United States of America v. Nelson
Criminal

District of Columbia, dcd-1:2002-cr-00027-17160

MEMORANDUM OPINION as to DOUGLAS NELSON Signed by Judge Richard W. Roberts on 12/30/05.

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA 1 DOUGLAS NELSON, 1 1 Petitioner,)) V.) Criminal Action No. 02-id 7 BRWR) 1 1 UNITED STATES OF AMERICA, 1 1 Respondent. 1 1) MEMORANDUM OPINION Petitioner Douglas Nelson filed this petition for a writ of habeas corpus under 28 U.S.C. §,2255 (2000) seeking reli, d f from a sentence imposed after he pled guilty to possession of a firearm by a convicted felon. Nelson asserts that his trial and appellate counsel provided ineffective assistance by fai ing to argue that a two-level increase in his base offense leve violated his plea agreement and the principles underlyin Blakely v. Washinqton, 542 U.S. 296 (2004). Because Nelson's al egations fail to meet the threshold showing of ineffective assist .nce of counsel, his habeas petition will be denied. BACKGROUND In 2002, Nelson pled guilty to a one-count indictme .t charging him with unlawful possession of a firearm and a munition by a convicted felon in violation of 18 U.S.C. §922(g) (1 1. In the plea agreement, the government agreed not to oppose $lelson's -2- request for a three-level reduction for acceptance of responsibility, not to seek any offense level increases or upward departures unless listed in the agreement, and not to oppose a request that Nelson be sentenced at the low end of the applicable guidelines range. (Piea Agr. ¶ S-10.) The agreement makes no mention of the possibility of a two-level increase under iU.S.S.G. § 3C1.2 for reckless endangerment during flight. Howeve4, the agreement does say that Nelson understood his sentence would be "imposed in accordance with the United States Sentencinq ~ Commissjon's Guidelines Manual" and that "the sentence to be imposed [was] a matter solely within the discret .i on of the Court." (Plea Agr. g[ 6.) ! 1 The presentence investigation report ('PSR") prepared for Nelson's sentencing reported that Nelson attempted to flee from the police by car just before his arrest, achieving speeds I estimated at 100 miles per hour in the city of Washington. The PSR assessed a two-level increase for reckless endangerm!nt during flight. At the sentencing on July 31, 2002, the 1 government took no position on whether the increase shoujd be applied, and the defense opposed the increase claiming that the government failed to show that Nelson had created a subs$antial risk of death or bodily injury to another person. Based~on facts in the PSR and facts admitted by Nelson in his plea, themcourt imposed a two-level increase under U.S.S.G. § 3C1.2. With the -3 - increase, Nelson's total offense level was 23. Because Nelson had a criminal history category of IV, the increase produced a sentencing guideline range of 70 to 87 months, rather than 57 to 71 months without the increase. The defendant was sentenced to 75 months. Nelson appealed this sentence in August 2002, and a knew attorney was appointed. In July 2003, Nelson's appellate counsel moved to withdraw. The D.C. Circuit ordered petitioner $o respond to counsel's motion to withdraw. Nelson failed to respond and in December 2003, the D.C. Circuit dismissedihis appeal for failure to prosecute. In July 2004, Nelson filed this habeas petition, al4eging that he did not receive constitutionally adequate representation. Nelson first alleges that neither his trial nor appellate counsel raised an objection based on Blakelv to the two-level increase of his base offense level for reckless endangerment during flight. Second, Nelson contends that his trial and appellate counsel should have raised the objection to the two-level increase that the increase was not included in his plea agreement. DISCUSSION Because petitioner predicates his habeas petition on an I ineffective assistance of counsel claim, Stri,ckland v. ~ Washington, 466 U.S. 668 (1984), guides the analysis of his petition. Under Strickland, a reviewing court must first -4- determine whether counsel's challenged conduct was unreasonable. Id. at 690. Second, the reviewing court must decide whether prejudice resulted from the ineffective assistance and renders the final outcome of the case untrustworthy. Id. at 691492. I. REASONABLENESS Unreasonable attorney conduct is conduct that is 'outside the wide range of professionally competent assistance." did. at 690. Counsel's conduct is evaluated in light of the totality of the