Opinion
No. 3:97-CR-0263-R, No. 3:O1-CV-1160-R
July 26, 2002
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § (b), and an Order of the Court in implementation thereof, subject cause has previously been referred to the United States Magistrate Judge. The findings, conclusions, and recommendation of the Magistrate Judge are as follows:
FINDINGS AND CONCLUSIONS
I. Background Nature of the Case: This is a Motion to Vacate, Set Aside, or Correct Sentence brought pursuant to the provisions of 28 U.S.C. § 2255.
Parties: Movant, Marsha Cunningham, is a federal prisoner currently residing in a United States Federal Prison Camp. The respondent is the United States of America (government).
Procedural History: On October 16, 1997, a jury convicted movant of three counts of possession of cocaine or cocaine base with intent to distribute and one count of maintaining a building for purpose of manufacturing cocaine and cocaine base. On January 12, 1998, the Court sentenced movant to 190 months imprisonment. In June 2000, the Fifth Circuit Court of Appeals affirmed the conviction on direct appeal. On June 18, 2001, movant filed the instant motion to vacate. On August 20, 2001, the government responded. Movant thereafter file a traverse on December 3, 2001.
Substantive Issues: Movant asserts that the Court erred in four respects: (I) failing to reduce her sentence as a minor participant; (2) failing to apply a two-point Safety Valve Reduction; (3) enhancing her offense level for obstruction of justice; and (4) failing to reduce her sentence for sentencing entrapment. In her fifth claim for relief, she further asserts that her sentence should be vacated due to ineffective assistance of counsel.
II. Scope of Relief Available under § 2255
"Relief under 28 U.S.C. § 2255 is reserved for transgressions of constitutional rights and for a narrow range of injuries that could not have been raised on direct appeal and would, if condoned, result in a complete miscarriage of justice." United States v. Gaudet, 81 F.3d 585, 589 (5th Cir. 1996) (citations and internal quotation marks omitted). It is well established that "a collateral challenge may not do service for an appeal." United States v. Shaid, 937 F.2d 228, 231 (5th Cir. 1991) (en banc) (quoting United States v. Frady, 456 U.S. 152, 165, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982)), cert. denied, 502 U.S. 1076, 112 S.Ct. 978, 117 L.Ed.2d 141 (1992). Defendants who collaterally attack their federal convictions, furthermore, may not raise grounds previously raised on direct appeal. United States v. Rocha, 109 F.3d 225, 229 (5th Cir. 1997).
In addition, defendants may only collaterally attack their convictions on grounds of error omitted from their direct appeals upon showing "cause" for the omission and "actual prejudice" resulting from the asserted error. Shaid, 937 F.2d at 232. Even then, any new assertion of error is limited to "issues of constitutional or jurisdictional magnitude." Id. The cause and prejudice test applies even to allegations of fundamental constitutional error. Id. The only exception to the application of the test is when a movant can establish a fundamental miscarriage of justice, i.e. that he or she is actually innocent of the crime convicted. Id. A showing of ineffective assistance of counsel, furthermore, satisfies the cause and prejudice standard. See United States v. Kallestad, 236 F.3d 225, 227 (5th Cir. 2000).
Movant provides a number of rationales for why the Court should consider her claims of trial error on the merits. The Court need not consider each of these rationales. While it is not entirely clear from her briefing, it appears that movant tries to show cause and prejudice for those claims by arguing ineffective assistance of counsel. At times she mentions ineffective assistance of trial or sentencing counsel. The ineffectiveness of trial or sentencing counsel, if any, would not, however, be sufficient to show cause for not raising the claims on appeal. Movant, nevertheless, alludes that appellate counsel also rendered ineffective assistance. While it is difficult to follow her traverse in this regard, it appears the better course to construe the traverse as claiming that ineffective assistance of appellate counsel caused the failure to raise the alleged trial court errors on appeal. In an abundance of caution, therefore, the Court will consider those claims in the context of a failure of appellate counsel to raise them on appeal.
