United States District Court, D. Montana, Great Falls Division
ORDER DENYING REMAINING CLAIMS AND DENYING
CERTIFICATE OF APPEALABILITY
Morris United States District Court Judge.
case comes before the Court on Defendant/Movant Wright's
motion to vacate, set aside, or correct the sentence under 28
U.S.C. § 2255. The Court denied most of Wright's
claims on December 13, 2017 (Doc. 108). On January 18, 2018,
the United States answered two claims relating to
Wright's criminal history category. Wright replied on
February 12, 2018.
Remaining Claims Regarding Criminal History Category
alleges that her counsel provided ineffective assistance when
he failed to object to the calculation of her criminal
history category. Claims of ineffective assistance of counsel
are governed by Strickland v. Washington, 466 U.S.
668 (1984). At this stage of the proceedings, Wright must
allege facts sufficient to support an inference (1) that
counsel's performance fell below an objective standard of
reasonableness, id. at 687-88, and (2) that there is
“a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different, ” id. at 694.
claims that Presentence Report ¶ 41 and ¶¶ 46
and 49 should have resulted in a total of one point rather
than three. If she is correct, her criminal history category
is IV, and her advisory guideline range should have been 121
to 151 months instead of 140 to 175 months. “When a
defendant is sentenced under an incorrect Guidelines
range-whether or not the defendant's ultimate sentence
falls within the correct range-the error itself can, and most
often will, be sufficient to show a reasonable probability of
a different outcome absent the error.”
Molina-Martinez v. United States, ___ U.S. ___, 136
S.Ct. 1338, 1345 (2016).
Presentence Report ¶¶ 46 and 49
the points listed in the right margin of the presentence
report, Wright earned 11 criminal history points.
See Presentence Report ¶¶ 41 (1 point), 42
(2 points), 43 (2 points), 45 (1 point), 46 (1 point), 47 (2
points), 49 (1 point), 50 (1 point). She contends the
convictions listed in ¶¶ 46 and 49 represent the
same conviction. The United States concedes the point. Wright
earned ten criminal history points, rather than 11.
Presentence Report ¶ 41
alleges the convictions listed in Presentence Report ¶
41 were dismissed after she successfully completed a deferred
sentence. See Mem. (Doc. 107-1) at 8.
United States claims that Wright makes her claims
“without any evidence.” United States Resp. (Doc.
109) at 2. The United States further notes that Wright bears
the burden of proof in a § 2255 proceeding, see
id. at 5 n.2. Nothing requires Wright to submit evidence
with her motion. Wright simply must allege facts that are not
contradicted by the existing record of the case and that
would entitle her, if proved true, to relief. Appointment of
new counsel, an opportunity to conduct discovery, and
possibly an evidentiary hearing may be necessary when an
incarcerated and unrepresented prisoner meets that low
standard, unless other fair means of expanding the record and
deciding the claim are available. See, e.g.,
United States v. Rodriguez-Vega, 797 F.3d 781,
791-92 & n.11 (9th Cir. 2015); see also Rules
6(a), 8(c), § 2255 Rules.
Court believed “[t]he easiest course would be to decide
whether Wright can show prejudice sufficient to reduce her
criminal history category.” Order (Doc. 108) at 12. The
Court ordered the United States to investigate whether the
Presentence Report correctly counted the conviction and, if
so, to “file and serve on Wright competent evidence
supporting that conclusion.” Id. at 13;
see also Rule 7, § 2255 Rules. For instance, an
affidavit from the probation officer who collected and
reviewed the records and drafted the report could suffice and
might even show whether the question of a deferred sentence
came up before the report was finished. The United States
instead submitted exhibits, see Exs. 1-3 (Docs.
109-1, 109-2, 109-3), that have not been authenticated or
explained by someone who uses them frequently and understands
how they are created and what they mean.
further review, however, it seems clear, however, that Wright
is not entitled to relief. Assuming, as she says, that she
received a deferred sentence, the convictions were later
dismissed, and the outstanding bench warrant is invalid or
nonexistent or related to something else, Wright would still
receive one criminal history point.
Diversion from the judicial process without a finding of
guilt (e.g., deferred prosecution) is not counted. A
diversionary disposition resulting from a finding or
admission of guilt, or a plea of nolo contendere, in a
judicial proceeding is counted as a sentence under §
4A1.1(c) even if a conviction is not formally entered, except
that diversion from juvenile court is not counted.
U.S.S.G. § 4A1.2(f) (Nov. 1, 2013). The decision to
count convictions that result in deferred sentences
“reflects a policy that defendants who receive the
benefit of a rehabilitative sentence and continue to commit
crimes should not be ...