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United States v. Moses

United States District Court, District of Columbia

July 6, 2015

UNITED STATES OF AMERICA,
v.
ERIC ARTEZ MOSES, Defendant. Criminal No. 11-253-01 (CKK)

MEMORANDUM OPINION

COLLEEN KOLLAR-KOTELLY, District Judge.

On February 29, 2012, Eric Artez Moses ("Moses") pled guilty to one count of possession with intent to distribute five kilograms of cocaine or more and 280 grams of cocaine base or more, pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C). Presently before the Court is Moses' pro se [204] Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence. Upon a searching review of the parties' submissions, [1] the relevant authorities, and the record as a whole, the Court finds no grounds for setting aside Moses' conviction and sentence at this time. Accordingly, the Court shall DENY Moses' [204] Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence for the reasons described herein.

I. BACKGROUND

On August 11, 2011, a federal grand jury indicted Moses and seven other codefendants in connection with an alleged conspiracy to distribute cocaine. Indictment (Aug. 11, 2011), ECF No. [3]. Pursuant to the indictment, Moses was charged with conspiracy to distribute and possess with intent to distribute five kilograms or more of cocaine and 280 grams or more of cocaine base (21 U.S.C. § 846), one count of using, carrying, and possessing a firearm during a drug trafficking offense (18 U.S.C. §§ 2 & 924(c)(1)), and five counts of use of a communication facility (21 U.S.C. § 843(b) & 18 U.S.C. § 2). See id. On that same day, Moses was separately charged in a second case along with three codefendants in connection with an alleged conspiracy to distribute marijuana. U.S. v. Moses, No. 11-254-01 (CKK), Indictment (Aug. 11, 2011), ECF No. [3]. Specifically, Moses was charged in that case with one count of conspiracy to distribute and possess with intent to distribute marijuana (21 U.S.C. § 846) and 11 counts of use of a communications facility (21 U.S.C. § 843(b) & 18 U.S.C. § 2). See id.

On February 29, 2012, pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C), Moses entered a written plea agreement, in which he agreed to plead guilty to one count of conspiracy to distribute and possess with intent to distribute five kilograms of cocaine or more and 280 grams of cocaine base or more in violation of 21 U.S.C. §§ 846, and 841(a)(1) and (b)(1)(A)(ii)-(iii) in the instant action. See Plea Agreement at 1, ECF No. [74]. Pursuant to the terms of the plea agreement, the parties agreed that the appropriate sentence of imprisonment should be 144 months (12 years). Id. at 2. After conducting a plea hearing, the Court accepted the plea agreement and, on May 23, 2012, the Court sentenced Moses to a term of 144 months imprisonment, with credit for time served, followed by 60 months of supervised release, and a Special Assessment of $100. Judgment, ECF No. [137]. As set forth on the record during the plea hearing, the 144-month term of imprisonment included the mandatory minimum of 120 months for the charged offense, plus 24-month sentence increase for gun possession. See Tr. 4:22-5:1, 57:9-11 (Feb. 29, 2012). Pursuant to the terms of the plea agreement, the Court dismissed all other charges pending against Moses both in the instant case and in the second case described above. Moses did not appeal his sentence and conviction, and currently is serving the term of imprisonment.

Pending before the Court is Moses' Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence. Moses' motion is premised on alleged legal errors and factual errors in calculating his sentence, and on receiving allegedly ineffective assistance from his counsel, Christopher M. Davis, during the plea bargain and sentencing phases of his case. Specifically, Moses alleges that: the imposition of the mandatory minimum sentence was an abuse of the Court's discretion and otherwise unconstitutional; there was insufficient evidence to support the increase to his sentence based on gun possession; the drug quantities that provide the basis of his sentence are in error; and his trial attorney provided ineffective assistance due to these three alleged errors.

II. LEGAL STANDARD

Under 28 U.S.C. § 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). The circumstances under which such a motion will be granted, however, are limited in light of the premium placed on the finality of judgments and the opportunities prisoners have to raise most of their objections during trial or on direct appeal. "[T]o obtain collateral relief a prisoner must clear a significantly higher hurdle than would exist on direct appeal." United States v. Frady, 456 U.S. 152, 166 (1982). Nonetheless, "[u]nless 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." 28 U.S.C. § 2255(b).

A prisoner may not raise a claim as part of a collateral attack if that claim could have been raised on direct appeal, unless he can demonstrate either: (1) "cause" for his failure to do so and "prejudice" as a result of the alleged violation, or (2) "actual innocence" of the crime of which he was convicted. Bousley v. United States, 523 U.S. 614, 622 (1998). However, "[w]here a petitioner raises claims of ineffective assistance of counsel in a § 2255 motion, he need not show cause and prejudice' for not having raised such claims on direct appeal, as these claims may properly be raised for the first time in a § 2255 motion." United States v. Cook, 130 F.Supp.2d 43, 45 (D.D.C. 2000), aff'd, 22 F.Appx. 3 (D.C. Cir. 2001) (citation omitted).

