducting an evidentiary hearing on May 15, 2013, the magistrate judge
entered his R&R on May 30, 2013 [Civ. Doc. 5; Crim. Doc. 245]. In the R&R, the
magistrate judge recommended that this Court deny the petitioner’s § 2255 petition for
failure to establish a claim of ineffective assistance of counsel with regard to his trial

5

attorney’s performance [Id. at 9, 27]. On June 19, 2013, counsel for the petitioner filed
objections to the R&R [Crim. Doc. 250].
II. Applicable Law
“The benchmark for judging any claim of ineffective assistance of counsel must be
whether counsel’s conduct so undermined the proper functioning of the adversarial process
that the trial cannot be relied on as having produced a just result.”

Strickland v.

Washington, 466 U.S. 668, 686 (1984). The defendant must show that (1) the attorney’s
performance was deficient and (2) the deficient performance prejudiced the defendant [Id.
at 687].

For the first prong of the test, a “defendant must show that counsel’s

representation fell below an objective standard of reasonableness.” Id. at 687-88. For the
second prong of the test, a defendant must “show that there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have been
different.” Id. at 694. If a defendant cannot satisfy the prejudice prong of the ineffective
assistance of counsel test, a court does not need to address the performance prong. Fields
v. Attorney General of State of Md., 956 F.2d 1290 (4th Cir. 1992).
III. Discussion
The magistrate judge recommended that this Court deny and dismiss the petitioner’s
Motion Under 28 U.S.C. § 2255 [Crim. Doc. 217; Civ. Doc. 1] because the petitioner failed
to meet the two prongs of Strickland necessary to demonstrate any claim of ineffective
assistance of counsel [Crim. Doc. 245; Civ. Doc. 5]. The petitioner raised seven objections
to the R&R [Crim. Doc. 250]. Each will be responded to in the order it was raised, with the
exception of the second objection that will be responded to last as it objects to the

6

magistrate judge’s conclusions in general.
A. Quantities of Controlled Substances
The petitioner objects to the magistrate judge’s conclusion that his trial attorney
could not have anticipated that the jury would find higher drug quantities that would raise
the sentencing guidelines an additional two levels [Crim. Doc. 250 at 1-2]. In particular, the
petitioner argues that the facts used to determine the drug quantity were not contained in
the Indictment and found by a jury, but were the product of an estimate made by the
probation officer [Id. at 2]. However, a probation officer’s estimation is part of the proper
procedure for calculating the likes of drug quantities for the sentencing purposes. Fed. R.
Crim. P. 32(c) requires the probation officer to “conduct a presentence investigation and
submit a report to the court before it imposes sentence,” which includes reviewing the trial
proceedings and interviewing the defendant. This is also reflected in the United States
Sentencing Commission Guidelines Manual § 6A1.1. Rule 32 further describes what the
presentence report must contain, including calculation of “the defendant’s offense level and
criminal history category” and “any factor relevant to the appropriate kind of sentence or
the appropriate sentence within the applicable sentencing range.” Fed. R. Crim. P.
32(d)(1)(C), (D). Moreover, Rule 32 gives the parties fourteen (14) days after receiving the
presentence report to object to it. Fed. R. Crim. P. 32(f). The lack of objections–other than
that which was overruled by the undersigned at sentencing–to the presentence report on
behalf of the petitioner suggests his acceptance of the content of the report. As such, the
magistrate judge’s reliance on the independent analysis by the probation officer was not
erroneous.

