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United States v. Lovenguth

United States District Court, D. Montana, Great Falls Division

January 4, 2018

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
JAMES LOVENGUTH, Defendant/Movant.

          ORDER DENYING § 2255 MOTION AND DENYING CERTIFICATE OF APPEALABILITY

          BRIAN MORRIS, UNITED STATES DISTRICT COURT JUDGE

         This case comes before the Court on Defendant/Movant Lovenguth's motion to vacate, set aside, or correct his sentence, pursuant to 28 U.S.C. § 2255. Lovenguth is a federal prisoner proceeding with counsel.

         I. Preliminary Review

         The Court must determine whether “the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief” before ordering a response from the United States. 28 U.S.C. § 2255(b); see also Rule 4(b), Rules Governing Section 2255 Proceedings for the United States District Courts. A petitioner “who is able to state facts showing a real possibility of constitutional error should survive Rule 4 review.” Calderon v. United States Dist. Court, 98 F.3d 1102, 1109 (9th Cir. 1996) (“Nicolas”) (Schroeder, C.J., concurring) (referring to Rules Governing § 2254 Cases). The Court otherwise should deny a § 2255 motion without ordering a response. See Advisory Committee Note (1976), Rule 4, Rules Governing § 2254 Cases, cited in Advisory Committee Note (1976), Rule 4, Rules Governing § 2255 Proceedings.

         II. Background

         Lovenguth pled guilty to one count of conspiracy to possess with intent to distribute at least 50 grams of a substance containing methamphetamine (or at least five grams of actual methamphetamine) in violation of 21 U.S.C. §§ 846 and 841(a)(1). The United States dismissed three other charges: one count of possession with intent to distribute a substance containing a detectable amount of methamphetamine in violation of 21 U.S.C. § 841(a)(1); one count of receiving a firearm while under indictment; and one count of being an unlawful user of a controlled substance in possession of a firearm. See Plea Agreement (Doc. 28) at 2 ¶ 3; Indictment (Doc. 1) at 2-4; Judgment (Doc. 84) at 1.

         Lovenguth's base offense level was 29. He received a two-level upward adjustment because he possessed a firearm. See U.S.S.G. § 2D1.1(b)(1). A three-level reduction for acceptance of responsibility dropped his total offense level to 28. His criminal history category was I. The advisory guideline range was 87 to 108 months. See Presentence Report ¶¶ 23-33, 40, 83; Statement of Reasons (Doc. 85) at 1 ¶¶ I(A), III. The Court departed below the guideline range and imposed a sentence of 50 months. See Judgment at 2; 18 U.S.C § 3553(a).

         III. Lovenguth's Claims

         Lovenguth claims that he received the enhancement due to ineffective assistance of counsel. See Mot. § 2255 (Doc. 90) at 1. Lovenguth also contends the United States “did not live up to their part of the plea agreement.” Br. in Supp. of § 2255 Mot. (Doc. 91) at 4-7. He claims that its representation “that the gun charges would be dismissed” was contradicted by its “recommendation that the court use the gun enhancement at sentencing.” Id. at 4. He suggests the “lack of clarity” in the plea agreement should have defeated the enhancement. Id. at 5.

         IV. Analysis

         A. Ineffective Assistance of Counsel

         Strickland v. Washington, 466 U.S. 668 (1984), governs claims of ineffective assistance of counsel. At this stage of the proceedings, Lovenguth must allege facts sufficient to support an inference (1) that counsel's performance fell below an objective standard of reasonableness and (2) that there exists “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 687-88, 694.

         Lovenguth also could be understood to claim that counsel did not explain the prospect and effect of a guideline enhancement based on conduct underlying the dismissed charges. Strickland requires Lovenguth to show, however, that counsel had reasonable legal and factual support for objecting to the enhancement and also had a reasonable probability of prevailing at sentencing. Lovenguth says he was prejudiced because the finding that he possessed a firearm prevents him from obtaining placement in a pre-release center after he completes the Residential Drug Abuse Prevention program. See Mot. § 2255 at 3. Although prejudicial, it fails to meet the prejudice prong of the Strickland test. A defendant possesses entitlement to a new sentencing hearing only if counsel's deficient performance deprived him of a fair hearing in the first place. The fact that Lovenguth did not expect to receive a two-level enhancement at sentencing does not give him a right to void the enhancement. Strickland prejudice would be shown if Lovenguth would not have pled guilty had he known about the enhancement. Lovenguth admits that he does not seek “to proceed to trial or withdraw his guilty plea.” See Mot. § 2255 at 3.

         The question presented is whether counsel could have avoided the enhancement by having raised a timely objection. Application Note 11 provides that “[t]he enhancement should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense.” Officers executed a search of the residence Lovenguth shared with his co-defendant Trout. Officers found 78 grams of pure methamphetamine, ammunition, and four firearms, including a loaded Glock .40-caliber semiautomatic pistol in a holster and two rifles on or next to the bed in one of the bedrooms. See Presentence Report ¶ 15. Connection between the firearms and the drugs is not “clearly improbable” when firearms are readily accessible in an ...


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