United States District Court, W.D. Oklahoma
TIMOTHY D. DEGIUSTI, UNITED STATES DISTRICT JUDGE.
the Court is Defendant Paul Eugene Thomas's pro
se Motion Under 28 U.S.C. § 2255 to Vacate, Set
Aside or Correct Sentence [Doc. No. 225]. The government has
filed a response [Doc. No. 227], accompanied by the affidavit
of Defendant's trial counsel, Jeffery W. Massey [Doc. No.
227-1]. Also, Defendant has made an additional submission
[Doc. No. 228], which is liberally construed as a supplement
to the Motion. For reasons that follow, the Court finds that
no hearing is needed and the Motion should be
and Procedural Background
August 18, 2015, a federal grand jury charged Defendant and
three others with conspiracy to possess with intent to
distribute, and to distribute, phencyclidine (PCP) in
violation of 21 U.S.C. § 846. Defendant was also charged
with one count of distributing PCP and another count of
possessing with intent to distribute PCP, both in violation
of 21 U.S.C. § 841(a)(1). One co-defendant, Larenzo
Gabourel, was charged with possessing a firearm in
furtherance of the drug trafficking crimes, in violation of
18 U.S.C. § 924(c)(1)(A). The statutory penalty for the
conspiracy charged in the Indictment was a mandatory minimum
prison sentence of 10 years and a maximum term of life
imprisonment. See 21 U.S.C. § 841(b)(1)(A).
Defendant was arrested in Los Angeles, California, in October
2015, and arraigned in this district on November 23, 2015.
experienced criminal defense attorney, Mr. Massey, was
appointed to represent Defendant at his arraignment.
Negotiations between the parties subsequently resulted in a
plea agreement, and Defendant pleaded guilty on January 8,
2016, to a reduced charge of conspiracy to possess with
intent to distribute PCP. The statutory penalty for the
conspiracy charged in the Superseding Information was a term
of imprisonment of not less than five years and not more than
40 years. See 21 U.S.C. § 841(b)(1)(B). The
plea agreement obligated the government to move to dismiss
the Indictment at sentencing, and the government agreed
Defendant should receive the maximum downward adjustment for
acceptance of responsibility in computing an advisory
guideline range of imprisonment under the Sentencing
Guidelines. See Plea Agreement [Doc. No. 71], ¶
7. Defendant waived his right to appeal or collaterally
challenge his conviction and sentence except under limited
circumstances, including a collateral challenge “with
respect to claims of ineffective assistance of
counsel.” See id. ¶ 8(c).
co-defendants, Wesley Grant and Mr. Gabourel, proceeded to
trial in January 2016, and Defendant testified on behalf of
the government. A jury found Messrs. Grant and Gabourel
guilty of all offenses charged against them in the
Indictment. On July 15, 2016, Mr. Grant was sentenced to life
imprisonment, and on July 27, 2016, Mr. Gabourel received a
180-month prison sentence, which included a mandatory
60-month term for the firearm offense.
a presentence investigation report regarding Defendant was
prepared and disclosed to counsel on May 3, 2016. After an
opportunity for objections, changes were made, and
Defendant's final presentence report was presented on May
26, 2017. It included the following findings for purposes of
the Sentencing Guidelines: Defendant was accountable for 2.74
kilograms of PCP, resulting in a base offense level of 30
under § 2D1.1(c)(5); a two-level enhancement applied
because a firearm was possessed during the drug conspiracy,
see Id. § 2D1.1(b)(1); a two-level enhancement
applied for maintaining a premises for the purpose of storing
and distributing PCP, see Id. § 2D1.1(b)(12);
and a three-level decrease applied for acceptance of
responsibility, see § 3E1.1. The total offense
level of 31 and a criminal history category of V yielded a
guideline range of imprisonment of 168 to 210 months.
