United States District Court, E.D. Virginia, Richmond Division
(DENYING 28 U.S.C. § 2255 MOTION)
HENRY E. HUDSON, District Judge.
Zarqurous Lequis Sanders ("Sanders"), a federal inmate proceeding pro se , submitted this motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence ("Mem. Support. § 2255 Motion, " ECF No. 74). Sanders argues that he is entitled to relief based on the following claims:
Claim One: The Court erroneously upwardly departed in sentencing Sanders to thirty-two months over the recommended guideline range without a sufficient factual basis. (Mem. Supp. § 2255 Mot. 5, ECF No. 74.)
Claim Two: The Court improperly relied upon United States Sentencing Guidelines ("U.S.S.G.") § 3D1.4, which addresses enhanced penalties for multiple criminal offenses, in granting the upward departure. (Mem. Supp. § 2255 Mot. at 6.)
Claim Three: Counsel rendered ineffective assistance by:
(a) not providing Sanders with the "discovery package" limiting Sanders's knowledge of the evidence against him (Id); and
(b) failing to argue Sanders's appeal to the best of his ability, which encouraged Sanders to "give up" on his appeal. Id.
The Government argues that Claims One and Two are procedurally barred, and that all three claims fail on the merits. The matter is ripe for judgment.
I. PROCEDURAL HISTORY
On July 22, 2008, Sanders and two co-defendants were indicted for one count of Conspiracy to Obstruct, Delay, and Affect Commerce by Robbery, in violation of 18 U.S.C. § 1951(a) (Count One), and two counts of Bank Robbery, in violation of 18 U.S.C. § 2113(a) (Counts Two and Three). On August 3, 2009, Sanders pled guilty to Counts One and Three of the Indictment. (Minute Entry 51, ECF No. 53.) Sanders signed a Statement of Facts agreeing that, if the case were to proceed to trial, the Government would prove beyond a reasonable doubt that, inter alia , "he and his co conspirators acted with force, violence, and intimidation, in taking and attempting to take, [United States currency] from bank teller employees" at eight separate banks throughout Alabama, North Carolina, Ohio, Tennessee, and Virginia. (Statement of Facts ¶¶ 2-4, ECF No. 52.) In total, Sanders admitted that he and his co-conspirators stole approximately $151, 342.00. Id. at A.
The United States Probation Officer, in the Presentence Report ("PSR"), calculated Sanders's total offense level as 25 and his criminal history category as IV, yielding a sentencing range of 84 to 105 months of incarceration. (PSR Worksheet D, 1.) The Government filed a Motion for Upward Departure or Variance, asking the Court to increase Sanders's criminal history category by two levels: (1) a one-level increase to account for uncounted robberies pursuant to U.S.S.G. § 3D1.4; and (2) a one-level increase pursuant to U.S.S.G. § 4A1.3(a) because Sanders committed previous felonies that were not represented in his criminal history. (Mem. Supp. Gov't Position 3-6, ECF No. 54.) The Government argued that Sanders's criminal history category substantially underrepresented the seriousness of his criminal history and the likelihood that he would commit other crimes. Id. The Court granted the Government's motion, and increased Sanders's criminal history category from IV to VI. (Sentencing Minutes 1, ECF No. 55.) Under the Sentencing Guidelines, a criminal history category of VI with a total offense level of 25, yielded a sentencing range of 110 to 137 months. (U.S.S.G. Sentencing Table (2009)). The Court sentenced Sanders to 137 months of imprisonment on each count, to be served concurrently, followed by a three-year term of supervised release. (J. 2, ECF No. 57.)
The United States Court of Appeals for the Fourth Circuit affirmed, finding the imposed sentence "both procedurally and substantively reasonable." U.S. v. Sanders , 410 F.Appx. 641, 644 (4th Cir. 2011).
II. SENTENCING CLAIMS
The Fourth Circuit rejected Sanders's Claims One and Two on direct review. Sanders , 410 F.App'x at 643-44. Sanders fails to direct the Court to an intervening change in the law that would permit Sanders to re-litigate these claims. See U.S. v. Linder , 552 F.3d 391, 396-97 (4th Cir. 2009); see also Boeckenhaupt v. U.S. , 537 F.2d 1182, 1183 (4th Cir. 1976). Thus, the Fourth Circuit's ruling bars collateral review of Claims One and Two. Linder , 552 F.3d at 396-97. Sanders" may not circumvent a proper ruling on [his direct appeal ...