Fry v. USA
ORDER adopting in part 5 Report and Recommendations; adopting Addendum to 7 Report and Recommendations; granting 1 MOTION to Vacate, Set Aside or Correct Sentence (2255) filed by Robert Fry, INSOFAR ONLY AS IT SEEKS RESENTENCING. The Peti tioner's sentence is VACATED and he is RESENTENCED to time-served. The USPO is ordered to prepare an amended judgment and commitment order. Signed by Chief Judge John Preston Bailey on 8/29/2014. Copy sent certified mail, return receipt to pro se Petitioner; copy emailed to USPO, USMS.(tlg) (Additional attachment(s) added on 8/29/2014: # 1 certified mail receipt) (tlg).
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
Civil Action No. 3:13-cv-19
Criminal Action No. 3:09-cr-78
UNITED STATES OF AMERICA,
On this day, the above-styled matter came before the Court for consideration of the
Report and Recommendation (“R&R”) of United States Magistrate Judge John S. Kaull
[Civ. Doc. 5; Crim. Doc. 111], filed July 7, 2014, and the Addendum to Memorandum
Opinion and Report and Recommendation [Civ. Doc. 7; Crim. Doc. 114], filed August 4,
2014. The magistrate judge’s Addendum recommends that this Court Grant petitioner
Robert Fry’s 28 U.S.C. § 2255 Motion to Vacate, Set Aside, or Correct Sentence [Civ. Doc.
1; Crim. Doc. 83], filed February 22, 2013, insofar only as it seeks resentencing. The
magistrate judge recommends denying the petitioner’s remaining claims. This Court
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
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 Kaull’s R&R were due within 14
days of service, pursuant to 28 U.S.C. § 636(b)(1). The petitioner accepted service of the
original R&R on July 10, 2014 and timely filed objections on July 17, 2014 [Crim. Doc. 113].
Questions raised by the petitioner’s objections led to Magistrate Judge Kaull’s Addendum,
filed August 4, 2014 [Civ. Doc. 7; Crim. Doc. 114]. Objections to Magistrate Judge Kaull’s
Addendum were again due within 14 days of service, and the Government timely objected
on August 14, 2014 [Crim. Doc. 116]. Accordingly, this Court will undertake a de novo
review of those portions of the magistrate judge’s findings to which objection is made. The
Court will review the remainder of the R&R for clear error.
On May 24, 2010, Mr. Fry pleaded guilty, pursuant to a plea agreement, to a single
count of distribution of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C)
and 18 U.S.C. § 2. On January 25, 2011, this Court sentenced Mr. Fry to 151 months of
imprisonment, at the low end of the petitioner’s guidelines sentencing range based on the
petitioner’s status as a career offender within the meaning of U.S.S.G. § 4B1.1.
Mr. Fry filed a direct appeal with the Fourth Circuit Court of Appeals in 2011. The
Fourth Circuit dismissed the petitioner’s appeal as barred by the appellate waiver in his
written plea agreement. The petitioner then filed a writ of certiorari with the Supreme Court
of the United States, which was denied on February 21, 2012.
On February 22, 2013, Mr. Fry filed the instant motion pursuant to 28 U.S.C. § 2255.
His petition alleges that the Court committed error by abusing its discretion and using his
Maryland conviction as a predicate conviction to enhance his sentence. He also claims that
there was disparity in the sentence he received compared with his co-defendant Kenny
Riley’s sentence. The petitioner’s final claim is for ineffective assistance of counsel [Civ.
Doc. 1; Crim. Doc. 83].
The magistrate judge recommended denial of the petitioner’s motion on the grounds
that the petitioner’s first two claims were barred by his appellate and collateral waiver. The
R&R recommends dismissal of his ineffective assistance of counsel claim as without merit.
After the petitioner filed his petition, but prior to filing his objections, the Fourth
Circuit held that a defendant’s prior conviction under Maryland law for first-degree burglary
does not qualify as a conviction for a crime of violence, a predicate offense for a
determination that a defendant is a career offender. United States v. Henriquez, 2014 WL
2900935 (4th Cir. June 27, 2014). The petitioner’s objections allege that one of the two
prior felony convictions used to designate him as a career offender was a conviction under
Maryland law for first-degree burglary [Crim. Doc. 113]. Therefore, he argues that he is
entitled to be resentenced without a career offender designation.
Magistrate Judge Kaull filed an Addendum to Memorandum Opinion and Report and
Recommendation [Civ. Doc. 7; Crim. Doc. 114], stating that in light of the Henriquez case,
the petitioner’s motion should be granted insofar only as it seeks resentencing. The
Government objected on the ground that the petitioner’s claim that he is not a career
offender “is barred by the habeas corpus waiver which the magistrate judge has already
correctly found was knowing and intelligent.” [Crim. Doc. 116 at 3].