7

Furthermore, the case cited by the petitioner in the objection as support for his
contention that reliance on the probation officer’s analysis was done in error is
distinguishable from this case. In Alleyne, the Court held that any fact that increases the
mandatory minimum sentence is an “element” that must be submitted to the jury. Alleyne
v. United States, 133 S.Ct. 2151, 2155 (2013). Here, unlike in Alleyne, there are no
concluded-upon facts or elements of a crime that the jury did not find beyond a reasonable
doubt. In fact, the higher drug quantities that ultimately led to the two level increase in the
sentencing guidelines were recommended by the probation officer. The heightened drug
quantity did not change the crime or the mandatory minimum; it merely led to an increase
in the guideline level that could have been mitigated by the likes of a lack of an obstruction
of justice adjustment. The petitioner’s assertion that the Base Offense Level would have
been 26 if the “verdict form was correct” is unsubstantiated. Accordingly, this Court hereby
OVERRULES the petitioner’s objection on this issue.
B. Objections to Standards Applied to Claims of Ineffective Assistance of
Counsel Claims
The petitioner objects to the standards used to evaluate a claim of ineffective
assistance of counsel and provides those standards that he argues are appropriate.
1. At Trial
The petitioner cites a variation of the Strickland two-part test that is only slightly
different from that which was described by the magistrate judge in the R&R as the
appropriate test for evaluating a claim of ineffective assistance based on inadequate legal
assistance [Crim. Doc. 250 at 5]. He claims that this two-part test includes a showing that
(1) the defense attorney made an error or errors and (2) the error(s) prejudiced some
8

aspect of the case [Id.]. He then describes some of the nuances articulated in Strickland,
among other cases [Id.].
Strickland defines its two-part test as necessitating a showing that (1) counsel’s
performance was deficient and involved errors so serious that counsel was not functioning
as the “counsel” guaranteed by the Sixth Amendment and (2) the deficient performance
prejudiced the defense in that the errors were so serious as to deprive the defendant of a
fair trial with a reliable result. Strickland, 466 U.S. at 687. This is the test laid out by the
magistrate judge in his R&R [Crim. Doc. 245 at 10]. Additionally, both the magistrate
judge’s and the petitioner’s articulation of the ineffective assistance claim test’s details are
appropriate.2
2. During Plea Negotiations
The petitioner additionally attempts to lay out the “appropriate test” for ineffective
assistance at the plea bargaining stage.

The material discussed in this section is

agreeable; however, it does not describe a standard of review. The petitioner merely
asserts the importance of effective assistance of counsel during plea negotiations. The
Strickland two-part test is appropriate for determining ineffective assistance of counsel at
the plea bargaining stage as well. Johnson v. United States, 860 F.Supp.2d 663, 779
(N.D. Iowa 2012) (citing United States v. Regenos, 405 F.3d 691, 693 (8th Cir. 2005)).

2

See generally, Strickland v. Washington, 466 U.S. 668 (1984), Fields v. Att’y
Gen. of Md., 956 F.2d 1290 (4th Cir. 1992), Hunt v. Lee, 291 F.3d 284 (4th Cir. 2002),
Sexton v. French, 163 F.3d 874 (4th Cir. 1998), Harrington v. Richter, 131 S.Ct. 770
(2011), Richardson v. Branker, 668 F.3d 128 (4th Cir. 2012), Gray v. Branker, 529 F.3d
220 (4th Cir. 2008).
9

3. At Sentencing
This Court does not disagree that criminal defendants have “the right to effective
assistance at sentencing” as asserted by the petitioner [Crim. Doc. 250 at 8]. However, like
the petitioner’s assertions pertaining to effective assistance during plea negotiations, this
is not a standard of review.
The Strickland standard of review as delineated by the magistrate judge in his R&R
is the appropriate standard of review for ineffective assistance claims. Accordingly, the
petitioner’s objection on this issue is hereby OVERRULED.
C. Failure to File Motion to Suppress
The petitioner argues that trial counsel was ineffective for “withdrawing or failing to
litigate the motion to suppress evidence seized . . . pursuant to a search warrant” [Crim.
Doc. 250 at 8]. He states that trial counsel’s reasoning is incorrect because the law says
that the petitioner had the right to use and did use the searched property and thus had
standing to contest the search [Id.]. See United States v. Gray, 491 F.3d 138, 144 (4th
Cir. 2007). The petitioner also claims that the motion to suppress would have successfully
restrained the physical evidence because the warrant was “bare bones” and not executed
in good faith [Crim. Doc. 250 at 10-11].
In putting the petitioner’s objection to the Strickland two-part test, this Court finds
that the prejudice prong is not satisfied. The withdrawal of the motion to suppress did not
have an effect on the outcome of the proceeding. There has been no showing of a
reasonable probability that, but for the withdrawal of the motion to suppress, the outcome
of the proceeding would have been different. Strickland, 466 U.S. at 694.

