Opinion
Nos. 98-20041-02-KHV, 00-CV-3050
February 15, 2000.
MEMORANDUM AND ORDER
This matter is before the Court on Defendant's Motion For Modification (Doc. #56) filed November 19, 1999, which the Court construes as a motion to vacate, set aside or correct her sentence pursuant to 28 U.S.C. § 2255, and defendant's Motion For Appointment Of Counsel (Doc. #57) filed November 19, 1999. After carefully considering the motions and pertinent record, the Court finds that defendant's motions should be overruled.
Defendant cites 28 U.S.C. § 994, which outlines the duties of the United States Sentencing Commission, and 18 U.S.C. § 3553, which sets forth the procedural guidelines for the Court in imposing sentences. Neither statute, however, provides jurisdiction for the Court to hear defendant's collateral challenges to her sentence.
Factual Background
On January 10, 1998, a grand jury returned an eight-count indictment which charged defendant in four counts with knowingly distributing methamphetamine and knowingly possessing methamphetamine with intent to distribute. Defendant pled guilty to one count of knowing possession with intent to distribute. On November 23, 1998, the Court sentenced defendant to 46 months in prison. Defendant did not file an appeal. Defendant now argues that the Court improperly enhanced her sentence two levels for possession of a firearm, that the Court did not accurately compute the total quantity of methamphetamine, and that the Court should reduce her sentence based on her post-conviction efforts at rehabilitation.
Analysis
The standard of review of Section 2255 petitions is quite stringent. The Court presumes that the proceedings which led to defendant's conviction were correct. See Klein v. United States, 880 F.2d 250, 253 (10th Cir. 1989). To prevail, defendant must show a defect in the proceedings which resulted in a "complete miscarriage of justice." Davis v. United States, 417 U.S. 333, 346 (1974).
I. Procedural Bar
Defendant's claims are procedurally barred because she failed to raise them on direct appeal. See United States v. Allen, 16 F.3d 377, 378 (10th Cir. 1994) ("[Section] 2255 is not available to test the legality of matters which should have been raised on appeal.") (quoting United States v. Walling, 982 F.2d 447, 448 (10th Cir. 1992)). Defendant is precluded from raising issues in a Section 2255 petition which were not raised on direct appeal "unless [s]he can show cause for [her] procedural default and actual prejudice resulting from the alleged errors, or can show that a fundamental miscarriage of justice will occur if [her] claim is not addressed." Allen, 16 F.3d at 378. Defendant has not satisfied any of these exceptions. For this reason, defendant's motion is overruled. Even if the Court were to evaluate the merits of defendant's petition, the Court would reach the same result.
II. Firearm Enhancement
Defendant objected at the time of sentencing to the firearm enhancement pursuant to United States Sentencing Guidelines ("U.S.S.G.") § 2D1.1(b)(1). In her motion to modify her sentence, defendant renews the objection. Defendant claims that the enhancement does not apply because her codefendant, James M. Baughman, possessed the firearms during the distribution of methamphetamine. The Sentencing Guidelines provide that "[t]he enhancement for weapon possession should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense." U.S.S.G. § 2D1.1, Application Note 3. The Tenth Circuit has noted:
The government bears the initial burden of proving possession by a preponderance of the evidence, and possession may be satisfied by showing mere proximity to the offense. See United States v. Roberts, 980 F.2d 645, 647 (10th Cir. 1992). The enhancement is then appropriate unless the defendant proves the exception — that it is clearly improbable the weapon was connected with the offense. See id.United States v. Smith, 131 F.3d 1392, 1400 (10th Cir. 1997),cert. denied, 522 U.S. 1141 (1998).
Defendant argues that under 28 U.S.C. § 924(c)(1), a defendant must actively employ a firearm in a drug transaction to support a conviction for use of a firearm. See Defendant's Motion For Modification (Doc. #56) filed November 19, 1999 at 1 (citingBailey v. United States, 516 U.S. 137 (1995)). "Use" of a firearm is not required, however, to support the firearm enhancement under U.S.S.G. § 2D1.1. The sentencing enhancement applies if the weapon is present and mere proximity of the firearm to the offense is sufficient. See Smith, 131 F.3d at 1400; United States v. Roederer, 11 F.3d 973, 982-83 (10th Cir. 1993); Roberts, 980 F.2d at 647; see also United States v. Goddard, 929 F.2d 546, 549 (10th Cir. 1991) ("[T]he Guidelines require only that a preponderance of the evidence support a finding that the circumstances surrounding the gun's presence do not make it `clearly improbable' that the gun was connected to the offense.").
