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United States v. Kesselman

United States District Court, D. Montana, Butte Division

February 27, 2018

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
IRAN MICHAEL KESSELMAN, Defendant/Movant.

          ORDER

          Brian Morris United States District Court Judge

         This case comes before the Court on Defendant/Movant Kesselman's amended motion to vacate, set aside, or correct his sentence, pursuant to 28 U.S.C. § 2255. Kesselman is a federal prisoner proceeding with counsel. The United States has filed an Answer and Kesselman a Reply. Kesselman seeks a new sentencing hearing.

         I. Background

         A grand jury indicted Kesselman on one count of conspiracy to possess 500 grams or more of a substance containing methamphetamine with intent to distribute in violation of 21 U.S.C. §§ 846 and 841(a)(1); and one count of possessing 500 grams or more of a substance containing methamphetamine with intent to distribute it, or aiding and abetting such possession in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. The offenses were alleged to have occurred between February 2008 and July 2012. (Indictment, Doc. 1 at 2-3). If convicted on Count 1 or Count 2, Kesselman faced a ten-year mandatory minimum sentence and a maximum sentence of life in prison. 21 U.S.C. § 841(b)(1)(A)(viii).

         Kesselman and the United States filed a plea agreement. In exchange for dismissal of the Indictment, Kesselman pled guilty to a superseding Information charging him with one count of conspiracy to possess an unspecified quantity of methamphetamine. The maximum penalty under the Superseding Information was 20 years in prison. No. mandatory minimum term applied. See 21 U.S.C. § 841(b)(1)(C). The United States filed an offer of proof with the plea agreement. The offer of proof stated, in part, that the Government could present evidence that “[m]ore than 30 ounces, ” or 850.5 grams, “of a substance containing methamphetamine was involved in this conspiracy.” (Offer of Proof, Doc. 50 at 4 ¶ 4).

         Kesselman pled guilty in open court on September 10, 2013. (Minutes, Doc. 58). Asked whether he disagreed with anything in the offer of proof, Kesselman responded: “It's just the quantity. It seems to be way, way out of line, and I don't think there's any proof of that kind of quantity.” (Change of Plea Tr., Doc. 93 at 30:22-31:6). Asked what he thought the quantity was, Kesselman said, “I think it would be about 14 ounces [396.9 grams]. It could be in that range there.” (Id. at 31:15-21).

         The United States Probation Office drafted a presentence report. Kesselman did not object to its findings either in his sentencing memorandum or at sentencing. Kesselman asked instead that the Court limit the sentence to 180 months in view of Kesselman's age. (Sentencing Mem., Doc. 71 at 3; Sentencing Tr., Doc. 97 at 4:4-10).

         Kesselman's base offense level of 34 corresponded to his responsibility for 1.5 to 5 kilograms of methamphetamine. Kesselman also received a two-level upward adjustment as a leader or organizer and a three-level downward adjustment for acceptance of responsibility. His total offense level landed at 33. A level 33 translated to a criminal history category of VI.

         In light of the 20-year statutory maximum, the advisory guideline range was reduced from 235 to 290 months to 235 to 240 months. U.S.S.G. § 5G1.1(c)(1). Judge Haddon found the appropriate sentence was 240 months. Judge Haddon reduced that term by 16 months to account for time Kesselman already had served on a concurrent state sentence. See U.S.S.G. § 5G1.3(b). The Court sentenced Kesselman to serve 224 months in prison, concurrent with his state sentence, followed by a three-year term of supervised release. (Minutes, Doc. 77; Judgment, Doc. 78 at 2-3; Sentencing Tr., Doc. 97 at 4:16-5:12, 16:5-23).

         Kesselman appealed. Counsel filed a motion to withdraw. See Anders v. California, 386 U.S. 738 (1967). After independently reviewing the record, the Ninth Circuit determined that no arguable basis for relief against the conviction existed and affirmed it. The Ninth Circuit also enforced Kesselman's waiver of his right to appeal the sentence and dismissed that portion of the appeal. (See Mem., Doc. 110 at 1-2, United States v. Kesselman, No. 13-30375 (9th Cir. Aug. 28, 2014)).

         Kesselman filed a motion for sentence reduction under 18 U.S.C. § 3582(c)(2) and Amendments 782 and 788 to the United States Sentencing Guidelines on March 6, 2015. Application of the Amendments lowered Kesselman's base offense level from 34 to 32. The Court imposed an amended sentence of 215 months. (Am. Judgment, Doc. 140 at 1).

         Kesselman signed his motion under 28 U.S.C. § 2255 on November 18, 2015. (Mot. § 2255, Doc. 149 at 6). The Court will assume that he mailed it that day. Houston v. Lack, 487 U.S. 266, 270-71 (1988) (establishing prison mailbox rule).

         II. Claims

         Kesselman alleges that counsel provided ineffective assistance of counsel at sentencing because he failed to object to the drug quantity and failed to object to a two-level enhancement for a leading or organizing role in the conspiracy. Kesselman contends that counsel should have advised the sentencing court of his efforts to cooperate with law enforcement and asserts that he suffered prejudice from counsel's cumulative errors. (See Am. § 2255 Mot., Doc. 168 at 17, 21, 29, 33).

         Strickland v. Washington, 466 U.S. 668 (1984), governs these claims. At this stage, Kesselman must allege facts sufficient to support an inference that counsel's performance fell below an objective standard of reasonableness. Id. at 687-88. He also must show “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694. “A reasonable probability is a ...


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