facts of the case and against the established standard at the "time of counsel's conduct." Id. The constitution does not guarantee the right to clairvoyant counsel. & United States v. Harms, 371 F.3d 1208, 1212 (10th Cir. 2004); United States v. Williams, 838 F. supp. 1, 4 (D.D.c. 1993). A. Failure of counsel to object to the two-level increase based .on Blakelv At the time~of Nelson's sentencing, Aoorendi v. New~Jersev, 530 U.S. 466 (2000), was the latest decision issued in the Supreme Court's line of cases considering the precise reach of the Sixth Amendment's right to trial by jury. In Aoorendi, the Court held that "[olther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted .to a jury, and proved beyond ~ a reasonable doubt." Id. at 490. The D.C. Circuit had interpreted "statutory maximum" to mean the maximum sentence allowable under the applicable criminal statute. See United -5- States v. Fields, 251 F.3d 1041, 1043-44 (D.C. Cir. 2001). The statutory maximum for a violation of 18 U.S.C. § 922(g) (I), the offense to which Nelson pled guilty, was 10 years. See 18 U.S.C. § 924(a) (2). Nelson was sentenced to 75 months, well under the lo-year,statutory maximum. Blakelv was decided on June 24, 2004, well after the defendant's sentencing. Blakelv held that the maximum sentence a judge may impose on a defendant must be based only on the facts found by a jury or admitted by the defendant, not based on additional facts found by the judge. 542 U.;S. at 303-04. Because Blakelv had not yet been decided when Nelson was sentenced, no reliance upon Aoorendi and Fields by his tdial counsel would have been unreasonable, nor would any failure to predict that almost 23 months later, Blakelv would give disc to an objection to the two-level increase based on Nelson's Sixth Amendment right to a jury trial. Nelson's appellate counsel likewise would have had no cause to raise as grounds for~~appeal ! in 2002 and 2003 a Blakelv-based argument or Nelson's trjal counsel's failure to raise such an argument during sentencing. Consequently, the failure of Nelson's trial and appellate counsel to raise objections based on Blakelv did not constitute deficient assistance of counsel that violated Nelson's Sixth Amen4ent right to counsel. ! - 6- B. Failure of counsel to obiect to the two-level increase based on breach of the olea aoreement No ~provision of Nelson's plea agreement bound the government to oppose a two-level increase under § 3C1.2. The government promised not to seek such an increase, and it kept that p;romise. Nor did the agreement bind the court in any way regarding offense level adjustments.l Nelson's plea agreement explicitly states that Nelson understood that his sentence would be imposed in accordance with the United States Sentencinq Commission's Guidelines Manual, and that the sentence to be imposed was a matter solely within the discretion of the court. The application of the two-level increase for reckless endangerment during flight was not a breach of the plea ~ agreement. Consequently, Nelson's trial counsel had no cause to object to the two-level increase on the basis that it was a breach of the plea agreement. Likewise, Nelson's appellate counsel had no reason to raise the issue on appeal nor any reason to raise the fact that trial counsel did not bring up the issue. Accordingly, the failure of Nelson's trial and appellate~counsel to raise objection to the two-level increase as a breach~of the plea agreement did not render their service constitutionally inadequate. 1 This agreement was not entered under Federal Rule of Criminal Procedure 11(c) (1) (C) (then numbered as 11(e) (1) (C)) which would have bound the court to impose an agreed-upon sentence. - 7 - II. PREJUDICE Because neither Nelson's trial nor appellate counsel's conduct was deficient or outside the scope of professionally acceptable representation, it is unnecessary to determine whether the alleged ineffective assistance of counsel prejudiced ~ petitioner. See Strickland 466 U.S. at 697 (finding that: "there is no reason for a court deciding an ineffective assistance claim. . . to address both components of the inquiry if the defendant makes an insufficient showing on one"). CONCLUSION Nelson has not demonstrated that his trial and appellate counsel,provided him constitutionally deficient representation. His petition will be denied. A final order accompanies dhis Memorandum Opinion. SIGNED this 30th day of December, 2005. RICHARD W. ROBERTS ~ United States District Judge