United States District Court, W.D. Virginia, Roanoke Division
Hon. Glen E. Conrad Chief United States District Judge
Allen Roy Osborne, a federal inmate proceeding pro se, has moved to vacate, set aside, or correct his sentence, under 28 U.S.C. § 2255. The government has filed a motion to dismiss, and Osborne has responded, making this matter ripe for consideration. Upon review of the record, the court concludes that the government's motion to dismiss must be granted and Osborne's § 2255 motion dismissed.
On June 20, 2013, a grand jury of this court charged Osborne in a one-count indictment with conspiracy to possess with intent to distribute. more than 500 grams of a substance containing methamphetamine, in violation of 21 U.S.C. §§ 846, 841(b)(1)(A). This crime carries a mandatory minimum sentence of 120, months to life in prison. 21 U.S.C. § 841(b)(1)(A). Osborne obtained counsel and negotiated a written plea agreement pursuant to Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure, in which he agreed to plead guilty to the indictment for an agreed-upon sentence of 120 months' imprisonment.
At the guilty plea hearing, Osborne affirmed that he had had an adequate opportunity to read and discuss the plea agreement with counsel, that he understood the plea agreement, and that no one had forced him or made any promises to cause him to plead guilty. (Plea Hr'g Tr. at 9-10, ECF No. 114.) Osborne further affirmed that he was "fully satisfied with the counsel, representation, [and] advice given to [him] in this case by [his] attorneys." (Id. at 9.) Osborne affirmed that he understood the elements of the offense for which he was charged, and the evidence the government would have to show in order for a jury to find him guilty. (Id. at 12.) Osborne stated that he understood that the maximum possible penalty for distribution of more than 500 grams of a substance containing methamphetamine was ten years to life in prison. (Id.) The court further explained that because the plea agreement was negotiated pursuant to Rule 11(c)(1)(C), acceptance of the plea would require a sentence often years in prison as agreed upon by both parties. (Id. at 13.) Osborne affirmed that he understood that he would be sentenced to ten years. (Id.) Osborne also stated that he understood that he was waiving his right to collaterally attack his plea and sentence, other than that allowed by law and claims of ineffective assistance of counsel. (Id. at 18.)
A former officer with the Franklin County Sheriffs Office provided a summary of the evidence against Osborne. He estimated that during the course of the conspiracy, more than 14 kilograms of methamphetamine had been bought and sold. (Id. at 22.) He also noted that Osborne had a safe located in his bedroom at his home, where he stored money, drugs, and weapons. (Id. at 24.) He testified that Osborne had a home security system that allowed him to see who was outside his home when he was in his bedroom. (Id. at 23.) He also testified that he helped conduct a search warrant on Osborne's house and found packages of cash in the safe. (Id. at 25.) Over twenty firearms were also confiscated from Osborne's home. (PSR at ¶ 20, ECF No. 99.)
Osborne stated that he did not disagree with the summary of evidence presented against him. (Id. at 26.) The court asked, "[H]ow do you plead to Count One of the indictment against you, guilty or not guilty?" (Id. at 28.) Osborne responded, "Guilty." (Id.)
The court then found that Osborne was "fully competent and capable of entering an informed plea" and that his plea of guilty was knowing and voluntary and supported by an independent basis in fact. (Id. at 29.) Nonetheless, the court held acceptance of the plea under advisement until the sentencing hearing. (Id. at 48.)
At the sentencing hearing on April 15, 2014, the court accepted Osborne's guilty plea. (Sent. Tr. at 5, ECF No. 113.) The defense stated that he had no objections to the presentence investigation report ("PSR"). The PSR proposed a total offense level of 39, a criminal history category of I, and a guideline range of 262 to 327 months' incarceration. (Id. at 2.) The PSR provided for a two-level enhancement to Osborne's base offense level for possession of a firearm during the offense and another two-level enhancement for being an organizer or leader of the conspiracy. (PSR ¶ 27, 29, ECF No. 99.) The court sentenced Osborne to 120 months' imprisonment in accordance with the terms of the plea agreement. (Id. at 2, 6.) Osborne did not appeal.
In his § 2255 motion, Osborne argues that counsel provided ineffective assistance by failing (1) to inform him and the court that he was eligible for a lesser sentence under the safety valve provision of U.S.S.G. § 5C1.2(5) and consequently to object to the government's characterization of him as a leader in the conspiracy and to the weapons enhancement; and (2) to object to the weight of the drugs involved in the conspiracy.
To state a viable claim for relief under § 2255, a defendant must prove: (1) that his sentence was "imposed in violation of the Constitution or laws of the United States;" (2) that "the court was without jurisdiction to impose such a sentence;" or (3) that "the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." 28 U.S.C. § 2255(a). Osborne bears the burden of proving grounds for a collateral attack by a preponderance of the evidence. Jacobs v. United States, 350 F.2d 571, 574 (4th Cir. 1965).
The proper vehicle for a defendant to raise an ineffective assistance of counsel claim is often by filing a § 2255 motion. United States v. Baptiste. 596 F.3d 214, 216 n.l (4th Cir. 2010). However, in order to establish a viable claim of ineffective assistance of counsel, a defendant must satisfy a two-prong analysis showing both that counsel's performance fell below an objective standard of reasonableness and that the defendant was prejudiced by counsel's alleged deficient performance. Strickland v. Washington, 466 U.S. 668, 687 (1984). When considering the reasonableness prong of Strickland, courts apply a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689; Gray v. Branker. 529 F.3d 220, 228-29 (4th Cir. 2008). Counsel's performance is judged "on the facts of the particular case, " and assessed "from counsel's perspective at the time." Strickland, 466 U.S. at 689, 690.
To satisfy the prejudice prong of Stickland, a defendant must show that there is a reasonable probability that, but for counsel's unprofessional error, the outcome of the proceeding would have been different. Id. at 694. Prejudice exists when counsel's error results in a sentence longer than that which the court would otherwise impose. See Glover v. United ...