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United States v. Bunting

United States District Court, W.D. Oklahoma

April 19, 2017




         Before the Court is Defendant Stoneham Bunting's Motion to Vacate, Set Aside or Correct Sentence [Doc. No. 150], filed pursuant to 28 U.S.C. § 2255. The government has filed a response [Doc. No. 160], accompanied by an affidavit of Defendant's original counsel, Jack Dempsey Pointer [Doc. No. 160-1], and a transcript of the plea hearing held on January 15, 2015 [Doc. No. 160-2]. For reasons that follow, the Court finds that no hearing is needed and the Motion must be denied.[1]

         Factual and Procedural Background

         A law enforcement investigation of a drug trafficking organization revealed that Defendant was a source of cocaine for a target of the investigation, Terry Wilkerson. During surveillance, agents observed Mr. Wilkerson enter Defendant's jewelry store to purchase cocaine for sale to an undercover officer. Agents later executed search warrants at Defendant's residence and jewelry store, and seized evidence that included a .38 caliber revolver and a shotgun. Defendant was interviewed after the search and admitted his involvement in selling cocaine to Mr. Wilkerson. He was arrested on a criminal complaint. On May 6, 2014, a federal grand jury charged Defendant, Mr. Wilkerson, and two others with conspiring to possess with intent to distribute, and to distribute, five kilograms or more of cocaine in violation of 21 U.S.C. § 846. See Indictment [Doc. No. 29]. The penalty for this offense is provided by 21 U.S.C. § 841(b)(1)(A), which mandates a minimum prison term of 10 years and authorizes a maximum sentence of life imprisonment.[2]

         An experienced criminal defense attorney, Mr. Pointer, was appointed to represent Defendant at his initial appearance. Negotiations between the parties resulted in a plea agreement and the filing of the Superseding Information [Doc. No. 92] on November 25, 2014, charging Defendant with conspiracy to possess with intent to distribute and to distribute an unspecified quantity of cocaine. The maximum penalty for this offense is a 20-year term of imprisonment; there is no mandatory minimum prison sentence. See 21 U.S.C. § 841(b)(1)(C). In the plea agreement, the parties stipulated that the amount of cocaine involved in the offense was 3.5 kilograms. See Plea Agreement [Doc. No. 93], ¶ 7. As part of the agreement, Defendant waived his right to appeal or collaterally challenge his conviction and sentence except under limited circumstances; one exception is a collateral attack based on “claims of ineffective assistance of counsel that relate specifically to the validity of the defendant's guilty plea or the [appeal and collateral challenge] waivers in this paragraph.” See id. ¶ 8(c). The government agreed to dismiss the Indictment at sentencing, and agreed that Defendant should receive the maximum downward adjustment for acceptance of responsibility in computing an advisory guideline range of imprisonment under the Sentencing Guidelines. See id. ¶ 7.

         Defendant entered a plea of guilty to the Superseding Information on January 15, 2015. Shortly after the plea hearing, Defendant communicated with the Court in writing. Due to the nature of Defendant's concerns, the Court elected to file the letter under seal and to treat it as a pro se motion for appointment of substitute counsel.[3] The Court appointed Joseph G. Shannonhouse, IV as Defendant's attorney on February 13, 2015. Mr. Shannonhouse represented Defendant in all subsequent proceedings, primarily related to the presentence investigation report and sentencing.

         The final presentence report included the following findings for purposes of the Sentencing Guidelines: Defendant was accountable for 4.536 kilograms of cocaine, resulting in a base offense level of 28, see § 2D1.1(c)(6);[4] a two-level enhancement applied for possessing a firearm in connection with the drug offense, see § 2D1.1(b)(1); a two-level enhancement applied for maintaining a premises for the purpose of distributing a controlled substance, see § 2D1.1(b)(12); and a three-level decrease applied for acceptance of responsibility, see § 3E1.1. The total offense level of 29 and a criminal history category of II yielded a guideline range of imprisonment of 97 to 121 months. Defendant was sentenced on March 30, 2016, to a 36-month term of imprisonment. He did not appeal, but filed the instant § 2255 Motion on November 9, 2016.

         Defendant's Claims

         It is unclear from Defendant's Motion exactly what claims he intends to assert. In the introduction and by similar language in a prayer for relief, Defendant asks the Court to “vacat[e] the enhancement of two points for a Felony [sic] in possession of a Weapon” and “order the Bureau of Prisons, RDAP program to grant him a reduction in sentence upon his completion of the requirements of the program.” See Def.'s Mot. Vacate [Doc. No. 150] (hereafter “Motion”) at 1, 7.[5] As a ground for relief, Defendant claims the dangerous weapon enhancement of § 2D1.1(b)(1) is “illegal” under Johnson v. United States, 135 S.Ct. 2551 (2015). See Motion at 2, 4.[6] Defendant erroneously invokes Johnson, which invalidated a provision of the Armed Career Criminal Act, 18 U.S.C. § 924(e)(1), and has no bearing on his case. Defendant also seems to claim the weapon enhancement was affected by a subsequent decision of the Tenth Circuit in United States v. Little, 829 F.3d 1177 (10th Cir. 2016). See Motion at 3. However, Little decided an element of proof to establish constructive possession of a firearm for an offense under 18 U.S.C. § 922(g)(1), and is similarly inapposite. In essence, Defendant simply contends the government failed to prove the applicability of the firearm enhancement of the Sentencing Guidelines to his drug offense.

         Defendant made no objection to this enhancement at the time of sentencing, did not appeal his sentence, and expressly waived any collateral challenge to his sentence under the terms of his plea agreement. The government invokes the waiver as a bar to this claim. See Pl.'s Resp. Br. [Doc. No. 160] at 7. Defendant presents no basis to invalidate the waiver, other than a possible claim of ineffective assistance of counsel with respect to his guilty plea, discussed infra. The Tenth Circuit has established that a collateral-challenge waiver is generally enforceable, and none of the other factors relevant to enforceability is implicated here. See United States v. Hahn, 359 F.3d 1315, 1325 (10th Cir. 2004) (en banc) (appellate waiver); United States v. Viera, 674 F.3d 1214, 1217-18 (10th Cir. 2012) (collateral-rights waiver). Defendant's plea petition, the plea colloquy, and his sworn testimony at the plea hearing establish that the waiver of collateral rights was knowing and voluntary. See 1/15/15 Hr'g Tr. 8:19-9:15, 11:23-13:21, 15:3-16:3. The Court found Defendant's guilty plea was knowing and voluntary before accepting it. See id. 16:7-13.

         Defendant also asserts as a ground for relief that he received ineffective assistance of counsel. See Motion at 2, 5-7. Defendant primarily complains about the lack of a sentencing objection to the firearm enhancement of § 2D1.1(b)(1). Id. at 6-7.[7] Liberally construing the Motion due to his pro se status, however, Defendant arguably claims that Mr. Pointer failed to advise him during plea negotiations that the weapon enhancement could increase his sentencing guideline range and that it could prevent him from later receiving a sentence reduction from the Bureau of Prisons if he completed the RDAP program. See supra note 5. Defendant states:

Defense counsel left the Petitioner with a false conclusion that because of the court[']s recommendation to take the RDAP program he would in fact receive the year reduction in his sentence. This ineffective assistance caused the petitioner to accept the plea deal offered when in fact [he] has not received the benefits of the deal.

See Motion at 7. A claim of ineffective assistance of counsel that relates specifically to the validity of Defendant's guilty plea is not waived by the parties' plea agreement.[8]

         Standard ...

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