A defendant claiming ineffective assistance of counsel must show (1) "that counsel's performance fell below an objective standard of reasonableness under prevailing professional norms, " and (2) "that this error caused [him] prejudice." United States v. Hurt, 527 F.3d 1347, 1356 (D.C. Cir. 2008) (citation omitted). "Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence." Strickland v. Washington, 466 U.S. 668, 689 (1984). It is the petitioner's burden to show that counsel's errors were "so serious" that counsel could not be said to be functioning as the counsel guaranteed by the Sixth Amendment. Harrington v. Richter, 562 U.S. 86, 104 (2011). In evaluating ineffective assistance of counsel claims, the Court must give consideration to "counsel's overall performance, " Kimmelman v. Morrison, 477 U.S. 365, 386 (1986), and "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689.

III. DISCUSSION

A district court may deny a Section 2255 motion without a hearing when "the motion and files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255(b). "The decision whether to hold a hearing is committed to the district court's discretion, particularly when, as here, the judge who is considering the § 2255 motion also presided over the proceeding in which the petitioner claims to have been prejudiced.'" United States v. Orleans-Lindsey, 572 F.Supp.2d 144, 166 (D.D.C. 2008), appeal dismissed, No. 08-3089, 2009 U.S.App. LEXIS 20833 (D.C. Cir. Sept. 18, 2009) (quoting Fears v. United States, No. Civ. A. 06-0086 (JDB), 2006 WL 763080, at *2 (D.D.C. Mar. 24, 2006) (citations omitted)); see also United States v. Agramonte, 366 F.Supp.2d 83, 85 (D.D.C. 2005), aff'd, 304 Fed.App'x 877 (D.C. Cir. 2008). "The judge's own recollection of the events at issue may enable him summarily to deny a Section 2255 motion." Agramonte, 366 F.Supp.2d at 85 (citing United States v. Pollard, 959 F.2d 1011, 1031 (D.C. Cir. 1992), cert. denied, 506 U.S. 915 (1992)). To warrant a hearing, the petitioner's Section 2255 motion must "raise[] detailed and specific' factual allegations whose resolution requires information outside of the record or the judge's personal knowledge or recollection.'" Pollard, 959 F.2d at 1031 (quoting Machibroda v. United States, 368 U.S. 487, 495 (1962)).

Based on a thorough review of the parties' pleadings and the entire record in the criminal proceeding, the Court finds that there is no need for an evidentiary hearing on the instant motion. As explained below, Moses has not proffered detailed and factual allegations outside of the record such that a hearing is required on the issues raised in his motion. Accordingly, the Court shall render its findings based on the parties' pleadings and the record.

Specifically, Moses raises four claims: the imposition of the mandatory minimum sentence was an abuse of the Court's discretion and otherwise unconstitutional; there was insufficient evidence to support the increase to his sentence based on gun possession; the drug quantities that provide the basis of his sentence are in error; and his trial attorney provided ineffective assistance during the plea bargain and sentencing due to these three alleged errors. The Court shall address each of the first three claims in turn and examine the impact of each claim on the ineffective assistance of counsel argument.[2]

A. Mandatory Minimum Sentence

Moses was sentenced pursuant to 21 U.S.C. § 841(b)(1)(A)(ii) and (iii), which provides that a defendant who is found guilty of possession with intent to distribute five kilograms of cocaine or more and 280 grams of cocaine base or more "shall be sentenced to a term of imprisonment which may not be less than 10 years or more than life...." 21 U.S.C. § 841(b). In the instant motion, Moses alleges that the mandatory minimum sentence of 120 months that he is serving was improperly determined and, moreover, is unconstitutional. Def.'s Memo. at 4-15; Def.'s Reply at 5-6. Specifically, Moses appears to raise two arguments related to the 120-month mandatory minimum. First, Moses alleges that the mandatory minimum sentence was improperly imposed because the issue was not submitted to a jury. Second, Moses asserts that statutory mandatory minimum sentences are unconstitutional. In contrast, the Government argues that the mandatory minimum sentence was properly applied to Moses and that Moses' constitutional challenge is without merit in light of the fact that both the Supreme Court of the United States and the United States Court of Appeals for the District of Columbia Circuit ("D.C. Circuit") have held determinate sentences to be constitutional. Govt.'s Opp'n at 2-3. The Court finds that the mandatory minimum sentence was properly imposed on Moses following the Court's acceptance of the parties' plea agreement. Further, the Court finds that Moses' argument regarding the unconstitutionality of the mandatory minimum sentence fails as a matter of law. Moreover, to the extent that Moses is alleging that his counsel was ineffective for failing to explain the mandatory minimum sentence to him, the Court finds that this argument is without merit because it is clear from the record that Moses understood that he was subject to a 120-month mandatory minimum at the time he entered his guilty plea and that his plea covered all the requisite elements to subject him to the mandatory minimum sentence.