III. Ineffective Assistance of Counsel
Movant claims that she received ineffective assistance of counsel during pre-trial negotiations, trial, sentencing, and appeal. The Sixth Amendment to the United States Constitution provides in pertinent part that "[i] n all criminal prosecutions, the accused shall enjoy the right... to have the Assistance of Counsel for his defense." U.S. Const., art. VI. Criminal defendants, furthermore, have a constitutional right to effective assistance of counsel in their first appeal. Evitts v. Lucey, 469 U.S. 387, 393-95, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985); Douglas v. California, 372 U.S. 353, 356-57, 83 S.Ct. 814, 9 L.Ed.2d811 (1963).
To successfully state a claim of ineffective assistance of counsel, one must generally demonstrate (1) that counsel's performance was deficient and (2) that the deficient performance prejudiced his defense. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 3562, 82 L.Ed.2d 864 (1984). To determine whether counsel's performance is constitutionally deficient courts "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable assistance." Id. at 689. Further, "[t] he reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions." Id. at 691. A failure to establish either prong of the Strickland test requires a finding that counsel's performance was constitutionally effective. Id. at 696. The Court may address the prongs in any order. Smith v. Robbins, 528 U.S. 259, 286 n. 14, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000).
"When a convicted defendant complains of the ineffectiveness of counsel's assistance, the defendant must show that counsel's representation fell below an objective standard of reasonableness." Strickland, 466 U.S. at 68 7-88. The courts determine the reasonableness of representation on a case-by-case basis. Roe v. Flores-Ortega, 528 U.S. 470, 477, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000).
To establish a claim of ineffective assistance of counsel, furthermore, movant must show she was prejudiced by the deficient assistance of counsel. Strickland, 466 U.S. at 687. To establish prejudice, a movant must show 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 a probability sufficient to undermine confidence in the outcome." Id. at 694. The prejudice component of the Strickland test "focuses on the question whether counsel's deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair." Williams v. Taylor, 529 U.S. 362, 393 n. 17, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (citations and internal quotation marks omitted). Reviewing courts must consider the totality of the evidence before the finder of fact in assessing whether the result would likely have been different absent the alleged errors of counsel. Strickland, 466 U.S. at 695-96.
Movants must "affirmatively prove prejudice." Id. at 693. To show prejudice in the sentencing context, furthermore, movants must demonstrate that the deficiencies of counsel created a reasonable probability that her sentence would have been less harsh. See Clover v. United States, 531 U.S. 198, 200, 121 S.Ct. 696, 148 L.Ed.2d 604 (2001) (holding "that if an increased prison term did flow from an error [of counsel] the petitioner has established Strickland prejudice"). They cannot satisfy the second prong of Strickland with mere speculation and conjecture. Bradford v. Whitley, 953 F.2d 1008, 1012 (5th Cir.), cert. denied, 506 U.S. 829, 113 S.Ct. 91, 121 L.Ed.2d53 (1992). Conclusory allegations, furthermore, are insufficient to obtain habeas relief. Koch v. Puckett, 907 F.2d 524, 530 (5th Cir. 1990).
In her fifth claim, movant argues that counsel rendered ineffective assistance by failing to:
a. pursue a guilty plea;
b. explain the sentencing guidelines and the applicable law before trial;
c. give the government exculpatory evidence prior to trial;
d. file a direct appeal on time;
e. obtain discovery documents before trial;
f. continue the trial date;
g. investigate the connection of "The Jamaican Task Force" to the trial; and
h. object to jury composition;
(Mot. Vacate at 8-10.) The Court, furthermore, has construed movant's traverse as alleging that ineffective assistance of appellate counsel has caused her failure to raise Claims 1 through 4 on direct appeal.
a. Failure to Pursue Guilty Plea
Movant claims that her trial attorney, Gary Krupkin, failed to pursue a guilty plea. Her claim has two distinct components that should be addressed separately to some extent. First, she contends that her trial counsel failed to secure a plea agreement with the government. Second, she contends that he failed to pursue a "straight" guilty plea in the absence of any agreement of the government. For both components, the failure to pursue a guilty plea amounts to ineffective assistance of counsel only if the movant shows that she would have pled guilty if given the opportunity.
The first component of the claim necessarily fails, because she provides nothing to affirmatively show that the government would have entered into any plea agreement. She speculates that had her attorney pursued such a plea the government would have agreed and she would have received a lesser sentence. She presents nothing to support the speculation. She concedes, moreover, that the government never offered a plea arrangement. (See Traverse at 15-17.) A defendant who is facing criminal charges cannot unilaterally enter into a plea agreement.
