United States District Court, D. Montana, Billings Division
P. WATTERS UNITED STATES DISTRICT COURT JUDGE.
case comes before the Court on Defendant/Movant
Anderson's motion to vacate, set aside, or correct the
sentence under 28 U.S.C. § 2255. Anderson is a federal
prisoner proceeding with counsel.
claims have been resolved, but one remains. Anderson claims
his trial counsel rendered ineffective assistance by advising
him that he was facing a mandatory sentence of life in
prison. See Anderson Br. (Doc. 450) at 2; see
also Am. § 2255 Mot. (Doc. 472) at 4; Br. in Supp.
(Doc. 473) at 1-2, 2-10.
following facts are taken from the record of the case, from
Anderson's testimony at an evidentiary hearing on August
28, 2014 ("Anderson Tr." (Doc. 443)), and from the
depositions of trial counsel Brad Arndorfer ("Arndorfer
Dep." (Doc. 433-1)) and Assistant United States Attorney
Jim Seykora ("Seykora Dep." (Doc. 442-1)). It
should be noted that all three of these witnesses testified,
and the parties submitted their briefs, before the United
States' numerous Giglio violations at trial were
Pre-Trial Proceedings and Trial Verdict
February 23, 2007, Anderson and his cousin, Nathaniel Davis,
were indicted on one charge of conspiring to possess
methamphetamine with intent to distribute it and one charge
of possessing methamphetamine with intent to distribute it,
violations of 21 U.S.C. §§ 846 and 841(a)(1)
(Counts 1 and 2); the same two charges with respect to
cocaine (Counts 3 and 4); the same two charges with respect
to ecstasy (Counts 5 and 6); and the same two charges with
respect to marijuana (Counts 7 and 8). They were also charged
with possessing or using or carrying a firearm in furtherance
of drug trafficking. The time frame of each charge spanned
about three years. .See Indictment (Doc. 1) at 2-6. Based on
the drug quantities alleged, conviction on Counts 1 or 2,
involving methamphetamine, would subject Anderson to a
ten-year mandatory minimum and a maximum sentence of life in
prison. If convicted on Count 9, a gun charge, he was subject
to a mandatory minimum sentence of five years in prison,
consecutive to any sentence imposed on Counts 1 through
See 21 U.S.C. § 841(b)(1)(A)(viii); 18 U.S.C.
§ 924(c)(1)(A)(i), (D)(ii).
January 17, 2008, the grand jury handed down a superseding
indictment naming three new co-defendants and adding 21 drug
counts to the original charges against Anderson. All the new
charges fell within the same time span as the original
indictment and arose from controlled buys or drugs found in
searches of Anderson's or a co-conspirator's home.
Two of the new charges, Counts 14 and 16, carried the same
statutory penalty range as Counts 1 and 2. Superseding
Indictment (Doc. 71) at 1 (caption), 3 (Counts 1 and 2), 7
(Count 14 actual), 8 (Count 16 actual).
was arraigned on the new charges on January 24, 2008.
See Minutes (Doc. 72). Trial was set for April 7.
See Order (Doc. 96).
March 21, 2008, the United States filed an information under
21 U.S.C. §851. It alleged that Anderson had one prior
conviction for a felony drug offense. See
Information (Doc. 119). Filing of the information doubled the
mandatory minimum on Counts 1, 2, 14, and 16 from ten to
twenty years. See 21 U.S.C. §§
841(b)(1)(A), 851(a)(1). Considering those four counts along
with the gun count, Count 30, the effective mandatory minimum
penalty was 25 years.
United States' motion, trial was continued from April 7
to June 2, 2008. See Order (Doc. 146).
April 1, 2008, Anderson's counsel Brad Arndorfer
responded to the § 851 Information. He attached a
document describing the "disposition" of the charge
cited in the Information as "dismissed."
See Resp. to Information & Ex. (Docs. 150,
matters stood until Wednesday, May 28, 2008. With trial set
to begin the following Monday, Arndorfer moved for leave to
enter a conditional guilty plea to Count 1, the
methamphetamine conspiracy count, while preserving his right
to appeal the denial of his suppression motion. See
Mot. to Set Conditional Plea (Doc. 200); Fed. R. Crim. P.
11(a)(2); Order (Doc. 70); Arndorfer Dep. (Doc. 433-1) at
33:1-11. Pursuant to a local rule, see D. Mont. L.R.
CR 12.2 (Jan. 7, 2008), Arndorfer noted the United States
would object to his motion. Although he asserted it should
not be permitted to object, he acknowledged circuit precedent
against him. See Mot. to Set Conditional Plea at 1-2
(citing United States v. Kuchinski, 469 F.3d 853,
858 (9th Cir. 2006)). Nonetheless, Arndorfer explained:
We make this motion because we want the record to be
abundantly clear that Mr. Anderson accepts responsibility for
his actions in distributing dangerous drugs. The issue that
is involved with the case is that the amounts, times, and
quantities are greatly exaggerated in the discovery, an issue
for sentencing as a jury is not able to determine quantities.
[Anderson] admits that it is in excess of 500 grams....
Mot. to Set Conditional Plea (Doc. 200) at 2.
the same day, the United States rejected a conditional plea
"as the defendant will only admit to 500 grams of
methamphetamine." Resp. to Mot. (Doc. 205) at 2.
