United States District Court, E.D. Virginia, Richmond Division
HENRY E. HUDSON, District Judge.
(Denying 28 U.S.C. § 2255 Motion)
Ryan Jones, a federal inmate proceeding pro se, filed this motion under 28 U.S.C. § 2255 ("§ 2255 Motion, " ECF No. 27) to vacate, set aside, or correct his sentence. In his § 2255 Motion, Jones demands reliefupon the following grounds:
Claim One The Government breached the Plea Agreement by using uncharged crimes to increase Jones's base offense level. (§ 2255 Mot. 5.)
Claim Two Counsel provided ineffective assistance by misadvising Jones as to the minimum sentence he could receive for Count One. ( Id. )
Claim Three Counsel provided ineffective assistance by failing to object to the Government's breach of the Plea Agreement. ( Id. )
The United States has responded. (ECF No. 31.) The matter is ripe for judgment.
I. Procedural History
On September 19, 2011, a Grand Jury charged Jones with one count of attempt to commit robbery affecting commerce (Count One) and using and carrying a firearm during and in relation to a crime of violence (Count Two). (Indictment 1-2.) Jones signed a Plea Agreement with the Government, which stipulated that the Government would recommend a sentence of 120 months of imprisonment for each count, to run consecutively. (Plea Agreement ¶ 5.) The Government also promised Jones immunity from further prosecution in the Eastern District of Virginia for the conduct described in the Indictment and Statement of Facts, the latter of which described six additional robberies, and one attempted robbery, during each of which he brandished a firearm. ( Id. at ¶ 10; Statement of Facts ¶ 9.) The Plea Agreement stated that "no truthful information that the defendant provides under this agreement will be used in determining the applicable guideline range.... Nothing in this plea, however, restricts the Court's or Probation Officer's access to information and records in the possession of the United States." (Plea Agreement ¶ 11.)
Jones pled guilty, and on March 9, 2012, this Court convicted Jones of both counts, and, following the Government's recommendation, sentenced Jones to 240 months of imprisonment. (J. 1-2.)
II. Claims One and Three: Alleged Breach of Plea Agreement
Jones alleges that the Government, by allowing the Probation Officer to incorporate uncharged conduct into the Sentencing Guidelines ("Guidelines") calculations, breached the Plea Agreement. Under the Guidelines, a plea agreement accompanied by a stipulation that specifically establishes the commission of additional offenses is treated as if the defendant had been convicted of additional counts charging those offenses. U.S. Sentencing Guidelines Manual § IB1.2(c) (2011). In other words, as pertinent here, "if the defendant is convicted of one count of robbery but, as part of a plea agreement, admits to having committed [seven] additional robberies, the [G]uidelines are to be applied as if the defendant had been convicted of [eight] counts of robbery." Id. § 1B1.2cmt.n.3.
When calculating Jones's offense level, the Probation Officer included the uncharged robberies, including Jones's brandishing a firearm during each robbery, stipulated in the Statement of Facts. (Statement of Facts ¶ 9.) Jones's additional robberies and brandishing charges amounted to eight units, which resulted in a five-level increase in the offense level for Count One. (Presentence Investigation Report ("PSR") Worksheet, ECF No. 18, at 42.) Jones stipulated that he committed the additional robberies and brandishing offenses in the Statement of Facts, and affirmatively told the Court that the description of his conduct was accurate. (Dec. 2, 2011 Tr. 23.) Accordingly, the Probation Officer correctly included this information in the Guidelines calculation. Because Jones fails to demonstrate that the Government violated the terms of the Plea Agreement, Claim One will be dismissed.
In Claim Three, Jones alleges that his counsel provided ineffective assistance by failing to challenge the Government's purported breach of the Plea Agreement described in Claim One. To demonstrate ineffective assistance of counsel, a convicted defendant must show first, that counsel's representation was deficient and second, that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). Jones has failed to demonstrate that the Government, in fact, breached the Plea Agreement. It follows ...