As for the alleged failure of counsel to pursue a guilty plea in the absence of a plea agreement with the government, movant has not shown that she would have entered into such a plea. She contends that she would have pled guilty despite her professed innocence, because she would have received at most a five to ten year sentence under the sentencing guidelines. (Traverse at 12-13.) The Court has grave doubts that movant would have been receptive to such a plea in view of her continued claims of innocence. A five to ten year sentence looks very appealing when one is facing a sentence of fifteen years and ten months, i.e. 190 months. It does not look so appealing, however, when one compares it to an acquittal. It appears that movant gambled on obtaining an acquittal and lost.
Movant has quite a hurdle to clear to now come to the Court and claim that she would have pled guilty had her attorney rendered effective assistance. She "must establish through objective evidence that there is a reasonable probability that, but for" the ineffective assistance from her attorney she would have pled guilty. See Paters v. United States, 159 F.3d 1043, 1047 (7th Cir. 1998) (addressing issue in context of related issue of rejection of plea offer). Self-serving statements standing alone are insufficient to carry this burden. Id. Movant must identify some "objective evidence" that she would have pled guilty. Id. Statements of movant alone simply do not create the requisite reasonable probability due to the nature of the claim which makes such statements inherently unreliable. A movant making such a claim must, therefore, provide objective evidence that he or she would have pled guilty in the absence of the alleged deficiency of counsel.
Movant here has presented nothing other than her own self-serving statements. She merely points at the discrepancy between the sentence she received and the sentence she presumes she would have received had she pled guilty and thus argues that, of course, she would have pled guilty. This is the epitome of using hindsight to judge the appropriateness of prior actions. It is natural for convicted defendants to look at their decision to plead not guilty and proceed to trial through the clearer lens of hindsight. This, however, the Court cannot do, when evaluating claims of ineffective assistance of counsel. See Johnson v. Collins, 964 F.2d 1527, 1536 (5th Cir.) (noting that federal courts "must avoid distortion by hindsight" when reviewing the performance of counsel), cert. denied, 505 U.S. 1235, 113 S.Ct. 4, 120 L.Ed.2d 933 (1992). The Court thus accords no materiality to the difference between the sentence received and the one movant might have received upon a guilty plea. In the absence of some objective indicia that movant would have pled guilty had her attorney pursued such a plea this claim fails.
The presumption itself appears based on some shaky propositions. The Court calculated her sentencing range to be 188 to 235 months, due to an offense level of 36 that includes a two level increase for obstruction of justice. Movant presumes that by pleading guilty the Court would have found an offense level of27 calculated from a base level of 34 and reduced by three levels for acceptance of responsibility, two levels for the safety valve provision, and two levels for being a minor participant. While a plea of guilty would qualify movant for the three level decrease for acceptance of responsibility, it is pure speculation that the Court would have found her a minor participant upon a plea of guilty when it did not grant that reduction after her jury conviction. There is no guarantee, furthermore, that the Court would not have increased the offense level by two for obstruction ofjustice based upon movant's actions prior to trial. For sake of argument, the likely result of a guilty plea would have been a sentence based upon an offense level of 31, which means 108 to 135 months.
The Court recognizes that one could argue that the prejudice is self-evident and no objective indicia is necessary when a guilty plea would have netted the defendant probation or perhaps some minimal sentence. That, however, is not the case here. The likely sentencing range had movant pled guilty would have been 108 to 135 months imprisonment. Such range does not appear so low so as to of itself tempt one to plead guilty, especially one who professes to be innocent. Movant's plea would have resulted in significant prison time. For the Court to find a reasonable probability that movant would have pled guilty had counsel pursued such option, movant must thus provide some objective indicia of that she would indeed have pled guilty. This claim thus fails for the failure of movant to provide more than her self-serving statements.
b. Failure to Explain Sentencing Guidelines and Applicable Law
Movant next claims that counsel rendered ineffective assistance when he failed to explain the sentencing guidelines and applicable law before trial. Such failure, however, can only prejudice movant if the lack of information caused her to reject a plea offer or chose to proceed to trial rather than simply plead guilty. The government offered no plea offer. Movant, furthermore, has made no adequate showing that she would have pled guilty. This claim fails.
c. Failure to Give Exculpatory Evidence to Government Before Trial
Movant further claims that her trial attorney rendered ineffective assistance when he failed to give the government some of her paycheck stubs prior to trial. For this claim to equate to ineffective assistance of counsel, movant must show a reasonable probability that, but for the deficiency of counsel, the resrilt of her trial would have been different.