10

Even if the motion to suppress had not been withdrawn, it is likely that it would have
been unsuccessful. Failure to raise a losing argument or pursue a futile motion to suppress
does not constitute ineffective assistance of counsel. Floyd v. United States, 2008 WL
3925841 (D.S.C. August 26, 2008). A search warrant is not to be issued based on a “bare
bones” affidavit, or one containing wholly conclusory statements lacking the facts and
circumstances from which a magistrate judge could independently determine probable
cause. United States v. Doyle, 650 F.3d 460, 470 (4th Cir. 2011); see also United States
v. Laury, 985 F.2d 1293, 1311 n. 23 (5th Cir. 1993). Probable cause “exists where the
known facts and circumstances are sufficient to warrant a man of reasonable prudence in
the belief that contraband or evidence of a crime will be found” in a given location. Ornelas
v. United States, 517 U.S. 690, 696 (1996). If the affidavit is insufficient to establish
probable cause, the Leon good faith exception3 may apply. Doyle, 650 F.3d at 470.
However, suppression still is an appropriate remedy if the warrant-issuing judge was
“misled by information in an affidavit that the affiant knew was false or would have known
was false except for his reckless disregard of the truth.” Leon, 468 U.S. at 923.
Here, the petitioner has not demonstrated that suppression of evidence obtained
pursuant to the search warrant would have been appropriate if the motion had not been
withdrawn. The petitioner claims that the search warrant was “bare bones” and insufficient
to support probable cause [Crim. Doc. 250 at 11]. However, the search warrant appears

3

The good faith exception allows evidence collected in violation of privacy rights (as
interpreted by the Fourth Amendment) to be admitted at trial if the officer acting in good
faith relied upon a defective search warrant. United States v. Leon, 468 U.S. 897 (1984).

11

to have been issued based on information given by Deputy Mike Coffman that was
sufficient to establish probable cause. Coffman saw the vehicle that was involved in the
traffic stop leave the petitioner’s driveway just before the stop, observed a strong chemical
odor that seemed to be the same as that in “prior clandestine labs,” was told that the third
subject in the car with a backpack had been at the petitioner’s residence, observed that
same strong chemical odor on the third subject who had come from the petitioner’s
residence, and located packs of Sudafed and containers of clear liquid in the car, both of
which are used in the making of methamphetamine [Crim. Doc. 40-1]. This description
does not contain merely conclusory statements and is sufficient to establish an independent
determination of probable cause; therefore, there is no need to consider the Leon
exception. Further, the petitioner has in no way demonstrated that this information given
by the officer may have been false or given falsely and misled the warrant-issuing judge.
Thus, suppression of the physical evidence obtained from this warrant would not have been
appropriate. Additionally, even assuming there was not a substantial basis for finding
probable cause, application of the Leon exception would have been probable.
Consequently, the prejudice prong of the Strickland test is not satisfied because there is
not a reasonable probability of a different outcome had the motion to suppress not been
withdrawn. Accordingly, the petitioner’s objection on this issue is hereby OVERRULED.
D. Failure to Object to the “Defective” Verdict Form
The petitioner objects to the magistrate judge’s conclusion that the failure to object
to the verdict form was not ineffective assistance of counsel [Crim. Doc. 250 at 11]. He

