United States District Court, D. Montana, Butte Division
ORDER DENYING § 2255 MOTION AND DENYING CERTIFICATE OF APPEALABILITY
DONALD W. MOLLOY, District Judge.
On June 9, 2014, Defendant/Movant Alexander William Fetters filed a motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. He supplemented his motion on December 10, 2014. Fetters is a federal prisoner proceeding pro se.
I. Procedural Posture of the Case
On November 6, 2014, Fetters was ordered to explain a few of his allegations in more factual detail. On December 1, 2014, the Court received from Fetters a 51-page handwritten explication of the meaning of Apprendi v. New Jersey, 530 U.S. 466 (2000), and some of its progeny. On December 4, 2014, the Court received a motion seeking 30 additional days to respond to the Order of November 6. Fetters did not mention his virtually contemporaneous 51-page submission. And on December 10, 2014, the Court received a motion to amend (Doc. 152), asking the Court to accept the typewritten responses to the Order of November 6, 2014 (Docs. 152-1 and 152-2), as an amendment to the original § 2255 motion.
Because Fetters has responded twice to the Order of November 6, 2014, his motion for extension of time to respond to it is moot. In addition, the Court does not require additional "applicable argument and supporting case law." Mot. for Extension (Doc. 151) at 1, 2. The Court will consider Fetters' typewritten responses to the November 6 Order because the handwritten response is difficult to read and because Fetters asks the Court to accept the typewritten versions in lieu of the handwritten version. See Mot. to Amend (Doc. 152) at 1-2.
Based on resolution of those matters, it is appropriate to rule on Fetters' motion under 28 U.S.C. § 2255 as filed on June 9, 2014 (Doc. 146), and as supplemented in response to the Order of November 6, 2014 (Docs. 152-1, 152-2).
On January 6, 2010, the grand jury handed down an Indictment charging Fetters and three co-defendants with one count of conspiracy to distribute more than 500 grams of a substance containing methamphetamine, a violation of 21 U.S.C. §§ 846 and 841(a)(1) ("Count 1"). Indictment (Doc. 1) at 2. Based on the drug quantity, Fetters was subject to a mandatory minimum penalty of ten years in prison and a maximum of life. 21 U.S.C. § 841(b)(1)(A) & (viii).
On February 10, 2010, the United States filed an Information under 21 U.S.C. § 851, alleging that Fetters had previously been convicted of felony possession of dangerous drugs in Silver Bow County, Montana. Information (Doc. 47). Filing of the Information subjected Fetters to a mandatory minimum sentence of 20 years if convicted of Count 1. 21 U.S.C. § 841(b)(1)(A) & (viii). But on February 26, 2010, the United States moved to withdraw the Information, explaining that the circumstances of the state felony drug offense did not justify application of the enhanced penalty under 21 U.S.C. §§ 841(b) and 851. The motion was granted on March 3, 2010. Mot. to Withdraw (Doc. 58); Order (Doc. 64).
On March 2, 2010, Fetters filed a fully executed plea agreement. On March 17, 2010, Fetters pled guilty to Count 1 in open count before United States Magistrate Judge Jeremiah C. Lynch. Minutes (Doc. 76).
While a presentence report was being prepared, Fetters debriefed with law enforcement in the hope of earning a motion under U.S.S.G. § 5K1.1. Because he fabricated the information he gave to case agents, he was not successful. See Presentence Report ¶¶ 30-33.
Based on his criminal history, Fetters was designated a career offender under U.S.S.G. § 4B1.1. His total offense level under the advisory sentencing guidelines was 34. His criminal history category was VI. The guideline range was 262-327 months. U.S.S.G. ch. 5 Part A (Sentencing Table). Fetters was sentenced to serve 300 months in prison, to be followed by a five-year term of supervised release. Judgment (Doc. 109) at 2-3.
Fetters appealed. The judgment was affirmed. Mem. at 2, United States v. Fetters, No. 10-30201 (9th Cir. Apr. 11, 2011) (Doc. 143). Rehearing was denied on August 12, 2011. Order at 1, Fetters, No. 10-30201 (9th Cir. Aug. 12, 2011) (Doc. 144).
Fetters filed his § 2255 motion on June 9, 2014.
III. Claims and Analysis
Although one or more claims in the § 2255 motion may well be subject to dismissal with prejudice as untimely or as barred on procedural grounds, it is more efficient to address Fetters' claims on the merits.
A. Sentencing Disparity
Fetters contends there was an unwarranted disparity between his sentence of 300 months and that of "the leader of the conspiracy." Mot. § 2255 (Doc. 146) at 15; see generally 18 U.S.C. § 3553(a)(6). "[T]he manager or leader in Montana" was Anthony Kerner. Kerner was convicted in a separate prosecution and sentenced to serve 204 months in prison. Kerner's supply came from Fetters, who was in Arizona. See, e.g., Presentence Report ¶¶ 5, 28. Contrary to Fetters' claim that the Court committed procedural error by failing to consider his argument with respect to Kerner, that argument was expressly addressed and rejected at sentencing. Kerner, ten years older than Fetters, had less criminal history. Compare Mot. § 2255 at 13-15 with Sentencing Tr. (Doc. 137) at 28:22-29:2, 42:21-43:3. Moreover, Fetters was dishonest in his debriefing with agents, and Kerner was not. The disparity between the two was not unwarranted.
In addition, this claim was expressly addressed by the Court of Appeals and cannot be relitigated. See United States v. Renteria, 557 F.3d 1003, 1006-07 (9th Cir. 2009); United States v. Phillips, 367 F.3d 846, 856 & nn.32-35 (9th Cir. 2004); ...