United States District Court, E.D. Virginia, Alexandria Division
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Joseph Emmanuel Mann, Petitioner (1:14cv16), Pro se.
T. S. Ellis, III, United States District Judge.
Petitioner Joseph Emmanuel Mann, a federal inmate convicted of conspiracy to distribute oxycodone, in violation of 21 U.S.C. § § 841(a)(1) and 846, has filed a motion to vacate, set aside or correct his sentence, pursuant to 28 U.S.C. § 2255, based on four claims of ineffective assistance of counsel. Specifically, petitioner contends that Counsel was ineffective because: (i) Counsel failed to move for an evaluation of petitioner's competence based on petitioner's past medical history and repeated drug use; (ii) Counsel failed to give petitioner proper advice regarding both a plea agreement offered by the government and the possibility that he could plead straight up to the indictment, and instead erroneously advised petitioner to proceed to trial; (iii) Counsel failed to argue for a downward departure in petitioner's Guidelines based on U.S.S.G. § § 5K2.13 or 5H1.3; and (iv) Counsel failed to object to the drug amount attributable to petitioner on the ground that some of the pills charged to the conspiracy were obtained and used by petitioner pursuant to valid prescriptions for back pain. As the parties have fully briefed the issues presented and neither oral argument nor an evidentiary hearing would aid the decisional process, petitioner's motion is ripe for disposition.
For the reasons that follow, petitioner's motion must be denied with respect to his first three claims, but granted with respect to his fourth claim, and accordingly, petitioner is entitled to a new sentencing hearing
where appropriate findings can be made regarding the drug amount attributable to petitioner.
A brief summary of the factual and procedural history of the case places petitioner's motion in context. Thus, the record reflects that from May 2007 to approximately June 2010, petitioner conspired with others to distribute oxycodone in the Eastern District of Virginia and elsewhere. Petitioner operated largely out of Washington, D.C. In his role in the conspiracy, petitioner obtained oxycodone prescriptions from a doctor, filled the prescriptions, and then sold many of those pills for profit at various locations. In his criminal proceedings through trial, petitioner was represented by court-appointed counsel (hereinafter " Counsel" ).
On July 28, 2011, a federal grand jury in the Eastern District of Virginia returned a one-count indictment charging petitioner with conspiracy to distribute oxycodone, in violation of 21 U.S.C. § § 841(a)(1) and 846. Subsequently, on August 5, 2011, petitioner appeared for an arraignment and pled not guilty to the indictment and requested a jury trial. Thereafter, in early August, the government offered petitioner a plea agreement that would result in a recommended low-end Guidelines sentence of 168 months. Petitioner rejected this plea offer. As time went on, the government became persuaded that the conspiracy had involved a greater volume of pills, so the government next offered petitioner a plea agreement that would result in a recommended low-end Guidelines sentence of 216 months. Petitioner declined this plea offer as well and continued to maintain his plea of not guilty. The case then went to trial and on October 14, 2011, the jury returned a verdict of guilty on the single count of conspiracy to distribute oxycodone.
Prior to sentencing, the Probation Officer conducted a detailed investigation and prepared a Presentence Investigation Report (PSIR). The Probation Officer calculated petitioner's offense level as 34, pursuant to U.S.S.G. § 2D1.1(c)(3). This calculation was based on the Probation Officer's estimate, based solely on patient prescription records obtained from CVS Pharmacies in Washington, D.C. and Virginia, that it was reasonably foreseeable to petitioner that the conspiracy was responsible for the distribution of 8,587 80 mg oxycodone pills and 1,986 40 mg oxycodone pills, which the Probation Officer correctly concluded was equivalent to between 3,000 to 10,000 kilograms of marijuana. This, combined with the Probation Officer's conclusion that petitioner fell into criminal history Category I, resulted in a recommended Guidelines sentencing range of 151 to 188 months.
During the course of petitioner's sentencing hearing, Counsel raised no objection to the drug amount calculation in the PSIR, nor did Counsel object to any other aspect of the PSIR's calculation of petitioner's offense level. Counsel did argue, however, for a two-level sentencing credit for acceptance of responsibility based on U.S.S.G. § 3E1.1. This argument failed. After hearing testimony from an FBI
agent to the effect that petitioner had asked other individuals to " help him out" by falsifying testimony at petitioner's trial, the Court ruled that petitioner's conduct indicated that he had " not accepted responsibility."  Moreover, the record reflected that petitioner maintained his plea of not guilty through the end of trial and never fully admitted his offense conduct. As a result, petitioner was not entitled to the two-level acceptance of responsibility credit pursuant to U.S.S.G. § 3E1.1. See U.S.S.G. § 3E1.1 cmt. n. 1(A) (2014) (" [A] defendant who falsely denies, or frivolously contests, relevant conduct that the court determines to be true has acted in a manner inconsistent with acceptance of responsibility . . . ." ). In the end, following petitioner's allocution and the arguments of Counsel and government counsel, petitioner was sentenced to 108 months of imprisonment--a downward variance from the advisory guidelines range--to be followed by five years of supervised release. As a special condition of his supervised release, petitioner was required to participate in and successfully complete a program of drug testing and rehabilitation.
Thereafter, petitioner, by counsel, timely appealed his conviction and his sentence, arguing that the evidence at trial was insufficient to sustain his conviction and that the sentence imposed on petitioner was unreasonable. The Fourth Circuit affirmed both petitioner's conviction and sentence. See United States v. Mann, 494 F.App'x 389 (4th Cir. 2012). In doing so, the Fourth Circuit panel noted that there was " no doubt that the evidence at trial was sufficient to support the jury's verdict," and that the " district court properly calculated [petitioner's] Guidelines range, and thoroughly explained its reasoning supporting [petitioner]'s below-Guidelines sentence." Id. at 390-91.
After the failure of petitioner's appeal, petitioner, pro se, filed this timely motion to vacate, set aside or correct his sentence, pursuant to 28 U.S.C. § 2255. Petitioner's motion is based entirely on Counsel's alleged constitutionally ineffective assistance. Specifically, petitioner makes the following four ineffective assistance of counsel claims:
(1) Counsel failed to move for an evaluation of petitioner's competence based on his past medical history and repeated drug use;
(2) Counsel failed to advise petitioner properly on the advantages of pleading guilty, both pursuant to a proffered plea agreement and straight up to the indictment, and erroneously advised him to proceed to trial;
(3) Counsel failed to investigate or present evidence to support a downward departure pursuant to U.S.S.G. § § 5K2.13 or 5H1.3; and
(4) Counsel failed to object to the PSIR's offense level on the ground that the drug amount attributable to petitioner erroneously did not subtract the oxycodone pills petitioner consumed for personal use pursuant to valid prescriptions.
It is well-established that petitioner's § 2255 claims of ...