Defendant previously argued that she removed two handguns from her house in August 1997, which shows that she did not consent to Baughman's use of handguns. See Objection To Presentence Recommendation For Two Level Enhancement For Use Of Firearm (Doc. #44) filed October 28, 1998 at 3. Defendant conceded, however, that she was aware that Baughman obtained guns for protection after a robbery at their residence on October 14, 1997. See Presentence Investigation Report ¶ 25. Moreover, the following evidence supports the conclusion that defendant knew or reasonably should have known that Baughman possessed a firearm during the drug transactions:
1. on October 15, 1997, defendant was present at an illegal drug transaction where Baughman displayed a handgun;
2. on October 31, 1997, Baughman brandished a handgun during a drug transaction;
3. on November 12, 1997, at another drug transaction, Baughman pointed a handgun at an undercover agent and accused him of being a cop;
4. the above transactions occurred at the joint residence of defendant and Baughman; and
5. during searches of the residence on November 14, 1997 and April 2, 1998, officers recovered a total of seven firearms.See Presentence Investigation Report ¶¶ 19-23. Based on this evidence, the Court properly enhanced defendant's sentence under U.S.S.G. § 2D1.1. See Smith, 131 F.3d at 1400 (personal possession not required, enhancement appropriate if possession by codefendant known to defendant or reasonably foreseeable to her); Goddard, 929 F.2d at 548 ("In the garden-variety drug case, we could perhaps assume joint actors are aware of the tools of their trade making it not improbable that the weapon was foreseen and connected with the offense."); see also U.S.S.G. § 1B1.3(a)(1)(B) (relevant conduct includes "all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity"). In sum, defendant failed to show either at the time of sentencing or in the instant motion that it was "clearly improbable" that the firearms possessed by Baughman were connected to the offense.
III. Computation Of Quantity Of Drugs For Offense Level
Defendant argues that the Court erred in calculating the quantity of drugs for her sentencing offense level. Defendant did not raise this objection at the time of sentencing or in response to the presentence investigation report. Indeed, in the plea agreement, defendant stipulated that "she is responsible for relevant conduct in this case totaling 155 grams of a mixture or substance containing a detectable amount of methamphetamine." Plea Agreement at 4, attached to defendant's Petition To Enter Plea Of Guilty And Order Entering Plea (Doc. #42) filed August 25, 1998. Defendant also conceded that the government could produce the underlying evidence to support the quantity of 155 grams of methamphetamine, 15 grams of cocaine and 1008 grams of marijuana. See id. at 4-5. Defendant stated in open court that the statements in her petition to enter a plea of guilty, which incorporated the plea agreement, were true and correct. See Petition To Enter Plea Of Guilty And Order Entering Plea (Doc. #42) filed August 25, 1998 at 4-6. Having made this statement in open court, defendant cannot now argue to the contrary. See United States v. Sisneros, 599 F.2d 946, 947 (10th Cir. 1979); Hedman v. United States, 527 F.2d 20, 22 (10th Cir. 1975). "Generally, the accuracy and truth of an accused's statement at a Rule 11 proceeding at which [her] guilty plea is accepted are conclusively established in the absence of a believable reason justifying departure from their apparent truth."United States v. Bambulas, 571 F.2d 525, 526 (10th Cir. 1978). Defendant also did not object to the presentence report which stated that the base offense level was based on the total amount of drugs in the case including 176.08 grams of methamphetamine; 34.52 grams of cocaine; 1,328.60 grams of marijuana; and 14.05 grams of a mixture of cocaine and methamphetamine. See Presentence Report ¶ 30. Defendant has waived her right to contest the total amount of drugs by her failure to object at the time of sentencing. See United States v. Donn, 661 F.2d 820, 824 (9th Cir. 1982) ("A defendant waives his right to attack the presentence report through a § 2255 motion when he fails to avail himself of an opportunity to do so contemporaneously or on direct appeal.");United States v. Marsh, 733 F. Supp. 90, 94 (D.Kan. 1990) (same); see also United States v. Kay, 961 F.2d 1505, 1507 (10th Cir. 1992) (failure to object to factual inaccuracies in presentence report waives objection on appeal).
Defendant's argument also lacks substantive merit. Defendant claims that the Court improperly considered chemicals, waste products and other by-products in calculating the total weight of methamphetamine involved. The entire weight of a mixture containing methamphetamine, however, should ordinarily be considered for sentencing. See United States v. Jennings, 945 F.2d 129, 136 (6th Cir. 1991). The Sentencing Guidelines provide:
(A) Unless otherwise specified, the weight of a controlled substance set forth in the table refers to the entire weight of any mixture or substance containing a detectable amount of the controlled substance. If a mixture or substance contains more than one controlled substance, the weight of the entire mixture or substance is assigned to the controlled substance that results in the greater offense level.