The petitioner’s § 2255 petition put forth three claims: 1) the Court abused its
discretion in using his conviction for first-degree burglary in Maryland as a predicate
offense; 2) the petitioner did not receive due process due to the disparity in the sentence
the petitioner received compared to the sentence his co-defendant received; and 3)
petitioner’s attorney provided ineffective assistance of counsel. The Court agrees with the
magistrate judge and finds that the petitioner is not entitled to relief with respect to his
second or third claims but that the petitioner is entitled to relief with respect to his first
Claims 2 and 3: Sentencing Disparity and Ineffective Assistance of
The magistrate judge’s R&R recommends dismissal of the petitioner’s motion with
respect to the disparity between the petitioner’s sentence and his co-defendant, Kenny
Riley’s, sentence on the ground that the petitioner knowingly and intelligently waived his
appellate and collateral attack rights in his plea agreement. An appellate or collateral
waiver will be enforced except under very narrow circumstances, such as if enforcement
would result in a miscarriage of justice. The magistrate judge determined that the petitioner
knowingly and intelligently waived his appellate collateral attack rights and that the
petitioner’s claim of disparity between his sentence and his co-defendant’s sentence was
not grounds for invalidating the petitioner’s waiver. The petitioner did not file objections
with respect to this claim.
The R&R also recommends denial of the petitioner’s claim for ineffective assistance
of counsel as being without merit. The petitioner did not file any objections with respect to
Upon careful review of the report and recommendation, it is the opinion of this Court
that the magistrate judge’s Report and Recommendation should be adopted with respect
to claims two and three related to sentencing disparity and ineffective assistance of counsel
for the reasons more fully stated in the magistrate judge’s report.
Claim 1: Career Offender Designation
The magistrate judge originally recommended denial of the petitioner’s first claim,
that the Court committed error by abusing its discretion and designating the petitioner as
a career offender. The magistrate judge’s Addendum recommended relief for the petitioner
in light of a recent Fourth Circuit decision. This Court concurs. The petitioner was
originally sentenced using a predicate offense recently deemed inapplicable, and which
gave him career offender status. In light of the Fourth Circuit’s recent ruling, the petitioner
should be resentenced.
The petitioner pleaded guilty pursuant to a plea agreement. The petitioner’s plea
agreement included a stipulated amount of drug relevant conduct of 0.95 grams of cocaine
base. Pursuant to the United States Sentencing Guidelines in effect on the date that the
petitioner was sentenced, U.S.S.G. § 2D1.1(c)(13) provided for a base offense level of 14
for offenses involving at least 500 miligrams, but less than 1 gram of cocaine base. Based
on the Fair Sentencing Act of 2010, 0.95 grams of cocaine base, results in a base offense
level of 12.
The petitioner’s offense level was adjusted to 32 based on his designation as a
career offender under 4B1.1(b)(c).1 Under Guideline § 4B1.1, a defendant is a career
offender if he is an adult at the time of the instant offense, the instant offense is a crime of
violence or controlled substance offense, and the defendant has at least two prior “felony
convictions” for crimes of violence or controlled substance offenses. U.S.S.G. § 4B1.1(a).
In the present case, although the petitioner has an extremely lengthy criminal history, the
petitioner was determined to have only two predicate felony convictions. The first was a
conviction was for a controlled substance offense as defined in § 4B1.2(b), and the other
for first-degree burglary. The first-degree burglary conviction occurred in 2002, where the
petitioner was found guilty in the Circuit Court for Anne Arundel County, Annapolis,
United States v. Henriquez
While the petitioner’s instant § 2255 motion was still pending, the Fourth Circuit
decided United States v. Henriquez, 2014 WL 2900935 (4th Cir. June 27, 2014). The
Fourth Circuit held in Henriquez that although generic burglary has been deemed a crime
of violence sufficient to support an enhancement under the sentencing guidelines, firstdegree burglary in Maryland does not. The Court reasoned that Maryland courts have
The petitioner then received a three-level reduction for acceptance of responsibility,
resulting in a total offense level of 29 and a sentencing guidelines range of 151 to 188
construed Maryland’s first degree burglary statute more broadly than the Supreme Court’s
definition of generic burglary. Accordingly, the Fourth Circuit vacated the defendant’s
sentence, which the district court enhanced based on the defendant’s prior conviction of
first-degree burglary in Maryland, and remanded for resentencing.
Petitions under § 2255 are applicable to non-constitutional errors which involve “a
fundamental defect which inherently results in a complete miscarriage of justice.”
