United States District Court, D. Montana, Billings Division
ORDER DENYING § 2255 MOTION AND DENYING
CERTIFICATE OF APPEALABILITY
P. Watters United States District Court.
case comes before the Court on Defendant/Movant Pearson's
motion to vacate, set aside, or correct the sentence,
pursuant to 28 U.S.C. § 2255. Pearson is a federal
prisoner proceeding pro se.
December 15, 2017, the Court sought clarification from
Pearson on two points relevant to her motion. She responded
on January 2, 2018.
the United States is required to respond, 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." 28 U.S.C. § 2255(b); see
also Rule 4(b), Rules Governing Section 2255 Proceedings
for the United States District Courts.
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). But
"it is the duty of the court to screen out frivolous
applications and eliminate the burden that would be placed on
the respondent by ordering an unnecessary answer."
Advisory Committee Note (1976), Rule 4, Rules Governing
§ 2254 Cases, cited in Advisory Committee Note
(1976), Rule 4, Rules Governing § 2255 Proceedings.
jury indicted Pearson on one count of conspiracy to possess
five or more grams of actual methamphetamine with intent to
distribute, a violation of 21 U.S.C. §§ 846 and
841(a)(1) (Count 1); one count of possessing five or more
grams of actual methamphetamine with intent to distribute, a
violation of 21 U.S.C. § 841(a)(1); and two counts of
distributing a substance containing a detectable amount of
methamphetamine, violations of 21 U.S.C. § 841(a)(1)
(Counts 3 and 4). See Indictment (Doc. 1) at 1-3.
Assistant Federal Defender David Merchant was appointed to
represent Pearson. See Order (Doc. 11).
convicted on Counts 1 or 2, Pearson faced a mandatory minimum
sentence of at least five years in prison and a maximum of 40
years. See 21 U.S.C. § 841(b)(1)(B)(viii). If
she had a "prior conviction for a felony drug
offense" and the United States complied with 21 U.S.C.
§ 851(a), Pearson faced a mandatory minimum sentence
often years and a maximum of life. See Id. §
841 (b)(1)(A)(viii); see also Change of Plea Tr.
(Doc. 57) at 12:17-13:10.
parties reached a plea agreement. Pearson agreed to plead
guilty to Count 1, the conspiracy count, and waived her right
to appeal the sentence or pursue a collateral attack except
for claims of ineffective assistance. See Plea
Agreement (Doc. 31) at 2 ¶ 2, 7 ¶ 9. The United
States agreed to dismiss Counts 2 through 4, to seek a
three-level downward adjustment for acceptance of
responsibility, and to seek a downward variance if
Pearson's guideline calculation included an enhancement
for money laundering. See Id. at 2 ¶ 2, 6
¶ 6. Pearson pled guilty in open court on October 14,
2015. See Minutes (Doc. 35). She stated she did not
disagree with anything the United States said it was able to
prove. See Change of Plea Hr'g (Doc. 57) at
United States Probation Office drafted a presentence report.
The offense conduct portion of the report recited, in
essence, the United States' Offer of Proof. Officers
conducted three controlled buys near a residence on South
34th Street in Billings. Pearson was believed to have
provided a total of 9.5 grams of a substance containing
methamphetamine. After these three purchases, officers
obtained warrants for the residence Pearson appeared to be
operating out of, a storage locker registered to her, and her
vehicle. Excluding items found in the residence, the warrant
returns from Pearson's car and storage locker included
44.29 grams of methamphetamine, 91.8 grams of cocaine, and
cash. The methamphetamine found in Pearson's vehicle was
divided into 38 separate baggies. See Presentence
Report ¶¶ 8-13.
the usual guidelines procedure where multiple drugs are
involved, the draft report determined the base offense level
by converting the methamphetamine and cocaine to marijuana.
See U.S.S.G. § 2D1.1 Application Note 8(B),
(D). The draft report arrived at a base offense level of 28.
With a three-point reduction for acceptance of
responsibility, Pearson's total offense level was 25.
Although Pearson had four prior felony drug convictions,
see Id. ¶¶ 34, 36, 37, 39, she had only
five criminal history points, putting her in criminal history
category III, see Id. ¶ 42. Her advisory
guideline range was 70 to 87 months. See Id. ¶
objected to the draft report's calculation of the drug
quantity. See Fed. R. Crim. 32(f). Her counsel
argued that the entire weight of the substances containing
methamphetamine, rather than the weight of the actual
methamphetamine, should have been converted to marijuana.
See Presentence Report at 20. The difference is
significant. The entire weight includes the weight of
"cut" used to dilute the controlled substance; the
weight of the actual methamphetamine excludes any cut. To
account for the different purities, the conversion factor is
higher for actual methamphetamine and lower for a substance
containing methamphetamine. One gram of a substance
containing methamphetamine is deemed equivalent to 2
kilograms of marijuana, but one gram of actual
methamphetamine is deemed equivalent to 20 kilograms of
marijuana. See U.S.S.G. § 2D1.1 Application
Note 8(D) at 160 (Nov. 1, 2015). Counsel's objection,
however, failed to persuade the probation officer. She
declined to revise the report.
sentencing hearing, counsel abandoned his previous objection.
See Sentencing Tr. (Doc. 55) at 5:4-22. With minor
corrections to the draft report's drug amounts, see
Id. at 3:16-4:21, the Court held Pearson responsible for
41.29 grams of actual methamphetamine, 3.1 grams of a
substance containing methamphetamine, and 98.7 grams of
cocaine. Combined, these substances were equivalent to 851.74
kilograms of marijuana, corresponding to a base offense level
of 28. See Presentence Report ¶¶ 14, 20.
The presentence report was amended after sentencing to
reflect these minor corrections; the version on file is the
final, corrected version.
appealed. Counsel filed an Anders brief and moved to
withdraw. See Anders v. California, 386 U.S. 738,
744-45 (1967). The appellate court reviewed the record and
found no potential grounds for relief. Pearson's claims
against her counsel were dismissed as more appropriately
pursued under 28 U.S.C. § 2255. Pearson's conviction
was affirmed and her sentencing appeal was dismissed on
January 23, 2017. See Mem. (Doc. 60) at 1-2.
conviction became final on April 24, 2017. See Gonzalez
v. Thaler, 565 U.S. 134, 150 (2012). She timely filed
her § 2255 motion on May 26, 2017. See 28
U.S.C. § 2255(f)(1).