The government pursued its case against movant on three fronts. First, it sought to show that the evidence of drug manufacturing at her apartment was so pervasive that she had to have known that her co-defendant was cooking and selling cocaine from her apartment. Second, it sought to show that movant had financially benefitted from the activities of her co-defendant, as demonstrated by the fact that she had three cars registered in her name and that her lifestyle appeared to exceed her income. Third, it sought to discredit her testimony by showing that she had a propensity for falsehoods, including submitting fraudulent claims for unemployment benefits, a fraudulent tax return, and lying to investigators when she was arrested by claiming not to have known her codefendant by his true name.
This claim of ineffective assistance attacks the second front. Movant claims her attorney should have given the government additional paycheck stubs that would have increased her annual earnings by approximately $3,000. Due to the failure of counsel to timely give the stubs to the government, the Court would not allow them to be admitted into evidence. Movant has, nevertheless, not affirmatively shown that the inclusion of such stubs into evidence would have created a reasonable probability that the outcome of her trial would have been different. When examining the case in its entirety, it is clear that the government's second front was its weakest notwithstanding the failure of counsel to get the paychecks admitted into evidence. That failure of counsel, however, does not impact the pervasive nature of the drug activity at the apartment or movant's history of untruthfulness. In view of the evidence showing the pervasive nature of the drug activity and showing movant's prior history of untruthfulness, the Court does not find a reasonable probability that the exclusion of paycheck stubs totaling $3,000 affected the outcome of trial. This claim fails.
d. Failure to File Timely Appeal
Movant next complains that her attorney failed to file a timely direct appeal. Such failure clearly constitutes deficient performance of counsel. No prejudice, however, flowed from such failure, because movant was granted an out of time appeal. This claim has no merit.
e. Failure to Obtain Discovery Documents Prior to Trial
Movant asserts that counsel failed to obtain proper discovery before trial. She specifically claims that counsel never received "official investigative reports and grand jury transcripts." (Mot. at 9.) She has demonstrated no reasonable probability, however, that the outcome of her trial or sentencing would have been different had counsel obtained such documents. She simply states that she "suffered prejudice when she lacked the ability to fight a case knowing and having an understanding of the burden she would have to meet in order to prevail at trial." (Id.) Such statement does not demonstrate prejudice. In the absence of prejudice this claim fails.
f. Failure to Continue Trial Date
Movant claims that counsel rendered ineffective assistance by permitting her to go to trial a mere sixty days after she was indicted. She contends that delaying trial would have given her an opportunity to obtain discovery and to make an informed decision about pleading guilty. (Mot. at 10.) This claim fails for at least two reasons. First, counsel has no right to unilaterally continue the trial date. It is purely speculative that the Court would have granted a continuance had counsel sought one. Speculation and conjecture does not satisfy the prejudice prong of Strickland. See Bradford v. Whitley, 953 F.2d 1008, 1012 (5th Cir.), cert. denied, 506 U.S. 829, 113 S.Ct. 91, 121 L.Ed.2d 53 (1992). More importantly, movant has not shown that had she obtained a trial continuance, she would have pled guilty, and thus received a lighter sentence, or that she would have obtained discovery that would have made a difference in the outcome of the proceedings against her. Movants must affirmatively show prejudice from deficient representation of counsel. Movant here shown no prejudice from the failure to seek a continuance of the trial date.
g. Failure to Investigate
Movant also makes a vague claim that counsel failed to investigate the connection of "The Jamaican Task Force" to the trial. The Court finds this claim conclusory. Movant fails to identify what, if anything, such investigation would have discovered. She fails to identify how such investigation would have created a reasonable probability that the outcome of the proceedings against her would have differed. She simply provides no support for this claim. "[C]onciusory allegations of ineffective assistance of counsel do not raise a constitutional issue in a federal habeas proceeding." Miller v.Johnson, 200 F.3d 274, 282 (SthCir.), cert. denied, 531 U.S. 849, 121 S.Ct. 122, 148 L.Ed.2d 77 (2000).
