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United States v. Bettin

United States District Court, D. Montana, Billings Division

August 9, 2019

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
ROCKY ROLLIN BETTIN, Defendant/Movant.

          ORDER DENYING § 2255 MOTION AND DENYING CERTIFICATE OF APPEAL ABILITY

          Susan P. Watters United States District Court Judge

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

         The transcripts of Bettin's change of plea hearing, held on September 21, 2017, and sentencing hearing, held on February 14, 2018, are needed to decide the issues presented in the motion. The United States will be directed to order the transcripts for the record and copies for Bettin.

         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

         On June 28, 2017, a grand jury indicted Bettin on one count of conspiracy to distribute and possess with intent to distribute at least 500 grams of a substance containing methamphetamine between December 2016 and June 2017, a violation of 21 U.S.C. § 846 (Count 1); and one count of possessing 500 or more grams of a substance containing methamphetamine with intent to distribute it, a violation of 21 U.S.C. § 841(a)(1) (Count 2). Both counts were based on a highway patrol officer's traffic stop in Missoula, which resulted in seizure of 1, 502 grams of a crystalline substance that proved to be methamphetamine. See Indictment (Doc. 11) at 2-3. Assistant Federal Defender Gillian Gosch was appointed to represent Bettin. See Order (Doc. 7).

         The parties reached a plea agreement. On August 28, 2017, the United States filed a superseding information charging Bettin with a single count of conspiracy to distribute or possess with intent to distribute 50 or more grams of a substance containing methamphetamine between December 2016 and June 2017, a violation of 21 U.S.C. § 846. See Superseding Information (Doc. 25) at 1-2. Bettin agreed to plead guilty to the superseding information, and the United States conditionally agreed to recommend a three-level reduction in the offense level for acceptance of responsibility. The parties agreed to recommend a base offense level of 36 based on the amount of methamphetamine Bettin and others involved in the conspiracy distributed or possessed with intent to distribute. See Plea Agreement (Doc. 26) at 2 ¶ 2, 6-7 ¶ 6. On September 21, 2017, Bettin pled guilty in open court.

         A presentence report was prepared. The report noted that two other persons had been arrested in January and February 2017 and identified Bettin as their supplier. See Presentence Report ¶¶ 14-15. While Bettin disputed their estimates of the amount of methamphetamine he provided them, he did not dispute that he dealt with them. See, e.g., Offer of Proof (Doc. 24) at 3-4.

         At sentencing, consistent with the plea agreement, the base offense level was 36, corresponding to 1.5 to 4.5 kilograms of actual methamphetamine. With a three-level downward adjustment for acceptance of responsibility, the total offense level was 33. Bettin's criminal history category was V. See Presentence Report ¶¶ 27-37, 38-55. The advisory guideline range was 210 to 262 months. See U.S.S.G. ch. 5 Part A (Sentencing Table). Due principally to his serious lack of guidance as a youth and his addiction, Bettin was sentenced to serve 180 months in prison, to be followed by a five-year term of supervised release. See Statement of Reasons (Doc. 41) at 1 § III, 3 § VI(C), 4 § VIII; Am. Judgment (Doc. 42) at 2-3.

         Bettin did not appeal. His conviction became final on March 1, 2018. See Gonzalez v. Thaler, 565 U.S. 134, 150 (2012). He timely filed his § 2255 motion on or before December 28, 2018. See 28 U.S.C. § 2255(f)(1).

         III. Claim and Analysis

          Bettin contends trial counsel provided ineffective assistance during plea negotiations. This claim is governed by Strickland v. Washington, 466 U.S. 668 (1984). At this stage of the proceedings, Bettin must allege facts sufficient to support an inference (1) that counsel's performance fell outside the wide range of reasonable professional assistance, id. at 687-88, and (2) that there is a reasonable probability that, but for counsel's unprofessional performance, the result of the proceeding would have been different, id. at 694.

         Bettin alleges "there were multiple instances of contradiction when it came to the weight and the purity of the methamphetamine involved" in the case. Mot. § 2255 (Doc. 44) at 8. He also asserts his case was litigated at the time when a laboratory technician at the Montana State Crime Lab in Missoula was ...


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