12

asserts that the jury verdict form was erroneous because (1) the jury was essentially given
a directed verdict for the Government on the issue of drug quantity, (2) the jury was not
instructed to make the drug quantity determination with individualized consideration, and
(3) the jury was not told to subtract those quantities of methamphetamine that were not
usable or consumable [Crim. Doc. 250 at 13].
This Court notes that the petitioner, in his objections, misquotes the verdict form,
which may be found in the record as Document 114. This Court finds no defect in the
verdict form. While the petitioner claims that the jury was not instructed to make an
individualized consideration of the drug quantity, the jury was instructed that:
If you find the defendant guilty of the crime charged in Count 1 of the
Indictment (conspiracy), then you must also determine the amount of
controlled substance involved that should be attributed to the defendant. A
defendant is only responsible for drug activity by other conspirators that was
both within the scope of his agreement (i.e., part of his jointly undertaken
activity) and reasonably foreseeable to him.
[Doc. 112, p. 23].
In addition, the petitioner alleges that the jury should have been told to subtract
those quantities of methamphetamine that were not usable or consumable, citing several
cases. In United States v. Jennings, 945 F.2d 129, 136-137 (6th Cir. 1991), the Sixth
Circuit found that, at sentencing, the court should not have included a portion of a crockpot
cook that was poisonous in determining relevant conduct. In United States v. Turner, 59
F.3d 481 (4th Cir. 1995), the Fourth Circuit dealt with the proper interpretation of Guideline

13

Amendment 488 in LSD cases. In United States v. Sprague, 135 F.3d 1301 (9th Cir.
1998), the Ninth Circuit dealt with Guideline Amendment 484. Finally, in United States v.
Stewart, 361 F.3d 373 (7th Cir. 2004), the Seventh Circuit dealt with a thwarted,
incomplete attempt at producing methamphetamine.
In this case, the jury was primarily considering historical testimony of amounts of
methamphetamine that were actually distributed. Accordingly, there was no need and no
basis from which the jury could subtract unusable methamphetamine.
The petitioner’s assertions fail to satisfy the Strickland two-part test. While the
petitioner notes his burden of demonstrating a reasonable probability that the defect in the
verdict form affected the verdict, he has not actually done so other than to state the
unsupported conclusion that it did [Crim. Doc. 250 at 14]. He mentions that he “does not
have to show that the jury was actually influenced by the error,” but he does have to show
that the outcome of the case probably would have been different, and that requires some
sort of showing that the error somehow influenced the jury. To satisfy the prejudice prong
of Strickland, he must demonstrate a reasonable probability that counsel’s error had an
affect on the outcome of the case sufficiently serious that it warrants setting aside the
outcome of the proceeding, and that but for counsel’s unprofessional errors, the result of
the proceeding would have been different. Strickland, 466 U.S. at 694. To simply assert
the conclusion that the jury was affected without attempting to demonstrate how the jury
was negatively affected is not sufficient to satisfy this test. As such, the petitioner’s
objection on this issue is hereby OVERRULED.

14

E. Quantity of Drugs Found by Jury
The petitioner restates his objection to the magistrate judge’s conclusion that failing
to inform the jury to subtract the quantity of drugs that were intended for personal use or
were not usable was not ineffective assistance of counsel [Crim. Doc. 250 at 14]. He
asserts that this case is distinguishable from other drug cases because it involved the
conversion of a legal drug into an illegal drug [Crim. Doc. 250 at 15]. He cites Bell4 as an
analogous case. This case is not analogous to Bell. Bell did not deal with the conversion
of a legal drug into an illegal drug; it concerned the illegal distribution of a legally obtained
drug. That is in no way what occurred in this case. If the petitioner had possessed
pseudophedrine with the intent to distribute pseudophedrine, then this case would be
similar, as the petitioner claims it is. But this case deals with using the pseudophedrine to
manufacture an illegal drug. This Court agrees with the petitioner that possession of
Sudafed is not illegal; however, using Sudafed to make methamphetamine intended for any
use–personal or otherwise–is illegal. 21 U.S.C. § 841(a). The petitioner has in no way
attempted to address with statute, case law, fact, etc. the magistrate judge’s assertion that
the crime of manufacturing a controlled substance (which includes methamphetamine) is
not mitigated if the substance is manufactured for personal use. Nor has the petitioner
even suggested an alleged amount of his personal use which could be quantified.
Accordingly, the petitioner’s objection on this issue is hereby OVERRULED.

4

United States v. Bell, 667 F.3d 431 (4th Cir. 2012).

