Opinion
Civ. A. No. 95-70295, Crim. A. No. 90-50016
August 7, 1995.
Douglas Joseph Licquia, pro se.
Mark C. Jones, Assistant United States Attorney, Flint, MI, for U.S.
ORDER DENYING PETITIONER'S MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE
On May 11, 1990, petitioner Licquia was indicted with nine other defendants in criminal action no. 90-50016-06. Petitioner was charged with one count of conspiracy to distribute controlled substances in violation of 21 U.S.C. § 846 and 841(a)(1) [count one], one count of possession with intent to distribute marijuana in violation of 21 U.S.C. § 841(a)(1) [count seven], one count of possession of firearms by an unlawful user of controlled substances in violation of 18 U.S.C. § 922(g)(3) [count eight]. At the criminal proceedings, petitioner was represented by Philip J. Olsen.
On November 13, 1990, petitioner pleaded guilty to all three counts pursuant to a Rule 11 plea agreement. Count one carried a mandatory minimum of ten years and a maximum term of imprisonment of life. Count seven carried a maximum term of imprisonment of five years and count eight carried a maximum term of imprisonment of ten years. On March 7, 1991, the government requested a substantial assistance downward departure, striking the statutory and guideline requirements to 72 months. This motion was granted and the petitioner received the following sentence. On count one, petitioner was sentenced to 72 months in prison. On count seven, petitioner was sentenced to 60 months in prison. On count eight, petitioner was sentenced to 72 months in prison. The three sentences were to be served concurrently. Petitioner was also sentenced to supervised release terms of five years on count one, three years on count seven, and three years on count eight. The three terms of supervised release were to be served concurrently. Before the court is petitioner's motion to vacate his sentence pursuant to 28 U.S.C. § 2255.
I. Analysis Section 2255 provides in pertinent part:
A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground 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, may move the court which imposed the sentence to vacate, set aside, or correct the sentence.
Petitioner alleges that he received ineffective assistance of counsel and that his sentence was illegal.
A. Ineffective Assistance of Counsel
Petitioner argues that he received ineffective assistance of counsel. In order to establish ineffective assistance of counsel, petitioner must first show that counsel's performance was so deficient as to fall below an objective standard of reasonableness, and that counsel made an error so egregious that he was not functioning as the "counsel" guaranteed under the Sixth Amendment. Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 2064-65, 80 L.Ed.2d 674 (1984). In order to establish his claim, petitioner must point to specific acts or omissions of counsel that are not the result of reasonable professional judgment. Id. at 690, 104 S.Ct. at 2066.
Petitioner must also show that the deficient performance prejudiced his defense. Counsel's errors must be shown to be so serious as to deprive petitioner of a fair trial. It is not enough to show errors that had some conceivable effect on the outcome of the proceedings. Id. at 693, 104 S.Ct. at 2067-68. Rather, petitioner must establish that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A "reasonable probability" is one sufficient to undermine confidence in the outcome. Id.
1. Attorney did not show petitioner pre sentence report.
Petitioner claims that his attorney did not show him the presentence report until the day of the sentencing. In 1991, Rule 32(c)(3)(A) provided that the court must verify that the defendant and defendant's counsel have read and discussed the presentence report made available at least ten days prior to sentencing unless defendant waives the minimum period. At the sentencing, the court asked the petitioner if he "had the opportunity to read over and review and fully discuss with Mr. Olson the presentence report." The petitioner answered, "Yes, sir." Rule 52(a) of the Fed.R.Crim.P. provides that any "error, defect, irregularity or variance which does not affect substantial rights shall be disregarded." In the instant case, the petitioner clearly stated that he had an opportunity to review the report. If petitioner did not have the opportunity to review the report, he could have and should have informed the court of this problem at the time of sentencing. As long as petitioner was given the opportunity to read the report before the sentencing, he cannot claim that his attorney's conduct was so deficient that he was not functioning as counsel guaranteed under the Sixth Amendment.
2. Mistakes in Presentence Report
Petitioner had the opportunity to inform the court of mistakes in the presentence report during the sentencing hearing. The government attaches the affidavit of Mr. Olson which refutes petitioner's claim that his lawyer told him to ignore the mistakes in the presentence report. In United States v. Stevens, 851 F.2d 140, 145 (6th Cir. 1988), the court stated that if counsel's performance did not prejudice defendant, then even if counsel did commit error, defendant's conviction is not overturned. Petitioner was specifically asked if he wished to address the court. At that time, petitioner spoke to the court, informing the court that he felt that he was not really part of the conspiracy. The court considered the information provided by petitioner and recognized that he was "not one of the major players in this," but that petitioner did have significant involvement.
