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United States v. Pearson

United States District Court, D. Montana, Billings Division

January 23, 2018

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
CAROL LYNETTE PEARSON, Defendant/Movant.

          ORDER DENYING § 2255 MOTION AND DENYING CERTIFICATE OF APPEALABILITY

          Susan P. Watters United States District Court.

         This 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.

         On December 15, 2017, the Court sought clarification from Pearson on two points relevant to her motion. She responded on January 2, 2018.

         I. Preliminary Review

         Before 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.

         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). 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.

         II. Background

         A grand 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).

         If 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.

         The 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 24:14-26:20.

         The 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.

         Under 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. ¶ 93.

         Pearson 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.

         At the 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.[1]

         Pearson 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.

         Pearson's 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).

         III. ...


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