United States District Court, W.D. Louisiana, Lake Charles Division
RULING AND REASONS
the Court is a "Motion Under 28 U.S.C. § 2255 to
Vacate, Set Aside, Or Correct Sentence By a Person in Federal
Custody" (Doc. #236") wherein defendant, Eric
Beloney, complains of ineffective counsel for his failure to
investigate and object to a 2 level enhancement for
possession of a firearm. Beloney argues that at his
sentencing, defense counsel's failure to object deprived
him of 37 months as well as the benefit of the RDAP program.
For the reasons that follow, the § 2255 motion will be
denied and dismissed.
convicted defendant's claim that counsel's assistance
was so defective as to require reversal of his sentence has
two components: (1) counsel's performance was deficient,
meaning that it fell below an objective standard of
reasonableness, and (2) the deficient performance prejudiced
the defense. This requires a showing that counsel's
errors were so serious that counsel was not functioning as
the "counsel" guaranteed the defendant by the Sixth
Amendment. The court need not address the two
Strickland prongs in any particular order, and the
defendant's failure to satisfy one means the court need
not consider the other.
establishing deficient performance, the defendant must
demonstrate that counsel's "acts or omissions were
outside the wide range of professionally competent
assistance." "Given the almost infinite variety of
possible trial techniques and tactics available to counsel,
[the reviewing court] is careful not to second guess
legitimate strategic choices." In short,
"Strickland does not guarantee perfect
representation, only a reasonably competent
regard to the prejudice prong, "the 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." With specific
regard to sentencing, the defendant must demonstrate a
reasonable probability that, but for counsel's errors
with respect to sentencing matters, he would have received
less time in prison.
was arrested after a traffic stop of a vehicle he operated
which resulted in a probable cause search of his vehicle. As
a result of the search, the Combined Anti-Drug Task Force
(the "Task Force") found and seized a small amount
of marijuana and 16 grams of crack cocaine, along with nine
(9) pounds of cocaine and U.S. currency totaling $9, 683.00.
The Task Force then obtained a search warrant for
defendant's residence which resulted in the seizure of a
High-Point handgun, ammunition and several illegal
narcotics. Beloney plead guilty to Count 2 of the
Indictment-possession "with intent to distribute 500
grams or more of a mixture or substance containing a
detectable amount of cocaine."
complains that there was no evidence or documents stating
that the residence was his or that he possessed a firearm or
had knowledge of the firearm. Beloney argues that the
Government failed to present any evidence to satisfy the
preponderance of evidence standard that Beloney had any
knowledge of the firearm that was confiscated.
notes that at the time of his arrest, he did not have a gun;
the gun was later found at a residence the Government
"claims was his." Thus, he maintains that the
Government did not prove at sentencing that he was entitled
to a 2-level gun enhancement. Beloney suggests that had his
counsel objected to the gun enhancement, the Court would have
more likely sentenced him at an offense level 29 with a
Category VI which is 151 months as opposed to 188 months,
noting the difference of 37 months.
also reminds the Court that it had recommended to the Bureau
of Prisons that he be allowed to participate in the RDAP
500-hour drug program which requires a "no finding of
violence." Thus, Beloney argues that defense
counsel's failure to object to the gun enhancement
prejudiced him because had he been able to complete the RDAP
program, he would be entitled to a further 12-month reduction
in his sentence.
of his Plea Agreement, Beloney stipulated to the factual
basis as follows:
Subsequent to the traffic stop, law enforcement conducted a
search warrant at BELONEY'S residence. During the
execution of the search warrant, law enforcement recovered
additional controlled substances, approximately $3, 432.00 in
U.S. currency, and a Hi-Point .40 caliber handgun, serial
number X773517 that had been reported stolen through the Lake
Charles Police Department.
made no objection to the Stipulated Factual Basis during his
guilty plea and confirmed to this Court that these facts were
entirely accurate. At sentencing, Beloney admitted to the
facts contained in the Pre-Sentencing Report. Furthermore,
at his sentencing Beloney was given the opportunity to speak
but again he failed to challenge or object to the
Pre-Sentencing Report and/or the factual basis.
Government maintains that this Court's imposed sentence
of 188 months' imprisonment remains sound and Beloney is
not entitled to relief under 28 U.S.C. § 2255. The
Government argues that because Beloney's advisory range
was ultimately determined under the 4B 1.1(b) "career
offender" provisions, the firearm enhancement ...