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United States v. Anderson

United States District Court, D. Montana, Billings Division

February 14, 2019

UNITED STATES OF AMERICA, Plaintiff/Respondent,
FRITZ ANDERSON, Defendant/Movant.



         This 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.

         Other 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.

         I. Relevant Facts

         The 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 discovered.

         A. Pre-Trial Proceedings and Trial Verdict

         On 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 8.[1] See 21 U.S.C. § 841(b)(1)(A)(viii); 18 U.S.C. § 924(c)(1)(A)(i), (D)(ii).

         On 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).

         Anderson was arraigned on the new charges on January 24, 2008. See Minutes (Doc. 72). Trial was set for April 7. See Order (Doc. 96).

         On 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.

         On the United States' motion, trial was continued from April 7 to June 2, 2008. See Order (Doc. 146).

         On 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, 150-1).

         These 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.

         Later 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.

         At the 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)).[2]

         Filing 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. §§ 841(b)(1)(A), 851(a)(1).

         On 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.

         Trial 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.

         After 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.

         B. Sentencing

         Sentencing 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 (Doc. 281).

         On 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 to suggest.

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).

         At 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).

         The 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 marijuana.[3] 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), 3B1.4.

         Anderson's 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 43.").

         Judge 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.

         C. Behind the Scenes

         1. Plea Bargaining

         From 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 39:20-23.

         Seykora, 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.[4]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: Right.
Stephens: Okay.
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 ...

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