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United States v. Rogers

United States District Court, W.D. Louisiana, Monroe Division

January 11, 2019





         Before the Court is a Motion to Vacate, Set Aside, or Correct Sentence, [doc # 242], filed by Defendant Vacarra Rogers on November 28, 201');">18, under 28 U.S.C. § 2255. The United States opposes the Motion. [doc. # 251');">1]. For reasons stated below, the motion is denied.


         On approximately March 26, 201');">15, a federal grand jury charged Defendant with conspiring to distribute, and to possess with the intent to distribute, methamphetamine. [doc. # 1');">1, p. 1');">1]. Trial commenced on December 1');">1, 201');">15. [doc. # 1');">133]. On December 3, 201');">15, a jury found Defendant guilty. [doc. # 1');">145, p. 1');">1].

         On January 28, 201');">16, a United States Probation Officer issued a “Presentence Investigation Report” (“PSR”), in which the officer determined, after applying the Federal Sentencing Guidelines, that Defendant “directed the criminal activity of [his co-defendant, Turner] in a conspiracy that involved less than five people[, ]” that Defendant therefore qualified as “an organizer, leader, manager, or supervisor[, ]” and that, consequently, Defendant's offense level should be increased from Level 28 to Level 30 under U.S.S.G. 3B1');">1.1');">1(c). [doc. # 1');">167, pp. 6-7]. Defense counsel did not object to any findings in the PSR. [doc. #s 1');">167, p. 1');">15; 1');">189, p. 4');">p. 4]. Defense counsel did, however, file a sentencing memorandum, urging the Court to depart from the guidelines-as well as the recommendation in the PSR-and to impose a mandatory minimum sentence of 1');">120 months. [doc. # 1');">161');">1]. Counsel also asked the Court, in the alternative, to impose the “lowest guideline imprisonment range of 1');">135 months.” Id.

         At sentencing, the Court adopted “the presentence investigation report without change.” [doc. # 1');">170, p. 1');">1]. Then, counsel moved for a downward departure, which the Court denied. [doc. #s 1');">169, p. 1');">1; 1');">170]. The District Judge sentenced Defendant to 1');">151');">1 months of imprisonment and five years of supervised release. [doc. # 1');">169].

         Defendant, proceeding pro se, appealed his conviction. On September 22, 201');">17, the United States Court of Appeals for the Fifth Circuit affirmed the conviction. [doc. # 21');">13].[1');">1" name="FN1');">1" id="FN1');">1">1');">1]

         In the instant motion, Defendant claims that his trial counsel rendered ineffective assistance by failing to challenge the result that the probation officer and the District Judge reached after applying the sentencing guidelines to the facts. [doc. # 242, p. 4');">p. 4]. More specifically, he claims that counsel should have objected or challenged the probation officer's and the District Judge's conclusion that he qualified for a sentence enhancement as a leader, organizer, or supervisor. Id. He also claims that counsel should have argued that he qualified for an offense level decrease as a “minor” participant under U.S.S.G. 3B1');">1.2. [doc. # 242-1');">1]. Defendant adds that, had counsel objected, “there is a reasonable probability that this Court would have sustained the objections and imposed a lesser sentence . . . .” Id. at 3.

         In response, the United States argues:

The evidence presented at trial established [that Defendant] was the cornerstone of an interstate drug conspiracy. [Defendant] therefore cannot prove that his trial counsel was deficient for failing to object to the “aggravating role” enhancement or for failing to move for a “minor role” reduction. Even assuming he could establish deficient performance, [Defendant] cannot prove that “the result of the proceeding would have been different.”

[doc. # 251');">1, p. 1');">1-2].

         Law and Analysis

         Review under Section 2255 is limited to four grounds: whether (1');">1) the sentence was imposed in violation of the Constitution or laws of the United States; (2) the court was without jurisdiction to impose the sentence; (3) the sentence exceeds the statutory maximum sentence; or (4) the sentence is “otherwise subject to collateral attack.” 28 U.S.C. § 2255(a).

         I. Ineffective Assistance of Counsel

          A Section 2255 motion is an acceptable vehicle through which to raise initial claims of ineffective assistance of trial or appellate counsel. Massaro v. U.S., 538 U.S. 500, 503-04 (2003). To prevail on an ineffective assistance of counsel claim, a defendant must show that her counsel's actions fell below an objective standard of reasonableness and that the ineffectiveness of counsel prejudiced her. Strickland v. Washington, 466 U.S. 668, 686-87 (1');">1984). If the defendant does not make a sufficient showing as to one prong of the test, the other prong need not be considered. Tucker v. Johnson, 1');">11');">15 F.3d 276');">1');">11');">15 F.3d 276, 281');">1 (5th Cir. 1');">1997). The prongs of the test need not be analyzed in any particular order. Goodwin v. Johnson, 1');">132 F.3d 1');">162, 1');">172 n.6 (5th Cir. 1');">1997).

         In applying the first prong of Strickland, courts presume that the attorney's actions are encompassed within the wide range of reasonable competence and fall under the ambit of trial strategy. See Strickland, 466 U.S. at 689-90. The defendant must show that the performance of counsel fell “outside the wide range of professionally competent assistance.” Id. at 690; Ward v. Whitley, 1');">1 F.3d 1');">1355');">21');">1 F.3d 1');">1355, 1');">1361');">1 (5th Cir. 1');">1994). “Judicial scrutiny of counsel's performance must be highly deferential[, ]” and courts must make every effort “to eliminate the distorting effects of hindsight . . . .” Strickland, 466 U.S. at 689.

         “Strickland does not guarantee perfect representation, only a ‘reasonably competent attorney.'” Harrington v. Richter, 562 U.S. 86, 1');">11');">10 (201');">11');">1) (quoting Strickland, 466 U.S. at 687) (other citations and quotation marks omitted). “Representation is constitutionally ineffective only if it ‘so undermined the proper functioning of the adversarial process' that the defendant was denied a fair trial.” Id. “Just as there is no expectation that competent counsel will be a flawless strategist or tactician, an attorney may not be faulted for a reasonable miscalculation or lack of foresight or for failing to prepare for what appear to be remote possibilities.” Id. “[I]t is difficult to establish ineffective assistance when counsel's overall performance indicates active and capable advocacy.” Id. at 1');">11');">11');">1.

         To establish prejudice, “[t]he defendant 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 defendant must demonstrate that the attorney's actions “were so serious as to render the proceedings unreliable and fundamentally unfair.” U.S. v. Saenz-Forero, 1');">101');">16');">27 F.3d 1');">101');">16, 1');">101');">19 (5th Cir. 1');">1994). Unreliability and unfairness do not result “if the ineffectiveness of counsel does not deprive the defendant of any substantive or procedural right to which the law entitled him.” Lockhart v. Fretwell, 506 U.S. 364, 372 (1');">1993). Accordingly, counsel cannot be ineffective for failing to raise a meritless claim, Sone ...

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