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United States v. Doney

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

March 2, 2018




         Before the Court is Defendant Doney's “Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence By a Person in Federal Custody” (ECF No. 127.) Defendant Doney asserts three grounds in support of his motion.

         The motion is subject to preliminary review to 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. When this standard is met, a hearing is not necessary. Marrow v. United States, 772 F.2d 525, 526 (9th Cir. 1985). Moreover, section 2255 relief provides an extraordinary remedy, see United States v. Addonizio, 442 U.S. 178, 184, 99 S.Ct. 2235, 60 L.Ed.2d 805 (1979), and it is the petitioner's duty to prove entitlement to it by a preponderance of the evidence, see Farrow v. United States, 580 F.2d 1339, 1355 (9th Cir. 1978).

         I. Background.

         Defendant Doney was convicted by jury trial on November 4, 2004, of eight counts of drug trafficking (three counts of conspiracy to distribute marijuana, methamphetamine, and cocaine, and three counts of possession with intent to distribute) and two counts of related weapons-possession crimes. The jury also convicted Defendant of a forfeiture count relating to $31, 680 in U.S. currency and three firearms. Prior to the trial, on October 29, 2004, the government filed a section 851 Information (21 U.S.C. § 851) for the purpose of notifying the Defendant that upon conviction he would be subject to increased penalties based upon his two prior felony drug convictions. (ECF Nso. 67.)

         Following Defendant's conviction on November 5, 2004, the Court notified Defendant Doney that he had 10 days to affirm or deny his prior felony drug convictions as alleged in the government's section 851 Information. (ECF No. 80.) In response, on November 19, 2004, defense counsel filed a Notice that Defendant “by and through his counsel, ... affirms the prior felony drug convictions referenced in the information which gives notice of the United States' intention to seek an enhanced sentence.” (ECF No. 93.)

         Several months later, and just prior to sentencing, defense counsel filed a “Notice of Intent to Contest Enhanced Sentence, ” that simply asserted that “Defendant is not subject to a mandatory life sentence as a matter of law.” (ECF No. 95.) At his sentencing hearing, Defendant did not object to the government's allegation that he had the two prior felony drug convictions, but rather Defendant asserted that application of section 851 was unconstitutional because a life sentence was disproportionate to his crimes.

         Defendant was sentenced on March 3, 2005, to an aggregate sentence of life imprisonment followed by 180 consecutive months on the firearms counts. (ECF No. 107 at 2-3.) At the sentencing, Defendant pointed out that a life sentence was applicable to persons convicted of at least two violent felonies under the Three-Strikes Law of the Violent Crime Control and Law Enforcement Act of 1994, 18 U.S.C. § 3559(c); Defendant argued that a life sentence should not be imposed upon him because he had no violent felonies in his criminal history. The Court rejected this argument because it was plain that section 851 was applicable to the Defendant, and he could cite no authority to support his due process argument.

         Defendant appealed his conviction and sentence to the Ninth Circuit, which affirmed on June 23, 2006. United States v. Doney, 190 Fed.Appx. 532 (9th Cir. 2006) (unpublished), cert. denied, 127 S.Ct. 418 (Oct. 10, 2006). The Circuit panel specifically rejected Defendant's due process argument, “finding [the § 841(b)] sentencing scheme to have a rational basis because Congress can choose to treat drug crimes as seriously as violent crimes.” United States v. Doney, 190 Fed.Appx. at 534.

         After his appeal was concluded, Defendant did not file a section 2255 motion within the one-year limitations period. Instead, ten years later Defendant filed a petition for writ of audita querela. (ECF No. 120.) In his petition, Defendant denied that his prior drug convictions were serious drug felonies. This Court held that two prior drug convictions adequately supported Defendant's enhanced sentence under 21 U.S.C. § 841(b)(1)(A):

Defendant's prior conviction relating to the distribution of 1.65 grams of marijuana was for “Criminal Sale of Dangerous Drugs (felony).” Presentence Report (PSR) at 9, § 46. The PSR states that “[t]he defendant sold 1.65 grams of marijuana to a confidential informant for $30.” PSR, § 46. Thus, Defendant's assertion that this prior conviction was for anything other than a serious drug felony is incorrect.

(ECF No. 121 at 4.) Defendant's other felony drug conviction was for “Criminal Possession of Dangerous Drugs [methamphetamine and marijuana] (Felony).” (PSR ¶ 50; ECF No. 67, Information Pursuant to 21 U.S.C. 851.)

         Thus, there is no question that Defendant's life sentence was imposed pursuant to a properly filed Section 851 Information and based upon two prior felony drug ...

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