Whiteside v. United States, 748 F.3d 541, 548 (4th Cir. 2014), reh’g granted, 2014 WL
3377981 (4th Cir. July 10, 2014). The Fourth Circuit held in Whiteside “that an erroneous
application of the career offender enhancement amounts to a fundamental miscarriage of
justice that is cognizable on collateral review.” Id. at 551. The Court reasoned that
although ordinary misapplication of the guidelines does not amount to a miscarriage of
justice, “[b]y no rubric can the impact of the career offender enhancement be considered
‘ordinary.’” Id. This is due to the particularly severe punishment for career offenders. Id.
In this case, absent the enhancement, the petitioner would have had a total offense
level of 10. With his criminal history category of VI, he would have faced a guideline
sentencing range of 24 to 30 months. After the career offender enhancement, the
petitioner’s guideline sentence range jumped to 151 to 188 months. Even though the
petitioner was sentenced by this Court to the low end of the guideline range, 151 months,
that sentence was 121 to 127 months more than the guidelines would have provided for
without the career offender designation.
This Court agrees that the Fourth Circuit’s reasoning in Henriquez should apply to
the petitioner’s case. A conviction of first-degree burglary in Maryland cannot constitute
a crime of violence for purposes of determining whether a defendant is a career offender.
It is now apparent that Mr. Fry was erroneously determined to be a career offender. The
erroneous application of the career offender enhancement in the petitioner’s case amounts
to a fundamental miscarriage of justice. As such, his claim is cognizable on collateral
review and the petitioner will be resentenced.
The Government does not dispute that the petitioner’s first-degree burglary was a
necessary predicate to his designation as a career offender, directly resulting in a 20-level
increase in his base offense level. However, the Government argues that Henriquez is
inapplicable to the petitioner’s case because the petitioner executed a valid habeas corpus
waiver as part of his plea agreement. Although the petitioner has an enforceable waiver,
the Court will refuse to enforce the waiver on the ground that doing so would result in a
miscarriage of justice.
“A defendant may waive his right to appeal if that waiver is the result of a knowing
and intelligent decision to forgo the right to appeal.” United States v. Amaya–Portillo,
423 F.3d 427, 430 (4th Cir. 2005) (internal quotation marks omitted). The magistrate judge
found that the petitioner executed a knowing and intelligent waiver. Accordingly, collateral
attacks under 28 U.S.C. § 2255 are limited to claims of constitutional magnitude or to errors
which inherently result in a complete miscarriage of justice. See United States v.
Addonizio, 442 U.S. 178, 185, (1979). The Fourth Circuit has stated that “appellate courts
may “refuse to enforce an otherwise valid waiver if to do so would result in a miscarriage
of justice.“ United States v. Johnson, 410 F.3d 137, 151 (4th Cir. 2005) (quoting United
States v. Andis, 333 F.3d 886, 891 (8th Cir. 2003)).
In the instant case, the Court will refuse to enforce the otherwise-valid waiver. The
Fourth Circuit’s holding in Henriquez states that a misapplication of a career offender
designation is an error that would inherently result in a “miscarriage of justice.” As such,
this Court finds that applying the appeallate waiver in the instant case would result in a
miscarriage of justice. In sum, the petitioner’s claim was not waived pursuant to his plea
Upon careful review of the record, it is the opinion of this Court that the magistrate
judge’s Report and Recommendation [Civ. Doc. 5; Crim. Doc. 111] should be, and is,
hereby ORDERED ADOPTED IN PART AND DECLINED TO ADOPT IN PART. The
magistrate judge’s Addendum to Memorandum Opinion and Report and Recommendation
[Civ. Doc. 7; Crim. Doc. 114] is hereby ADOPTED for the reasons more fully stated
therein. Accordingly, the petitioner’s Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside,
or Correct Sentence by a Person in Federal Custody [Civ. Doc. 1; Crim. Doc. 83] is
hereby GRANTED INSOFAR ONLY AS IT SEEKS RESENTENCING. The petitioner’s
sentenced is therefore VACATED.
Additionally, the Government’s Motion to Dismiss or, in the Alternative, for Summary
Judgment and Response to Order to Show Cause is GRANTED IN PART AND DENIED
IN PART. The petitioner’s Objections to the R&R [Crim. Doc. 113] are SUSTAINED while
the Government’s Objections to the Addendum to the R&R [Crim. Doc. 116] are
In view of the foregoing, the petitioner’s sentence shall be corrected, and he shall
be RESENTENCED TO TIME-SERVED. The United States Probation Office is ORDERED
to prepare an Amended Judgment and Commitment Order consistent with this Order.
It is so ORDERED.
The Clerk is directed to transmit a copy of this Order to counsel of record, to the
USPO, USMS, and to mail a copy to the pro se petitioner.
DATED: August 29, 2014.
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