Turning first to Moses' argument regarding the alleged requirement that the issue of the mandatory minimum sentence be submitted to the jury, Moses cites Alleyne v. United States, ___ U.S. ___, ___, 133 S.Ct. 2151, 2155 (2013), in support of this argument. The Court first notes that Alleyne was decided after Moses was sentenced. Nonetheless, for the reasons described, the Court finds that Alleyne is not an intervening change in law relevant to Moses' claims.

In Alleyne, the Supreme Court held that any fact that increases the mandatory minimum is an element of the crime and, as such, must be submitted to the jury and found beyond a reasonable doubt, as opposed to a sentencing factor considered by the judge. Here, unlike in Alleyne, Moses waived his right to a trial by jury and entered a guilty plea. In the context of a guilty plea, an element enhancing a sentence, such as the drug quantities in this case, must be admitted by the defendant through plea or otherwise. As discussed further infra, Moses accepted responsibility during his plea for the requisite quantity of drugs in order to be sentenced to the mandatory minimum of 10 years pursuant to 21 U.S.C. § 841(b). Waiver of Trial by Jury, ECF No. [72]; Tr. 11:19-25 (Feb. 29, 2012) (explaining that "unless amd until [the Court] accept[s] your guilty plea, you are presumed by the law to be innocent because it's the Government's burden to prove your guilt beyond a reasonable doubt, and until it does you can't be convicted at trial"); id. at 35:21-36:16 (explaining to Moses that he is subject to a mandatory minimum term of imprisonment of ten years under the statute). Accordingly, the Court finds this argument is without merit.

Moses next raises a general challenge to the constitutionality of mandatory minimum sentences, arguing that they prevent the imposition of individual sentences, violate principles of proportionality, remove judicial discretion in sentencing, encroach on his right to equal protection, flout the separation of powers, constitute cruel and unusual punishment, and are generally inequitable and unjust.[3] Def.'s Memo. at 4-15. The Supreme Court has acknowledged arguments against the wisdom of mandatory minimum sentences, while still holding them to be constitutional. See Harris v. United States, 536 U.S. 545, 568-569 (2002), rev'd on other grounds, Alleyne, 133 S.Ct. 2151; see also Harmelin v. Michigan, 501 U.S. 957, 994 (1991) (holding that mandatory life imprisonment without an individualized determination that the sentence was appropriate was not cruel and unusual under the Eighth Amendment). The D.C. Circuit has similarly rejected claims that mandatory minimums are unlawful. United States v. Cook, 594 F.3d 883, 890 (D.C. Cir. 2010); United States v. Brown, 859 F.2d 974, 977 (D.C. Cir. 1988).

Finally, the Court turns to Moses' argument that his trial counsel rendered him ineffective assistance by failing to object to the imposition of the mandatory minimum sentence for the reasons described above. Here, the Court finds this argument is without merit because Moses has not established that his counsel's performance fell below an objective standard of reasonableness or that he was prejudiced by counsel's failure to raise either of these arguments. See Strickland, 466 U.S. at 689. Indeed, as discussed above and further infra, it is clear from the record that Moses was properly sentenced to the mandatory minimum after he waived his right to trial and entered into a plea agreement that included all the requisite elements to convict Moses pursuant to 21 U.S.C. §§ 846 and 841(a)(1) and (b)(1)(A)(ii)-(iii). Further, an ineffective assistance claim premised on Moses' trial counsel's failure to object to the overall constitutionality of mandatory minimum sentences similarly fails. Given that mandatory minimum sentences have been held to be constitutional, his counsel did not act unreasonably in failing to object when a question of law is settled. See U.S. v. Williams, 488 F.3d 1004, 1010 (D.C. Cir. 2007), cert. denied 552 U.S. 939 (2007) (holding that counsel's failure to object to conviction counting as "serious drug offense" was not unreasonable when the question was settled law in the circuit). Accordingly, the Court finds no basis to set aside or vacate Moses' sentence based on the alleged improper imposition of a mandatory minimum sentence or based on the related ineffective assistance of counsel claims.

B. Drug Quantities

Moses next challenges his 144-month sentence based in part on the drug quantities to which he was found accountable.[4] Def.'s Memo. at 17. Pursuant to 21 U.S.C. § 841(b)(1)(A)(ii) and (iii), a defendant who possesses with the intent to distribute 5 kilograms or more of a mixture or substance containing a detectable amount of cocaine, or 280 grams or more of a mixture or substance which contains cocaine base, is subject to a mandatory minimum sentence of 10 years imprisonment. In the instant motion, Moses argues that the sentence is improper because it was "founded upon 5 kilograms of cocaine and 280 grams of cocaine base, " and appears to generally call into question the calculation ...


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