United States District Court, Western District of Virginia, Harrisonburg Division
GLEN E. CONRAD CHIEF UNITED STATES DISTRICT JUDGE
Jose Luis Jaime Perez, a federal inmate proceeding pro se, filed this action as a motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. The government filed a motion to dismiss the action. Perez later supplemented his motion with an additional claim based on the Supreme Court’s decision in Alleyne v. United States, 133 S.Ct. 2151 (2013). The government moved to dismiss this additional claim, and Perez replied. For the reasons that follow, the government’s motion to dismiss will be granted and Perez’s motion to vacate will be denied.
On December 12, 2007, Perez and eighteen other individuals were named in a seventy-count indictment returned by a grand jury in the Western District of Virginia. Count One charged Perez with conspiring to manufacture, distribute, and possess with intent to distribute more than 5 kilograms of a mixture or substance containing cocaine hydrochloride, or more than 50 grams of a mixture or substance containing cocaine base, and more than 50 grams of pure methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. At trial, Perez admitted that he sold marijuana on one occasion but denied that he had ever been involved in the sale of cocaine. See generally Tr. of Direct and Cross-Examination of Def., Sept. 16, 2008, Docket No. 740-1. Despite the defendant’s testimony, the jury returned a verdict against Perez, finding the defendant “guilty beyond a reasonable doubt of knowingly conspiring to manufacture, distribute or possess with intent to distribute more than 5 kilograms of a mixture or substance containing cocaine powder.” Verdict Form, Sept. 16, 2008, Docket No. 450.
Prior to the sentencing hearing, a probation officer prepared a presentence investigation report. The probation officer determined that Perez was subject to a base offense level of thirty-six for his role in a conspiracy to possess with the intent to distribute at least 50 kilograms but less than 150 kilograms of cocaine. Additionally, the probation officer recommended a two-level enhancement for the defendant’s aggravating role as the primary supplier within the conspiracy, resulting in a total offense level of thirty-eight. The probation officer reviewed the defendant’s criminal history and assigned Perez four criminal history points, including two points for committing the instant offense while on probation, resulting in a criminal history category of III. Perez objected to the proposed base offense level on the basis that he should not be held responsible for any quantity of cocaine because his own trial testimony explained that he was only involved in marijuana transactions. The defendant also objected to the aggravating role enhancement. The government objected to the proposed offense level, asserting that the defendant should receive an additional two-level increase for obstruction of justice.
The court conducted Perez’s sentencing hearing on February 2, 2009. At the hearing, the court sustained the defendant’s objection regarding his aggravating role in the offense and reduced his proposed offense level by two. Additionally, the court ruled sua sponte that assigning two criminal history points for committing the instant offense while on probation was unfair and reduced the defendant’s criminal history category to II. The court, however, overruled the defendant’s objection with respect to the base offense level, finding that the jury “disbelieved Mr. Perez’s disavowal of any dealing in cocaine.” Sentencing Tr. 12, Docket No. 550. Relying on trial testimony provided by two credible government witnesses—Isidro Hernandez-Hernandez and Kelly Tharp—the court determined by a preponderance of the evidence that the defendant was involved with approximately 50 kilograms of cocaine, resulting in a base offense level of thirty-six. The court also sustained the government’s objection and increased the offense level by two for obstruction of justice, resulting in a total offense level of thirty-eight. When combined with a criminal history category of II, Perez’s total offense level gave rise to a range of imprisonment of 262 to 327 months under the 2007 Sentencing Guidelines. After considering the factors set forth in 18 U.S.C. § 3553(a), the court imposed a term of imprisonment of 262 months.
Perez appealed his sentence to the United States Court of Appeals for the Fourth Circuit. The Fourth Circuit remanded the case for resentencing on the basis that this court failed to make specific factual findings as to the elements of materiality and willfulness necessary to support the imposition of the obstruction of justice enhancement. Upon remand, the court made the necessary, specific factual findings and again imposed the obstruction of justice enhancement. However, the court also found that Perez’s need for rehabilitation had decreased, that he had admitted his wrongful conduct and the impropriety of his actions, and that a sentence of 262 months was no longer necessary to deter him from committing illegal acts. Mem. Op. 7–8, Feb. 10, 2012, Docket No. 683. The court varied downward by four offense levels and resentenced the defendant to a term of incarceration of 168 months. Id. at 8. Perez appealed his amended sentence, arguing that the district court exceeded the scope of the Fourth Circuit’s mandate when it again imposed the two-level enhancement for obstruction of justice. The appellate court disagreed and affirmed the amended sentence. Mem. Op., Aug. 24, 2012, Docket No. 700.
On May 20, 2013, Perez filed the instant motion for relief under 28 U.S.C. § 2255, asserting two claims of ineffective assistance of counsel. On September 9, 2013, the defendant supplemented his motion with a third claim for relief under Alleyne v. United States, 133 S.Ct. 2151 (2013), decided by the Supreme Court of the United States on June 17, 2013. The government has moved to dismiss the defendant’s § 2255 motion in its entirety, arguing that the three asserted claims are without merit. The defendant has replied to the government’s motion to dismiss. The matter is now ripe for review.
I. Ineffective Assistance of Counsel
Claims of ineffective assistance are reviewed under the standard enunciated by the Supreme Court of the United States in Strickland v. Washington, 466 U.S. 668 (1984). In order to succeed on such a claim, a defendant must show: (1) that his “counsel’s performance was deficient, ” and (2) that “the deficient performance prejudiced the defense.” Id. at 687. With respect to the first prong, “the defendant must show that counsel’s representation fell below an objective standard of reasonableness.” Id. at 688. With respect to the second prong, the defendant must show 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. A court need not address both components of an ineffective assistance claim “if the defendant makes an insufficient showing on one.” Id. at 697. “If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.” Id.
In his § 2255 motion, Perez alleges ineffective assistance of counsel on the following grounds: (1) failure to object to the probation officer’s recommended two-point criminal history score increase under U.S.S.G. § 4A1.1(d) for being on probation at the time of the instant offense; and (2) failure to raise the defense of sentencing entrapment or sentencing manipulation. Upon review of the record, the court concludes that these claims are without merit.
A. Criminal History Category: U.S.S.G. § 4A1.1(d)
Assuming, without deciding, that his counsel’s performance was deficient, Perez’s first claim must fail for lack of prejudice. Although defense counsel did not object to the probation officer’s assignment of two criminal history points for committing the instant offense while on probation pursuant to U.S.S.G. § 4A1.1(d), the court, on its own motion, modified the defendant’s presentence report to remove those two points. Sentencing Tr. 14, Docket No. 550 (Judge Conrad: “I think the assignment of the two criminal history points with the commission of an offense while on probation is unfair and I’m going to modify the report to delete those two criminal history points.”). A successful objection by defense counsel would not have changed the sentence ultimately ...