As the court pointed out to petitioner, petitioner pleaded guilty to three counts. Count one alone had a maximum penalty of a life sentence. The Rule 11 plea agreement provided for a 121 month sentence. The government, however, moved for a downward departure to a sentence of 72 months. Petitioner has clearly been unable to show that his counsel's failure to bring "mistakes" to the attention of the court prejudiced him.
3. Failure to Object to Illegal sentence
First, petitioner alleges that his attorney failed to object when the judge sentenced petitioner for his involvement in the conspiracy without articulating the reasons he should be held responsible. During the sentencing, petitioner argued to the court that he was not a member of the conspiracy. The court found otherwise. In order to show a due process violation, petitioner must raise grave doubt as to the veracity of the information and show that the court relied on that false information in determining the sentence. United States v. Fry, 831 F.2d 664, 667 (6th Cir. 1987). Petitioner fails to present information which would raise grave doubt about his role in the conspiracy.
Second, petitioner alleges that his attorney failed to object to the sentence on the gun charge. Petitioner fails to explain how the gun charge was in error.
Third, petitioner alleges that his attorney failed to object when the judge sentenced petitioner to two terms for the same amount of marijuana. The terms for petitioner's marijuana counts were concurrent. They were calculated consistent with the multiple count adjustment which specifically provides for their calculation in the manner used by the court. Petitioner's sentence was not unconstitutional or in violation of federal law. Even if the court had imposed consecutive sentences, the sentences would have been constitutional. The Sixth Circuit explicitly held that consecutive sentences for counts of conspiracy and attempt do not violate double jeopardy and therefore are valid. U.S. v. Barrett, 933 F.2d 355, 361 (6th Cir. 1991). In the instant case, the court imposed concurrent sentences on the defendant. Therefore, the sentence in the instant action clearly does not violate double jeopardy. Therefore, petitioner's counsel was acting as effective counsel by failing to object to the sentence.
4. Conflict of Interest
Petitioner argues that his attorney, Philip Olson, had a conflict of interest because Olson was associated in practice with the attorney who represented two of petitioner's co-defendants. In order to establish a claim of ineffective assistance of counsel based on a conflict of interest, a petitioner who entered a guilty plea must establish: (1) that there was an actual conflict of interest; and (2) that the conflict adversely affected the voluntary nature of the guilty plea entered by the defendant. Thomas v. Foltz, 818 F.2d 476, 480 (6th Cir.) (citing Smith v. Bordenkircher, 671 F.2d 986, 987 (6th Cir.), cert. denied, 459 U.S. 848, 103 S.Ct. 107, 74 L.Ed.2d 96 (1982), cert. denied, 484 U.S. 870, 108 S.Ct. 198, 98 L.Ed.2d 149 (1987). The standard for determining whether actual conflict of interest exists requires petitioner to point to specific instances in the record which tend to show actual conflict or "impairment of their interest." Petitioner must show inconsistent interest between the co-defendants and the attorney made a choice between alternative courses of action the result being helpful to one client and harmful to the other. If no such choice was made, no actual conflict exists. Id. at 480-481. In the instant case, the attorney did not himself represent the co-defendants. Further, petitioner has been unable to point to any action which the attorney took which impaired his interest and helped the co-defendants. Lastly, petitioner has been unable to show that any conflict adversely affected the voluntary nature of his guilty plea.
5. Sentence Reduction
Petitioner argues that several of his co-defendants received sentence reductions for assistance to the government and petitioner's attorney did not pursue any reduction for petitioner. Petitioner is incorrect. The Rule 11 plea agreement provided for a 121 month sentence. Because of petitioner's assistance in this action, petitioner's sentence was reduced to 72 months. Therefore, the court fails to find that counsel's assistance was deficient in this regard.
B. Illegal Sentence
Petitioner makes several arguments as to why his sentence was illegal. Petitioner argues that the court did not determine the scope of his involvement and that the three sentences were based on the same amount of marijuana and therefore are illegal. These issues have already been addressed in the section regarding ineffective assistance of counsel.
Petitioner argues that he was incorrectly sentenced based on the guidelines because he was not a member of the conspiracy. The Presentence report made the following computations:
The Offense Conduct/Victim Impact
9) During the period covering November of 1988 to February of 1990, Gerald Thayer, Dawn Thayer, and Daniel Johnson, were leaders of a conspiracy to distribute large quantities of marijuana in the Flint area. They arranged for the marijuana to be obtained in San Antonio, Texas, and delivered to Flint, Michigan. Their primary source of supply was Rolanda Tellez, a resident of San Antonio. Mr. Tellez would pay individuals to drive trucks loaded with marijuana to Flint. The frequency of the trips were approximately once every two weeks. A total of 200 to 300 pounds of marijuana was delivered each trip.
