United States District Court, District of Columbia
JOHN D. BATES UNITED STATES DISTRICT JUDGE
Before the Court is petitioner Naibeye Koumbairia’s motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. For the reasons set forth below, the Court will deny the motion.
Following Koumbairia’s plea of guilty to sixteen charges based on his participation in a bank fraud conspiracy, the Court sentenced Koumbairia to 100 months on each count, to run concurrently. See Judgment [ECF No. 240]. Previously, he had been convicted under 18 U.S.C. § 922(g)(1) for possession of a firearm by a convicted felon. See United States v. Koumbairia, No. 10-3016, 2013 WL 597656, at *1 (D.C. Cir. Feb. 1, 2013). Koumbairia appealed the bank fraud sentence and argued that in sentencing him, the Court improperly double-counted his possession of a gun when it (a) increased his base offense level for possessing a gun during the course of the bank fraud conspiracy and (b) calculated his criminal history category based in part on his prior gun possession sentence. See U.S.S.G. § 4A1.2(a)(1) (“The term ‘prior sentence’ means any sentence previously imposed . . . for conduct not part of the instant offense.”).
The indictment in this case charged that Koumbairia possessed a gun on March 6, 2007, as a part of a fraud conspiracy, yet before he pled guilty to the bank fraud charges, he had been convicted under section 922(g)(1) for that gun possession. The Court increased his base offense level for the bank fraud sentence based on separate instances of gun possession during the bank fraud conspiracy. See Koumbairia, 2013 WL 597656, at *2-3. The Court explained that Koumbairia’s earlier sentence for his section 922(g)(1) conviction did not take into consideration his use of “a gun in any way in connection with this bank fraud.” Tr. of Sent. Hr’g [ECF No. 260] 54. In other words, even though the indictment charged that Koumbairia possessed a gun on March 6, 2007, as part of the bank fraud conspiracy, because the Court found that the prior sentence was not based on his use of a gun in connection with the conspiracy, the Court could rely on that sentence to increase his criminal history category while also increasing his base offense level based on separate instances of gun possession in connection with the bank fraud conspiracy. On appeal, the D.C. Circuit found no “clear” or “obvious” error in this Court’s offense level or criminal history calculations, and affirmed the sentence as imposed. Koumbairia, 2013 WL 597656, at *3.
Koumbairia, proceeding pro se, has now moved to vacate, set aside, or correct his sentence under section 2255, arguing that his counsel was constitutionally deficient for not objecting to the Court’s sentencing calculations and for not moving to dismiss the indictment.
STANDARD OF REVIEW
Under section 2255, a prisoner in custody under sentence of a federal court may move the sentencing court to vacate, set aside, or correct its sentence if the prisoner believes that “the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.” 28 U.S.C. § 2255(a). Such a motion will be granted only in limited circumstances because of the premium placed on the finality of judgments and because of the opportunities prisoners have to raise most of their objections during trial or on direct appeal. See United States v. Frady, 456 U.S. 152, 164 (1982) (“Once the defendant's chance to appeal has been waived or exhausted, . . . we are entitled to presume he stands fairly and finally convicted, especially when . . . he already has had a fair opportunity to present his federal claims to a federal forum.”). “[T]o obtain collateral relief a prisoner must clear a significantly higher hurdle than would exist on direct appeal.” Id. at 166. The defendant bears the burden of proving his claims by a preponderance of the evidence. United States v. Simpson, 475 F.2d 934, 935 (D.C. Cir. 1973).
Even so, “unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall . . . grant a prompt hearing thereon, determine the issues, and make findings of fact and conclusions of law with respect thereto.” § 2255(b). But a district court need not conduct an evidentiary hearing before denying a section 2255 motion when “the motion and files and records of the case conclusively show that the prisoner is entitled to no relief.” Id.; accord United States v. Morrison, 98 F.3d 619, 625 (D.C. Cir. 1996). “If it plainly appears from the face of the motion and any annexed exhibits and the prior proceedings in the case that the movant is not entitled to relief in the district court, the judge shall make an order for its summary dismissal . . . .” Rules Governing § 2255 Proceedings, Rule 4(b).
Koumbairia argues only that his counsel was constitutionally ineffective. The Sixth Amendment to the United States Constitution guarantees “the right to the effective assistance of counsel, ” Strickland v. Washington, 466 U.S. 668, 686 (1984) (internal quotation marks omitted), and a habeas petitioner may raise an ineffective assistance of counsel claim for the first time in a section 2255 proceeding “whether or not [she] could have raised the claim on direct appeal, ” Massaro v. United States, 538 U.S. 500, 504 (2003). To succeed on a claim of ineffective assistance of counsel, a habeas petitioner must show both that his lawyer performed deficiently, see Strickland, 466 U.S. at 687 (requiring showing that “counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment”), and that the petitioner was prejudiced by the lawyer’s mistakes, see id. At 694 (requiring “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different”). “Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim.” Id. at 700.
I. KOUMBAIRIA’S COUNSEL WAS NOT INEFFECTIVE FOR FAILING TO OBJECT TO THE COURT’S SENTENCING CALCULATIONS
Koumbairia first argues that his counsel was ineffective because his counsel failed to object when the Court increased his criminal history category based on Koumbairia’s prior gun conviction even though the Court also increased his base offense level because he possessed a gun in connection with the bank fraud offense. The D.C. Circuit, however, found that this Court did not commit a “clear” or “obvious” error in calculating Koumbairia’s criminal history. Koumbairia, 2013 WL 597656, at *3. Koumbairia nevertheless believes that had his counsel objected, either (1) the Court would not have used the conviction to enhance his criminal history category; or (2) the D.C. Circuit would have (a) reviewed the criminal history calculation under a less deferential standard of review than plain error review, (b) determined that the Court erred, and (c) reversed. Because his counsel did not object, Koumbairia contends that his assistance was constitutionally deficient.
Yet had his counsel objected to the Court’s criminal history calculation, it would have made no difference. To begin with, the Court did not rely on the March 6, 2007 gun possession in calculating Koumbairia’s base offense level. See Tr. of Presentence Hr’g [ECF No. 259] 87. Instead, the Court relied on other instances in which Koumbairia possessed a firearm in connection with the fraud scheme. Id. From that alone, the Court could conclude that it did not engage in double-counting. See, e.g., United States v. Crosson, 166 F.3d 1210, at *1 (4th Cir. 1998) (Table) (no error where district court increased criminal history category because it did not rely on prior sentence in computing offense level); United States v. ...