15

F. Failure to Object to Application of the Sentencing Guidelines
The petitioner objects to sentencing counsel’s failure to object to the district court’s
application of the sentencing guidelines for several reasons.
1. Pseudophedrine Consumed Not Subtracted From Total Quantity
The petitioner states that his counsel did not object to the drug quantity established
at sentencing, which was based on a conversion and “did not subtract the pseudophedrine
consumed from the total quantity delivered” [Crim. Doc. 250 at 15]. This statement is not
accompanied by any type of analysis, reasoning, or conclusion. Moreover, it is factually
inaccurate. This Court directs the petitioner to Defendant’s Objection No. 2 contained on
page 36 of the Presentence Report [Doc. 137], wherein defense counsel argued that “the
drug quantity based Federal Sentencing Guidelines are too high in that they fail to account
for the fact that the on-going methamphetamine manufacturing process took place because
of the defendant’s serious addiction. Those involved in the misconduct were a confederacy
of drug addicts who worked together only to make enough methamphetamine to consume.”
Again at the sentencing hearing, defense counsel reiterated his request for a variant
sentence based on the amount of the meth that the petitioner was consuming on a daily
basis. This Court, not impressed by the argument, stated in its Statement of Reasons
[Doc. 137] that “methamphetamine has ruined many lives in Upshur County and the
defendant and his confederacy played a substantial role in that.”
Furthermore, there was no factual basis by which this Court could make such a
determination inasmuch as there was no testimony concerning the amount of
pseudoephedrine used by the petitioner.

16

2. Three-Level Increase Erroneously Applied for Substantial Risk of Harm
The petitioner contends that counsel should have objected to the three-level
increase that was applied for creating a substantial risk of harm to human life and the
environment because expert testimony indicated that any risk created was no greater than
the ordinary risk created by any meth lab in Upshur County, West Virginia [Crim. Doc. 250
at 15]. He asserts that the enhancement was based on inaccurate speculation on behalf
of the probation officer who prepared the presentence report [Crim. Doc. 250 at 16-21]. The
petitioner gives examples of other cases that he claims support his position [Crim. Doc. 250
at 17-21]. He also notes the four factors required for an enhancement that prohibit the
Court from basing an enhancement on generalizations, which he contends the probation
officer and Court did [Crim. Doc. 250 at 18].
The petitioner’s assertions fail for a variety of reasons. First, as previously noted,
it is procedure for the probation officer to prepare a presentence report, which is based on
his extensive research and investigation into the facts of the case. Most importantly, the
presentence report here is greatly based on information that was produced during
testimony at trial. That trial was presided over by the undersigned, who also was the
sentencing judge. The undersigned also reviewed and accepted the presentence report,
even after hearing objections from counsel [Crim. Doc. 149]. To suggest that the probation
officer’s findings are mere speculation is clearly inaccurate.
Second, the petitioner mentions that the items found in the house were not
inherently dangerous. The petitioner fails to mention the anhydrous ammonia that was
located at the property [Crim. Doc. 137-1 at 16] and utilized in the manufacture of the

17

methamphetamine [Crim. Doc. 137-1 at 15]. Anhydrous ammonia is a toxic chemical to
begin with5, and its use in the methamphetamine manufacture made the manufacture not
at all “typical;” rather it is one of the most hazardous methods of producing
methamphetamine.6 Testimony at trial revealed that, in order to obtain a greater return
percentage of methamphetamine, the petitioner engaged in a smoking off process that
produces a hydrochloric acid gas that creates a harm to human life [Id.]. Additionally, the
ventilation system was used to remove the hazardous chemicals and fumes from the
property itself at the expense of the surrounding environment, and, according to testimony,
trash and liquid bi-products were burned outside the petitioner’s residence, releasing the
dangerous fumes and endangering the numerous individuals who frequented the
petitioner’s property [Id.]. It cannot be said that no substantial risk to human life was
created.
Finally, the petitioner notes the four factors to be assessed in determining whether
an offense created a substantial risk of harm to human life or the environment. However,
he seems to overlook the substance of the Extent Factor. The Extent Factor “compels a
sentencing court to consider ‘the duration of the offense, and the extent of the
manufacturing operation.’” United States v. Houchins, 364 F.3d 182, 189 (4th Cir. 2004).
In Houchins, the Fourth Circuit upheld the enhancement based on an operation two-weeks

5

AMMONIA SOLUTION (UN 3318); AMMONIA, ANHYDROUS (UN 1005): Lung
Damaging Agent, Center for Disease Control and Prevention, at
http://www.cdc.gov/niosh/ershdb/EmergencyResponseCard_29750013.html (June 18,
2013).
6

See United States v. Houchins, 364 F.3d 182 (4th Cir. 2004).