The government characterizes this claim as one dealing with selective prosecution. While the Court views that possibility as going beyond a liberal construction of movant's claims, it nevertheless notes that movant has shown no selective prosecution. To prevail on such a claim, movant must show that she was treated more harshly than others similarly situated and also that the prosecution was improperly motivated. Wayte v. United States, 470 U.S. 598, 608-09, 105 S.Ct. 1524, 84 L.Ed.2d 547 (1985). Due to a presumption that the government undertakes prosecutions in good faith, defendants alleging selective prosecution bear a heavy burden of proving facts sufficient to satisfy these two requirements. Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471, 489, 119S.Ct. 936, 142 L.Ed.2d 940 (1999). Such a defendant must produce "clear evidence" that displaces the presumption that the prosecutor acted unlawfully. Id. Movant has not carried her burden to show selective prosecution.
h. Failure to Object to Jury Composition
Movant lastly claims that counsel rendered ineffective assistance by failing to object to the composition of the jury panel. She contends that "virtually all" of the venire panel members were ineligible to serve as jurors on her case, because of some affiliation with the government or involvement with law enforcement. (Mot. at 10).
The Court finds no deficiency of counsel in failing to object to the composition of the jury panel. There is no "per se rule excluding any person who has had an association with an investigatory agency." United States v. Larouche, 896 F.2d 815, 830 (4th Cir.), cert. denied, 496 U.S. 927, 110 S.Ct. 2621, 110 L.Ed.2d 642 (1990). There is likewise no corresponding right to have a jury panel free from potential jurors with associations with law enforcement personnel. "Jurors with a connection to law enforcement need not be excused as a matter of law." United States v. Nururdin, 794 F. Supp. 277, 281 (N.D. Ill. 1992), aff'd, 8 F.3d 1187 (7th Cir. 1993). In addition, courts are within their discretionary authority to refuse to excuse jurors for cause simply because the jurors are related to law enforcement officials. See Brogdon v. Butler, 838 F.2d 776, 778 n. 1 (5th Cir. 1988); see also, United States v. Ortiz, 942 F.2d 903, 909 (5th Cir. 1991), cert. denied, 504 U.S. 985, 112 5. Ct. 2966, 119 L .Ed.2d 587 (1992); Cox v. Treadway, 75 F.3d 230, 239 (6th Cir.), cert. denied, 519 U.S. 821, 117 S.Ct. 78, 136 L.Ed.2d 37 (1996). If potential jurors need not be struck as a matter of law, their inclusion on the jury panel provides no basis of itself to object to the composition of the jury panel on the basis of some affiliation to someone associated with a law enforcement agency. Failing to assert a meritless or futile objection "cannot be grounds for a finding of deficient performance." Emery v. Johnson, 139 F.3d 191, 198 (5th Cir. 1997), cert. denied, 525 U.S. 969, 119 S.Ct. 418, 142 L.Ed.2d 339 (1998). Attorneys, furthermore, are "not required by the Sixth Amendment to file meritless motions." United States v. Gibson, 55 F.3d 173, 179 (5th Cir. 1995). Consequently, this claim fails.
i. Failure to Raise Claims 1 through 4 on Appeal
To show cause for not raising Claims 1 through 4 on direct appeal, movant alleges that appellate counsel rendered ineffective assistance. To be effective, however, counsel need not raise every non-frivolous issue on appeal. United States v. Williamson, 183 F.3d 458, 462 (5th Cir. 1999). "lnstead, to be deficient, the decision not to raise an issue must fall "below an objective standard of reasonableness."' United States v. Phillips, 210 F.3d 345, 348 (5th Cir. 2000) (quoting Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 3562, 82 L.Ed.2d 864 (1984)). "[A] reasonable attorney has an obligation to research relevant facts and law, or make an informed decision that certain avenues will not prove fruitful. Solid, meritorious arguments based on directly controlling precedent should be discovered and brought to the court's attention." Williamson, 183 F.3d at 462-63 (footnote and citations omitted). To determine whether movant's appellate counsel was deficient, the Court thus must consider whether the omitted challenges "would have been sufficiently meritorious such that [the attorney] should have raised it on appeal." Phillips, 210 F.3d at 348.