(B) The terms "PCP (actual)" and "Methamphetamine (actual)" refer to the weight of the controlled substance, itself, contained in the mixture or substance. . . . In the case of a mixture of substance containing PCP or methamphetamine, use the offense level determined by the entire weight of the mixture or substance, or the offense level determined by the weight of the PCP (actual) or methamphetamine (actual), whichever is greater.
U.S.S.G. § 2D1.1(c), notes (A), (B). Here, the Court sentenced defendant based on the weight of the mixture or substance containing methamphetamine, not on the weight of the methamphetamine (actual). If the Court considered the weight of methamphetamine (actual), as defendant suggests, her offense level either would have been the same under the Sentencing Guidelines or greater. See id. Although the Sentencing Guidelines recognize a few limited exceptions to the above rules, defendant has not shown that any of these exceptions apply in her case. See, e.g., U.S.S.G. § 2D1.1, Application Note 1 (weight of mixture or substance "does not include materials that must be separated from the controlled substance before the controlled substance can be used" such as "fiberglass in a cocaine/fiberglass bonded suitcase, beeswax in a cocaine/beeswax statue, and waste water from an illicit laboratory"); U.S.S.G. § 2D1.1(c), note (H) (LSD blotter paper should not be considered in total weight calculation);Jennings, 945 F.2d at 136-37 (poisonous unreacted chemicals and by-products found in mixture containing a small amount of methamphetamine should not be included in weight; final weight of mixture after manufacturing process should be considered). Indeed defendant fails to specify how the Court miscalculated the total weight of the methamphetamine mixture. For these reasons, the Court overrules defendant's objection to the quantity of drugs used to determine her offense level.
IV. Post-Conviction Rehabilitation
Defendant asks the Court to modify her sentence based on post-conviction rehabilitation efforts. A federal district court may modify a defendant's sentence only where Congress has expressly authorized it to do so. See United States v. Blackwell, 81 F.3d 945, 947 (10th Cir. 1996); 18 U.S.C. § 3582(c). Congress has set forth three limited circumstances in which a court may modify a sentence: (1) upon motion of the Director of the Bureau of Prisons in certain extraordinary circumstances or where defendant has reached 70 years of age and has served at least 30 years in prison; (2) when "expressly permitted by statute or by Rule 35;" and (3) when defendant has been sentenced "based on a sentencing range that has subsequently been lowered by the Sentencing Commission." 18 U.S.C. § 3582(c)(1), (2); see Blackwell, 81 F.3d at 947-48. None of these exceptions apply here. Defendant has not cited any statute which authorizes the Court to modify her sentence. Moreover, Rules 35 and 36 of the Federal Rules of Criminal Procedure clearly do not authorize a substantive modification of defendant's sentence at this time. See id.; Fed.R.Crim.P. 35 (authorizes resentencing (a) to correct illegal sentence on remand from a court of appeals, (b) to reflect defendant's substantial assistance on motion of the government, and (c) to correct arithmetical, technical, or other clear error within seven days of sentencing); Fed.R.Crim.P. 36 (authorizes court to correct clerical-type errors). Finally, the Court does not have inherent authority to resentence defendant. See Blackwell, 81 F.3d at 949. For these reasons, the Court does not have jurisdiction to modify defendant's sentence at this time.
Defendant also asks the Court to recommend her for the "500 Hour Drug Program." Given that the Court declines to resentence defendant, it cannot appropriately address defendant's request at this time. At the time of sentencing, however, the Court recommended that defendant be considered for the Intensive Confinement Program when she becomes eligible. See Judgment In A Criminal Case (Doc. #50) filed December 4, 1998 at 2.
V. Defendant's Motion For Appointment Of Counsel
The files and records in this case conclusively show that defendant is not entitled to any relief. Accordingly, no evidentiary hearing is required. No hearing is required where the factual matters raised by defendant's Section 2255 petition may be resolved on the record before the Court. See United States v. Marr, 856 F.2d 1471, 1472 (10th Cir. 1988).
Defendant requests appointment of counsel with respect to her motion. Defendant has no constitutional or statutory right to appointment of counsel in a Section 2255 proceeding if no evidentiary hearing is required. See United States v. Evans, 51 F.3d 287, 1995 WL 139420, at 1 (10th Cir. 1995) (citing United States v. Vasquez, 7 F.3d 81, 83 (5th Cir. 1993)). Absent any showing of the need for counsel and in light of the foregoing findings, the Court will overrule defendant's request. See Wilson v. Duckworth, 716 F.2d 415, 418 (7th Cir. 1983) (identifying relevant factors for discretionary appointment of counsel).
IT IS THEREFORE ORDERED that Defendant's Motion For Modification (Doc. #56) filed November 19, 1999 be and hereby is OVERRULED.
IT IS FURTHER ORDERED that defendant's Motion For Appointment Of Counsel (Doc. #57) filed November 19, 1999 be and hereby is OVERRULED.