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United States v. Smith

United States District Court, D. Montana, Billings Division

September 27, 2018

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
DUANE TIMOTHY SMITH, Defendant/Movant.

          ORDER DENYING § 2255 MOTION AND DENYING CERTIFICATE OF APPEALABILITY

          SUSAN P. WALTERS UNITED STATES DISTRICT JUDGE.

         This case comes before the Court on Defendant/Movant Duane Timothy Smith's motion to vacate, set aside, or correct his sentence, pursuant to 28 U.S.C. § 2255. Smith is a federal prisoner proceeding pro se.

         In reviewing the motion, the Court has refreshed its memory by consulting the rough transcripts of the change of plea and sentencing hearings. Pursuant to 28 U.S.C. § 753(f), the United States will be required to order transcripts of those hearings for the Court's file and for Smith.

         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 the Court should "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

         Smith was indicted on one count of conspiring to distribute and possess with intent to distribute 500 grams or more of a substance containing methamphetamine, a violation of 21 U.S.C. §§ 846 and 841(a)(1) (Count 1); one count of possessing the same with intent to distribute it, a violation of 21 U.S.C. § 841(a)(1) (Count 2); one count of possessing or brandishing four firearms in furtherance of the alleged drug trafficking conspiracy, a violation of 18 U.S.C. § 924(c)(1)(A)(i) and (ii) (Count 4); and one count of possessing an unregistered firearm, a violation of 26 U.S.C. § 5861(d) (Count 6). See Indictment (Doc. 1) at 2-3, 4, 5; Superseding Indictment (Doc. 25) at 2-3, 4, 5. A co-defendant, Thomas Dean Smith, was charged with possessing or brandishing two firearms in furtherance of the alleged drug trafficking conspiracy (Count 5). Smith was not named in Count 5 but was charged on a Pinkerton theory.[1] See Indictment at 5; Superseding Indictment at 6. Attorney Jay Lansing was appointed to represent Smith. See Order (Doc. 17).

         If convicted on the drug counts alleged in the indictment and superseding indictment, Smith faced a ten-year mandatory minimum sentence and a maximum sentence of life in prison. See2\ U.S.C. § 84l(b)(1)(A)(viii). If convicted on either Count 4 or Count 5, Smith faced a mandatory minimum term of five to seven years consecutive to any sentence imposed on Counts 1, 2, or 6. See 18 U.S.C. § 924(c)(1)(A)(i), (ii), (D)(ii). And if convicted of both Counts 4 and 5, Smith faced a mandatory minimum prison term of 30 years, consecutive to any sentence imposed on the other counts, including a ten-year mandatory minimum if convicted on Counts 1 or 2. See id § 924(c)(1)(C)(i), (D)(ii).

         On November 9, 2016, the parties filed a fully executed plea agreement. Smith agreed to plead guilty to a superseding information, and the United States agreed to dismiss all charges in the superseding indictment. See Plea Agreement (Doc. 39) at 2 ¶ 2. The superseding information charged Smith with conspiring to distribute and possess with intent to distribute 50 grams or more of a substance containing methamphetamine, a violation of 21 U.S.C. §§ 846 and 841(a)(1) (Count 1), and one count of possessing four firearms in furtherance of the alleged drug trafficking conspiracy, a violation of 18 U.S.C. § 924(c)(1)(A)(i) (Count 2). See Superseding Information (Doc. 40) at 1-3.

         The new, lesser charges subjected Smith to a five-year mandatory minimum prison term and a forty-year maximum sentence on Count 1 and a five-year mandatory minimum prison term on Count 2, consecutive to any sentence imposed on Count 1. See 21 U.S.C. § 84l(b)(1)(B)(viii); 18 U.S.C. § 924(c)(1)(A)(i), (D)(ii). Under the superseding indictment, Smith faced a mandatory minimum as high as 40 years. Under the superseding information, his mandatory minimum sentence was limited to 15 years.

         In the plea agreement, the parties also agreed "the defendant's base offense level should be at least 34, pursuant to U.S.S.G. §§ IB 1.3(a)(1)(A) and (V) and 2D 1.1 (c)(3)." Plea Agreement at 7 ¶ 6. The United States conditionally agreed to recommend a three-level reduction in the offense level for acceptance of responsibility. See Id. Smith waived "any right to appeal and right to bring any other post-conviction attack on the sentence," except claims alleging ineffective assistance of counsel. See Id. at 8 ¶ 8.

         Smith pled guilty in open court on November 30, 2016. The transcript of the change of plea hearing reflects that Smith admitted agents seized about 338 grams of methamphetamine from his residence on September 29, 2015. See, e.g., Offer of Proof (Doc. 41) at 3. The transcript also reflects that he admitted distributing methamphetamine from the house before and after September 29, 2015. See, e.g., Id. at 5-6.

         The probation office drafted a presentence report. The draft report set the base offense level at 38, applied a four-level enhancement for use of body armor, a two-level enhancement because Smith played a leading role in the offense, and a three-level reduction for acceptance of responsibility. The total adjusted offense level was 41. Smith's criminal history category was IV based on his criminal history points, but it was increased to VI because Smith's two prior convictions for partner or family member assault made a him a career criminal. Smith's anticipated guideline range was 360 months to life in prison, plus a consecutive five-year term on Count 2. See Presentence Report ¶¶ 26-36, 47-49, 92-93.

         Smith's counsel objected to the drug quantity and argued the base offense level should be 34, see Presentence Report Addendum, the lowest level consistent with the plea agreement. The draft report's assessment of a level 38 excluded the amount of the seized methamphetamine and Smith's own statements, relying solely on the high purity of the seized methamphetamine and statements provided by a confidential ...


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