Immediately before sentencing, the government filed a motion
for a downward departure pursuant to U.S.S.G. § 5K1.1
and 18 U.S.C. § 3553(e). The motion was granted, and the
Court sentenced Defendant on August 23, 2016, to a 36-month
term of imprisonment. Defendant did not appeal, but filed the
instant § 2255 Motion on July 6, 2017.
asserts a single claim for relief: “Counsel was
ineffective for failing to object to the Court's
imposition of a 2 point gun enhancement [under]
2D1.1(b)(1).” See Def.'s Mot. [Doc. No.
225] at 4. Defendant alleges that he asked after sentencing
why Mr. Massey did not object to the enhancement and Mr.
Massey said “he forgot to.” Id.
Defendant contends he did not know Mr. Gabourel possessed a
firearm and the firearm enhancement should not apply under
the circumstances of his offense. To support his claim,
Defendant presents a letter that Mr. Massey wrote to the
Bureau of Prisons in April 2017 to support Defendant's
request to participate in the “RDAP
program.” See id., Attach. 1 at 3 (ECF
numbering). Mr. Massey explains in the letter both why he did
not “[f]or strategic reasons” file an objection
to the presentence report and why Defendant should not be
held accountable for Mr. Gabourel's possession of a
firearm that was not disclosed to any of his codefendants.
See id. Mr. Massey further explains in the
affidavit submitted with the government's response to the
Motion, the numerous reasons why he strategically chose not
to file any objections to the presentence report and chose
not to object to the firearm enhancement at the sentencing
hearing. See Massey Aff. [Doc. No. 227-1],
makes clear in his Motion, as in prior correspondence and
court filings, that he is “not asking to be
resentence[d]” but only wants the Court “to wave
[sic] or remove [his] 2 point gun enhancement.”
See Def.'s Mot. [Doc. No. 225] at 12 &
Attach. 1 [Doc. No. 225-1] at 1 (ECF numbering); see
also Def.'s Suppl. [Doc. No. 228] at 1 (repeating
request); 3/21/17 Order [Doc. No. 210] (denying pro
se motion “to waive or ‘remove [his] 2 point
gun enhancement'”). Defendant explains that he is
now enrolled in RDAP but the firearm enhancement will affect
his eligibility for a sentence reduction if he successfully
completes the program. See Def.'s Mot., Attach.
1 [Doc. No. 225] at 1; Def.'s Suppl. [Doc. No. 228] at 1;
see also 18 U.S.C. § 3621(e)(2)(B) (authorizing
Bureau of Prisons to reduce a nonviolent offender's time
in custody after successfully completing treatment); 28
C.F.R. § 550.55 (providing conditions of eligibility and
establish ineffective assistance of counsel, Defendant must
demonstrate both that counsel's performance was deficient
and that the deficiency prejudiced the defense. See Smith
v. Duckworth, 824 F.3d 1233, 1249 (10th Cir. 2016).
“An insufficient showing on either element is fatal to
an ineffective-assistance claim, rendering consideration of
the other element unnecessary.” Id. In
assessing the performance prong of an ineffective assistance
claim, “a court must indulge a strong presumption that
counsel's conduct falls within the wide range of
reasonable professional assistance.” Strickland v.
Washington, 466 U.S. 668, 689 (1984). To prove deficient
performance, a defendant must demonstrate that his
counsel's performance “fell below an objective
standard of reasonableness” (id. at 688), that
is, it was “‘completely unreasonable, not merely
wrong.'” Byrd v. Workman, 645 F.3d 1159,
1167 (10th Cir. 2011) (quoting Hooks v. Workman, 606
F.3d 715, 723 (10th Cir. 2010)). To prove 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.”
Strickland, 466 U.S. at 694.
with regard to counsel's performance, the existing record
refutes any claim that Mr. Massey simply forgot to challenge
the 2-point firearm enhancement that was used to calculate
Defendant's advisory guideline range of imprisonment. Mr.
Massey had stated before Defendant's Motion was filed,
and explains in considerable detail in response to the
ineffective assistance claim, that he made a conscious
decision not to object to the enhancement. Defendant does not
claim that Mr. Massey failed to take into account any
relevant fact or legal principle in reaching this decision.
Therefore, because the decision was “an adequately
informed strategic choice” and “was not so
patently unreasonable ...