18

in duration. Here, the operation had a duration of two years. The petitioner’s reliance on
these factors is misguided.
3. Sentence Unreasonable Because Inconsistent With 18 U.S.C. § 3553(a)(6)
The petitioner claims that counsel was ineffective for failing to argue that the
sentence was inconsistent with 18 U.S.C. § 3553(a)(6), which provides protection against
nationwide disparities in sentences among similar defendants [Crim. Doc. 250 at 21]. He
notes that the district court has an obligation to address sentencing disparities and consider
unwarranted sentencing disparities [Id.].

However, this was not necessary as the

undersigned did consider 18 U.S.C. § 3553(a)(6) without the urging of counsel. The
following statement was made at sentencing:
THE COURT: In determining the appropriate sentence to be imposed, this Court has
considered all the factors set forth in 18 U.S.C. § 3553(a). Given the circumstances
of this case, this Court finds no grounds upon which to reduce or increase the
sentence beyond the lowest level of the applicable guidelines as determined.
[Crim. Doc. 149 at 14].
It is evident that there was no need for counsel to raise such an argument as the
Court had already taken these factors into consideration.
4. Shepard Documents Should Have Been Produced
The petitioner asserts that it was impossible to properly compute his criminal history
category because counsel failed to insist on production of the Shepard7 documents [Crim.
Doc. 250 at 22]. He claims that the presentence report’s criminal history computation was
not based on the official documents approved in that case [Id.]. However, Shepard does

7

Shepard v. United States, 544 U.S. 13 (2005).

19

not require production of certain documents in order to accurately compute a criminal
history category; it limits those that can be considered by a sentencing court.8 The
computations used in deriving the petitioner’s criminal history category were done
consistently with the United States Sentencing Commission’s guidelines. Additionally, the
petitioner has shown no evidence that any documents that would not be approved by
Shepard were used in the computation of his criminal history category, nor how insisting
on the use of Shepard documents would have affected his criminal history category. He
simply asserted that the criminal history level probably would have been lower.
For all of these reasons, the petitioner’s objection on this issue is OVERRULED.
G. R&R Conclusions and Recommendations on Page 9
The petitioner objects to the conclusion reached by the magistrate judge in his R&R.
Specifically, the petitioner objects to the magistrate judge’s recommendation that this Court
deny the petitioner’s motion [Crim. Doc. 250 at 2]. For the reasons elaborated in this
Order, the petitioner’s objection on this issue is OVERRULED.
IV. Conclusion
Upon careful review of the report and recommendation, it is the opinion of this Court
that the magistrate judge’s Report and Recommendation [Civ. Doc. 5; Crim. Doc. 245]
should be, and is, hereby ORDERED ADOPTED for the reasons more fully stated in the
magistrate judge’s report. Further, the petitioner’s Objections [Crim. Doc. 250] are
OVERRULED. Accordingly, the petitioner’s Motion to Vacate, Set Aside, or Correct

8

Shepard, 544 U.S. at 26.

20

Sentence pursuant to 28 U.S.C. § 2255 [Civ. Doc. 1; Crim. Doc. 202; Crim. Doc. 217] is
DENIED. As such, this case is hereby DISMISSED WITH PREJUDICE and ORDERED
STRICKEN from the active docket of this Court. The Clerk is DIRECTED to enter a
separate judgment in favor of the respondent.
As a final matter, upon an independent review of the record, this Court hereby
DENIES the petitioner a certificate of appealability, finding that he has failed to make “a
substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).
It is so ORDERED.
The Clerk is directed to transmit copies of this Order to all counsel of record herein.
DATED: August 14, 2013.

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