1. Minor Participant
Movant claims that the Court erred in not finding her to be a minor participant in the criminal activity that led to her convictions. Under USSG § 3B1.2 (b), courts may decrease a defendant's offense level by two, if it finds that "the defendant was a minor participant in any criminal activity." For purposes of this guideline, "a minor participant means any participant who is less culpable than most other participants, but whose role could not be described as minimal." USSO § 3B1.2, comment. n. 3 (1997). The background to the commentary further indicates that § 3B1.2 "provides a range of adjustments for a defendant who plays a part in committing the offense that makes him [or her] substantially less culpable than the average participant." USSG § 3B1.2, comment. backg'd (1997). According to Fifth Circuit precedent, one must be "`substantially less culpable than the average participant' to qualify as a minor participant." United States v. Garcia, 242 F.3d 593, 598 (5th Cir. 2001) (citing cases).
The "party seeking an adjustment in the base level of an offense bears the burden of proving by a preponderance of the evidence that the adjustment is warranted." United States v. Miranda, 248 F.3d 434, 446 (5th Cir.), cert. denied, U.S., 122 S.Ct. 410, 151 L.Ed.2d 312 (2001). Movant here has not carried that burden. A review of the record reveals sufficient facts to support a finding that she did not qualify for an adjustment to her offense level for any mitigating role under USSG § 3B1.2.
In this instance, there were two participants in the criminal activity — movant and her codefendant, Phillip Foote. From the evidence adduced at trial, it appears that Foote manufactured and delivered the cocaine or cocaine base that led to their convictions. Movant provided her home for storing the drugs and provided vehicles registered in her name for delivering the drugs. While their conduct differs in many respects, both in quality and quantity, the Court did not err in not finding movant substantially less culpable than the average participant. Knowingly providing a storage place for illegal drugs and vehicles for deliveries of illegal drugs makes movant more than a minor participant in the criminal conduct. "A minor participant adjustment is not appropriate simply because a defendant does less than other participants; in order to qualify as a minor participant, a defendant must have been peripheral to the advancement of the illicit activity." Miranda, 248 F.3d at 446-47. Providing a storage place and a means to deliver illegal drugs is not peripheral to the advancement of the illicit activity. The Court thus did not err in denying movant the requested adjustment for minor participant.
2. Safety Valve
Movant also claims the Court erred in failing to apply the "Safety Valve" provision of 18 U.S.C. § 3553 (t) and USSG § SC 1.2 to reduce her sentence. To qualify for a reduction under the safety valve provision, a defendant must have received a statutory minimum sentence that is greater than the sentence called for by the guidelines. United States v. Solis, 169 F.3d 224, 226 (5th Cir.), cert. denied, 528 U.S. 843, 120 S.Ct. 112, 145 L.Ed.2d 95 (1999). In this instance, the guidelines called for a sentence range of 188 to 235 months — a range well above the statutory minimum sentence. The safety valve provision is thus inapplicable and the Court did not err in not applying it to reduce movant's sentence.
In addition, the "party seeking to invoke the safety valve bears the burden of "ensuring that he [or she] has provided all the information and evidence regarding the offense to the Government.ZZZ United States v. Miller, 179 F.3d 961, 964 (5th Cir. 1999) (quoting United States v. Flanagan, 80 F.3d 143, 146-47 (5th Cir. 1996)). Movant here has not carried that burden. Consequently, a reduction under the safety valve provision would be unavailable even if the guideline range was below the statutory minimum.
Defendants may be entitled to a two-level reduction in offense level under USSO § 2D1. 1(b)(6), if they can meet the criteria set forth in § 5C1 .2, notwithstanding a guideline range greater than the statutory minimum. Solis, 169 F.3d at 226 n. 2. Movant is not entitled to such a reduction due to her failure to meet the criteria of § 5C1.2.