Instead, the United States asserted, it would prove at trial
"over 15 kilograms of methamphetamine alone," as
well as "pounds of cocaine and marijuana, and thousands
of ecsta[s]y pills." Id.
same time, the United States filed a second § 851
Information, alleging that Anderson had three prior
convictions for felony drug offenses, including the one
alleged in the first § 851 Information. The United
States listed the dates of two convictions and case numbers
of all three but did not attach judgments or other
documentation of the convictions. It noted that "[i]t is
difficult to obtain exact records from the State of
California in some instances." Second § 851
Information (Doc. 202) at 2 (citing United States v.
Norbury, 492 F.3d 1012 (9th Cir. 2007)).
of the second § 851 Information subjected Anderson to a
mandatory sentence of life in prison if (1) he was convicted
on Counts 1, 2, 14, or 16; (2) he was responsible for at
least 500 grams of a substance containing methamphetamine or
at least 50 grams of actual methamphetamine; and (3) at least
two of the three alleged prior convictions were "felony
drug offenses." See 21 U.S.C. §§
Friday, May 30, Arndorfer responded to the Second § 851
Information. He said:
It is defendants understanding that he has no felony
convictions of record. He had one felony conviction and that
conviction was dismissed.
Resp. (Doc. 212) at 1.
commenced the following Monday, June 2, 2008. See
Minutes (Docs. 225, 226). At the final pretrial conference,
Arndorfer said he "just got a fax in this morning
showing that all of [Anderson's] priors ... have been
dismissed." Final Pretrial Conf. Tr. (Doc. 335) at
15:24-16:9. Arndorfer provided a copy to Seykora but did not
file anything with the Court. Both parties acknowledged that
the significance of the dismissals would "be argued at a
later time," not at trial. Id. at 16:6-14.
four days of testimony, the jury convicted Anderson on each
count. It also found Anderson responsible for the drug
quantities necessary to trigger a mandatory life sentence on
Counts 1, 2, 14, and 16, see Verdict (Doc. 243),
provided the United States could prove Anderson had at least
two prior felony drug convictions.
was set for September 24, 2008. See Order (Doc.
248). On September 2, 2008, Arndorfer moved to continue the
hearing. He said the presentence report had not been
completed, "evidence of prior convictions is
necessary," and "additional information is coming
on that issue." Mot. to Continue (Doc. 278) at 1-2.
Sentencing was re-set for October 24. See Order
October 20, Arndorfer filed another motion to continue. He
said, in part:
[I]t is clear we have not received the final presentence
investigation [report]. In the initial presentence
investigation, the presentence Author used only the drug
quantities in the indictment. We have no quarrel with them
and believe that is the proper quantities to use. However,
the prosecutor has objected then listed every quantity
anybody ever mentioned, whether credible or not. It is
impossible to write a sentencing memorandum or to hold a
hearing without knowing what the presentence report is going
Mot. for Additional Time (Doc. 299) at 1-2; see also
Fed. R. Crim. P. 32(e)-(f)- Sentencing was again re-set, this
time for November 19. See Order (Doc. 300).
sentencing, the parties agreed Anderson had one qualifying
prior conviction for a felony drug offense, establishing a
mandatory minimum sentence of 20 years. See
Presentence Report ¶ 113; see also Id.
¶¶ 108, 109, 111 (diversionary dispositions).
advisory guideline calculation was considerably higher. The
highest available base offense level on the drug quantity
table is 38, corresponding to at least 30, 000 kilograms of
Anderson was held responsible for "about 162, 000
kilograms" of marijuana. See Sentencing Tr.
(Doc. 343) at 80:13-81:4; U.S.S.G. § 2D1.1(a)(3),
(c)(1). He received a two-level enhancement for using a minor
to traffic in drugs and a four-level enhancement for his
leading role in the offense. U.S.S.G. §§ 3B 1.1(a),
statutory mandatory minimum penalty remained 20 years, but,
with a total offense level of 44 and a criminal history
category of III, his advisory guideline range was life.
See U.S.S.G. ch. 5 Part A cmt. n.2 ("An offense
level of more than 43 is to be treated as an offense level of
Cebull found that a guideline range of 360 months to life was
more appropriate than a range of life. See
Sentencing Tr. at 101:18-102:7. He sentenced Anderson to 420
months on the drug counts, plus the five-year consecutive
term on the gun count, for a total prison term of 480 months.
See Id. at 103:19-25; Judgment (Doc. 319) at 3.
Behind the Scenes
the outset of the case, Anderson was "eager" for a
plea bargain. See Arndorfer Dep. (Doc. 433-1) at
37:15-19; see also Id. at 7:16-18, 21:9-12; Anderson
Tr. (Doc. 443) at 9:7-10, 17:2-16. However, when Arndorfer
contacted Seykora to discuss possible sentences,
Seykora's response was, "You know, you can plead if
you want to. But the only deal you're going to get is
that he goes away for life." Arndorfer Dep. at 8:19-21.
According to Arndorfer, "[T]his case was a big to-do for
Jim [Seykora]. Jim thought he had his first life without
parole case, and he was going to get him 'cause he
didn't like Fritz Anderson." Id. at
in his deposition, was asked whether he "started day one
of the Fritz Anderson trial" with the understanding
"that this was a mandatory life case." He explained
he "felt mandatory life for two reasons":
Seykora: Number one is the prior conviction, if nothing else
the amount of dope we had. Particularly, I mean, if he gets
convicted, he's not going to accept his
responsibility.And without any minor enhancements or
anything else, it's going to be a level 44 or something,
which under the guidelines is life.
Stephens: Right, but that would be advisory, not mandatory?
Seykora: I guess we're just arguing at that point,
mandatory or life.
Stephens: Well, I mean, would you agree with me, I guess,
that there's a difference between a mandatory sentence
that the judge may-
Seykora: Sure, sure, the court's hands are ...