10) The marijuana was usually delivered to the THAYER residence. The marijuana was then packaged for resale. The THAYERS and Johnson equally divided each load. The THAYERS had their own customers. Mr. Johnson had his own customers.
11) The defendant assisted the THAYERS and Daniel Johnson in processing the marijuana after it arrived from San Antonio, Texas. He received marijuana from Mr. Johnson for his assistance in processing the drug. Later in the conspiracy, the defendant allowed loads of marijuana to be delivered to his residence, 2273 Glade Street, Burton, Michigan, for processing. The defendant also sold quantities of marijuana for money.
12) On February 21, 1990, the defendant and Paul Chirich drove a four-door Buick to San Antonio, Texas. Mr. Johnson, the defendant, and Mr. Chirich flew from San Antonio to Detroit Metro Airport. The defendant and Mr. Chirich were carrying suitcases loaded with approximately 77 pounds of marijuana.
13) On February 22, 1990, a federal search warrant was executed at the defendant's residence, 2273 Glade Street, Burton, Michigan. During the search of the residence, 58.4 grams of marijuana and six firearms were seized.
14) During the course of the conspiracy, there were approximately 26 deliveries of marijuana form San Antonio to Michigan. The average weight of each delivery totaled 250 pounds. Thus, a total of 6,500 puns of marijuana was delivered to Flint by the defendants.
Presentence Report at 5-6.
PART E. COMPUTATIONS
Offense Level Computation Counts 1 and 7
36) Base Offense Level: The conspiracy distributed approximately 2,954.5 kilograms of marijuana. Based on the relevant conduct standard, the defendant is responsible for all the marijuana distributed by the conspiracy. Section 2D1.1(a)(3)(C)(6) established an offense level of 32. 2
37) Specific Offense Characteristics: Six firearms, including a semi-automatic pistol were seized from defendant's residence. Marijuana was also confiscated from his home. marijuana was also delivered to his residence. Thus, pursuant to Section 2D1.1(b)(1), a two level enhancement is appropriate. 2
38) Victim Related Adjustment: None. 0
39) Adjustment for Role in the Offense: None. 0
40) Adjustment for Obstruct of Justice: None. 0
41) Adjusted Offense Level: 4
Count 8 42) Base Offense Level: Section 2K2.1(c)(2) requires that this offense be cross-reference to the drug charge. 2
Multiple Count Adjustment 43) The weapons noted in Count 8 are a specific offense characteristic of Counts 1 and 7. Therefore, to avoid double-counting, count 8 is grouped with Counts 1 and 7. 4
44) Greater of the Adjusted Offense Levels: 4
45) Adjustment for Acceptance of Responsibility: In view of the defendant's statement at the plea hearing and his statement to me, he has accepted responsibility for his behavior. 2
46) Total Offense Level 2
PART F. SENTENCING OPTIONS
Custody
STATUTORY PROVISIONS:
47: Count 1: A mandatory minimum of 10 years must be imposed. A term of imprisonment up to life imprisonment may be imposed.
48) Count 7: The maximum term of imprisonment is five years.
49) Count 8: The maximum term of imprisonment is 10 years.
GUIDELINE PROVISIONS:
50) Based on a combined offense level of 32 and a criminal history category of I, the guideline imprisonment range is 121 months to 151 months.Supervised Release:
STATUTORY PROVISIONS:
51) Count 1: Per statute, a period of supervised release of at least five years must be imposed.
52) Count 7: A period of supervised release of at least two years must be imposed pursuant to the statute.
53) Count 8: This offense is a Class C Felony. Therefore, a period of supervised release of not more than three years pursuant to 18:U.S.C.:3583(b)(2), must be imposed.
Presentence report at 10-11. The court did find that petitioner was a member of the conspiracy. Further, petitioner's claim that he was not a member of a conspiracy is refuted by his plea of guilty to the conspiracy count.
Petitioner argues that count eight, which charged petitioner with possession of firearms by an unlawful user of controlled substances, does not relate to the entire conspiracy but only to 58.4 grams of marijuana seized from petitioner's residence. Count eight was based on 18 U.S.C. § 922(g)(3), which states that it is unlawful for any person who is an unlawful user of marijuana to ship or transport any firearm in interstate commerce. Thus, the court fails to see any how petitioner's argument would alter his sentence.
Lastly, petitioner argues that supervised release constitutes double jeopardy. Petitioner has cited no authority for his theory that a supervised release term constitutes double jeopardy.
ORDER
Therefore, it is hereby ORDERED that petitioner's motion to vacate his sentence is DENIED.