3. Obstruction of Justice
Movant further claims the Court erred in enhancing her sentence for obstructing justice. Pursuant to USSG § 3C1.1, federal courts increase defendants' offense levels by two if the defendant "willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice during the course of the investigation, prosecution, or sentencing of the instant offense of con viction. Committing perjury is one example of conduct to which the obstruction of justice enhancement applies. See USSO § 3C1.1 comment. n. 3(b) (1997). This enhancement "is proper any time the defendant is aware of the action or investigation against h[er] and [s] he conceals or attempts to conceal information material to the investigation, prosecution, or sentencing of the instant offense." United States v. Upton, 91 F.3d 677, 688 (5th Cir. 1996), cert. denied, 520 U.S. 1228, 117 S.Ct. 1818, 137 L.Ed.2d 1027 (1997). Information is material, "if believed, [it] would tend to influence or affect the issue under determination." USSG § 3C1.1 comment. n. 5 (1997). Courts may apply the enhancement for testimony given at trial. United States v. McCauley, 253 F.3d 815, 821 (5th Cir. 2001).
"A witness testifying under oath or affirmation [commits perjury] if she gives false testimony concerning a material matter with the willful intent to provide false testimony, rather than as a result of confusion, mistake, or faulty memory." United States v. Dunnigan, 507 U.S. 87, 94, 113 S.Ct. 1111, 1116, 122 L.Ed.2d445 (1993).
In this instance, the Court stated at sentencing with respect to objections to the obstruction enhancement: "Since this case was tried, I have the benefit of trial testimony and observing the witnesses during trial. I listened closely to the defendant's testimony and I had no doubt that she was lying under oath and . . . therefore, the extra points, 2 levels for perjury, is appropriately used." (Tr. of Sentencing at 5.) Evidence of record, furthermore, supports the application of the sentence enhancement for obstruction ofjustice. The case against movant centered around her knowledge of the drug activity in her apartment and the use of her vehicles to transport illegal drugs. She testified that she had no knowledge of the drug activity. Her testimony regarding her involvement and knowledge of the drug activity is clearly "material" because, if believed, it would tend to influence or affect the jury's verdict. The record supports a finding that movant committed perjury.
A trial court's factual findings — such as a finding of obstruction of justice — are reviewed for clear error. United States v. Huerta, 182 F.3d 361, 364 (5th Cir. 1999). Unless left with the "definite and firm conviction" that a mistake has been committed, no clear error is presented. United States v. Popahl 990 F.2d 1456, 1480 (5th Cir. 1993). It is patently obvious that movant can show no clear error in this instance.
4. Entrapment
Movant argues that the court erred in not reducing her sentence due to sentencing entrapment. She contends that she and her co-defendant were entrapped to sell crack cocaine rather than powder cocaine. (Mot. at 7-8.) She asserts that for her "sentence to reflect integrity, a downward departure for sentencing entrapment should be considered." (Id. at 8.)
Sentencing entrapment is defined as "outrageous official conduct [that] overcomes the will of an individual predisposed only to dealing in small quantities for the purpose of increasing the amount of drugs . . . and the resulting sentence of the entrapped defendant." United States v. Barth, 990 F.2d 422, 424 (8th Cir 1993) (citations and internal quotation marks omitted). "Sentencing entrapment or `sentence factor manipulation' occurs when "a defendant, although predisposed to commit a minor or lesser offense, is entrapped in committing a greater offense subject to greater punishment.'" United States v. Staufer, 38 F.3d 1103, 1106 (9th Cir. 1994) (quoting United States v. Stuart, 923 F.2d 607, 614 (9th Cir.), cert. denied, 499 U.S. 967, 111 S.Ct. 1599, 113 L.Ed.2d 662 (1991)); see also, United States v. Sumler, F.3d No. 01-3143, 2002 "WL 1389564, at n. 1 (3d Cir. June 27, 2002); United States v. Woods, 210 F.3d 70, 75 (8th Cir. 2000. The Fifth Circuit Court of Appeals has recognized the close relationship between sentencing factor manipulation and sentencing entrapment. See United States v. Tremelling, 43 F.3d 148, 150 n. 1 (5th Cir.), cert. denied, 514 U.S. 1122, 115 S.Ct. 1990, 131 L.Ed.2d 876 (1995) (referring to sentencing factor manipulation as "kissing cousin" of entrapment).
