Opinion
NO. 4:00-CR-241-A, (NO. 4:02-CV-840-A)
October 23, 2002
MEMORANDUM OPINION and ORDER
Came on to be considered the motion of Frederick Mitchell ("Mitchell") under 28 U.S.C. § 2255 to vacate, set aside, or correct sentence. Having reviewed the motion, the record, and applicable authorities, the court concludes that the motion should be denied.
I. Background
On October 18, 2000, Mitchell was named in a five-count indictment charging him with various narcotics violations and possession of a firearm in furtherance of those offenses. On April 27, 2001, Mitchell signed a plea agreement, whereby he would enter a plea of guilty to Count 2 of the indictment, and the government would move to dismiss the remaining counts. Mitchell pleaded guilty to a drug-trafficking offense charged by Count 2; and, the court sentenced him to 168 months' imprisonment and a five-year term of supervised release. The term of imprisonment included a two-point enhancement in the offense level for possession of a firearm. On the government's motion, the court dismissed the remaining counts of the indict
II. Grounds of the Motion
Mitchell asserts two grounds for relief. First, he urges that the government breached its plea agreement by pursuing a two-point sentencing enhancement, pursuant to section 2D1.1(b)(1) of the United States Sentencing Guidelines ("U.S.S.G."), for possession of a firearm, because the firearm charge under 18 U.S.C. § 924(c) was dismissed. Second, Mitchell argues that his counsel was ineffective in failing to object to the improper sentencing enhancement calculation.
III. Standard of Review
After conviction and exhaustion, or waiver, of any right to appeal, courts are entitled to presume that a defendant stands fairly and finally convicted. United States v. Frady, 456 U.S. 152, 164 (1982); United States v. Shaid, 937 F.2d 228, 231-32 (5th Cir. 1991), cert. denied, 502 U.S. 1076 (1992). A defendant can challenge his conviction or sentence after it is presumed final on issues of constitutional or jurisdictional magnitude only, and may not raise an issue for the first time on collateral review without showing both "cause" for his procedural default and "actual prejudice" resulting from the errors. Shaid, 937 F.2d at 232. Section 2255 does not offer recourse to all who suffer trial errors. It is reserved for transgressions of constitutional rights and other narrow injuries that could not have been raised on direct appeal and would, if condoned, result in a complete miscarriage of justice.United States v. Capua, 656 F.2d 1033, 1037 (5th Cir. Unit A Sept. 1981). In other words, a writ of habeas corpus will not be allowed to do service for an appeal. Davis v. United States, 417 U.S. 333, 345 (1974)
IV. Sentencing Enhancement
Mitchell complains that the government breached its plea agreement by pursuing a two-level enhancement for possession of a weapon after it agreed to dismiss the firearm charge in Count 4. Mot. at 5-7. The government did not violate the terms of the plea agreement. In exchange for Mitchell's agreeing to enter a plea of guilty to Count 2 of the indictment, the government agreed that Mitchell "will not be further prosecuted for his participation in the offenses alleged in the Indictment and as set out in the Factual Resume," and that "[t]he Government will move the court to dismiss the remaining counts of the Indictment, as to this defendant, only." Plea Agreement at 3. In accordance with the plea agreement, the government moved to dismiss the remaining counts, which the court granted. Sentencing Tr. at 15-16.
The plea agreement also cautioned Mitchell as to the ensuing pre-sentence investigation and the applicability of the sentencing guidelines:
The sentence in this case will be imposed by the Court. There is no agreement as to what that sentence will be. Sentencing is pursuant to the Sentencing Act of 1984, making the sentencing guidelines applicable. [Mitchell] has reviewed the application of the guidelines with his attorney, but understands that no one can predict with certainty what guideline range will be applicable in this case until after a pre-sentence investigation has been completed and the Court has ruled on the results of that investigation. [Mitchell] will not be allowed to withdraw his plea if the applicable guideline range is higher than expected, or if the Court departs from the applicable guideline range.
Plea Agreement at 2. The pre-sentence report provided that a two-point enhancement for possession of a weapon, pursuant to U.S.S.G. § 2D1.1(b)(1), was warranted. Although Mitchell objected that he did not exercise control over the firearm, the court, at sentencing, adopted the facts set forth in the pre-sentence report and overruled the objection: "And under those facts [Mitchell] certainly was in possession of firearms within the meaning of 2D1.1(b)(1). In other words, he possessed a dangerous weapon at the time of the narcotics offense and in connection with the narcotics offense in question." Sentencing Tr. at 10. It was not improper for the court to enhance Mitchell's sentence for possession of a firearm even though the court had dismissed the firearm charge. See, e.g., United States v. McCusker, 936 F.2d 781, 786 (5th Cir. 1991) (assessing two-point increase in offense level under the U.S.S.G. for possession of firearm, despite defendant's acquittal of substantive firearm offense); United States v. Blankenship, 954 F.2d 1224, 1227 (6th Cir.), cert. denied, 506 U.S. 901 (1992).
Moreover, a claim that the court erred in calculating a sentence is not grounds for relief under section 2255. United States v. Cervantes, 132 F.3d 1106, 1109 (5th Cir. 1998). The technical application of the guidelines does not give rise to a constitutional issue. United States v. Vaughn, 955 F.2d 367, 368 (5th Cir. 1992).
V. Ineffective Assistance of Counsel
Mitchell's ineffective-assistance-of-counsel claim revolves around his counsel's failure to object to, or appeal, the two-level enhancement and the government's alleged breach of the plea agreement. Mot. at 5, 7-9. To prevail on an ineffective assistance of counsel ground, petitioner must show (I) that his counsel's performance fell below an objective standard of reasonableness and (2) that there is a reasonable probability that, but for his counsel's unprofessional errors, the result of the proceedings would have been different. Strickland v. Washington, 466 U.S. 668, 687 (1984). Both prongs of the Strickland test must be met to demonstrate ineffective assistance. Id. at 697. Judicial scrutiny of this type of claim must be highly deferential and the defendant must overcome a strong presumption that his counsel's conduct falls within the wide range of reasonable professional assistance. Id. at 689. Here, the record is clearly adequately to fairly dispose of the claim of ineffective assistance. Hence, further inquiry is unnecessary. Baldwin v. Maggio, 704 F.2d 1325, 1329 (5th Cir. 1983), cert. denied, 467 U.S. 1220 (1984)
Counsel's failure to object to improper guideline calculations, however, does not establish a claim for ineffectiveness. United States v. Payne, 99 F.3d 1273, 1282 (5th Cir. 1996). In any event, for the reasons discussed, the court did not misapply the sentencing guidelines or incorrectly calculate Mitchell's sentence.
VI. ORDER
For the reasons discussed herein,
The court ORDERS that Mitchell's motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 be, and is hereby, denied.