Although other circuits have expressly recognized sentencing factor manipulation or sentencing entrapment as a valid consideration when determining the sentence to impose, see United States v. Searcy, 233 F.3d 1096, 1099 (8th Cir. 2000) (relying upon USSG § 2D1.1 comment. nn. 12, 15), United States v. Montoya, 62 F.3d 1, 3-4 (1st Cir. 1995); the Fifth Circuit Court of Appeals has not yet expressly accepted the concept of sentencing factor manipulation or sentencing entrapment as a basis for determining the appropriate sentence, see United States v. Washington, 44 F.3d 1271, 1280 (5th Cir.) cert. denied 514 U.S. 1132, 115 S.Ct. 2011, 131 L.Ed.2d 1010 (1995); Tremelling, 43 F.3d at 151.
Assuming that the Fifth Circuit would agree that sentencing factor manipulation or sentencing entrapment is a valid basis for establishing the appropriate sentence for movant, the circumstances of this case are not so extraordinary and outrageous to have mandated a reduction in movant's sentence based upon governmental misconduct. The Presentence Report (PSR) indicates that the case against movant and her co-defendant Foote began on July 19, 1997, when an undercover agent arranged to purchase crack cocaine from Foote. (PSR ¶ 12.) Law enforcement agents possessed information that Foote "was selling crack cocaine in varying quantities, usually in kilogram amounts." (Id. ¶ 14). With that information, undercover agents arranged purchases of crack cocaine from Foote on four separate occasions ¶ three of which led to purchases of crack cocaine. (Id. ¶¶ 12-26.) Nothing of record indicates that Foote was reluctant to sell crack cocaine or that the government coerced him into doing so. Upon his arrest, furthermore, it was obvious that Foote was involved in an ongoing and extensive crack manufacturing operation in movant's apartment. Id. ¶ 18-19).
The clear inference from the Presentence Report is that Foote was predisposed to engage in the sale of crack cocaine. Movant has thus not established conduct on the part of the government that rises to the level of entrapment or sentencing manipulation. See Tremelling, 43 F.3d at 152. Consequently, the Court did not err in failing to reduce movant's sentence due to entrapment or sentencing manipulation.
5. Conclusion Regarding Failure to Raise Claims on Appeal
For the foregoing reasons, the four claims of trial error omitted from movant's direct appeal are not sufficiently meritorious such that appellate counsel should have raised them on appeal. Consequentiy, the failure to raise the claims on appeal does not constitute deficient performance. Appellate attorneys are not deficient when they fail to present meritless claims to the Fifth Circuit.
With respect to the entrapment claim, furthermore, the Court notes that the Fifth Circuit has specifically held that it lacks jurisdiction to review the trial court's discretionary refusal to downwardly depart from the guidelines. See United States v. Ogbonna, 184 F.3d 447, 451 (5th Cir.) (addressing issue in context of USSG § 4A1.3), cert. denied 528 U.S. 1055, 120 S.Ct. 600, 145 L.Ed.2d 498 (1999). An appellate court has "jurisdiction to review a district court's decision not to depart downward from the guideline range only if the district court based its decision upon an erroneous belief that it lacked the authority to depart. Moreover, something in that record must indicate that the district court held such an erroneous belief." Id. at 451 n. 5. In this instance, nothing of record indicates that this Court erroneously believed that it lacked authority to downwardly depart from the guideline range due to the alleged sentencing entrapment. Thus, to the extent movant premises her sentencing-entrapment claim upon some denial of the court to downwardly depart from the guidelines, the Fifth Circuit Court of Appeals would have lacked jurisdiction to review the refusal. An appellate attorney need not raise such a claim to render effective assistance of counsel.
RECOMMENDATION
For the foregoing reasons it is recommended that the Court deny movant's Motion to Vacate, Set Aside, or Correct Sentence brought pursuant to 28 U.S.C. § 2255.
NOTICE
In the event that you wish to object to this recommendation, you are hereby notified that you must file your written objections within ten days after being served with a copy of this recommendation. Pursuant toDouglass v. United Servs. Auto Ass'n. 79 F.3d 1415 (5th Cir. 1996) (en banc), a party's failure to file written objections to these proposed findings of fact and conclusions of law within such ten-day period may bar a de novo determination by the district judge of any finding of fact or conclusion of law and shall bar such party, except upon grounds of plain error, from attacking on appeal the unobjected to proposed findings of fact and conclusions of law accepted by the district court.