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United States v. Winbush

United States District Court, E.D. Virginia, Richmond Division

September 20, 2016

UNITED STATES OF AMERICA
v.
CALVIN WINBUSH, Petitioner.

          MEMORANDUM OPINION (DENYING 28 U.S.C. § 2255 MOTION)

          HENRY E. HUDSON, UNITED STATES DISTRICT JUDGE

         Calvin Winbush, a federal inmate proceeding pro se, submitted this motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence ("§ 2255 Motion, " ECF No. 75).[1] Winbush contends that he experienced ineffective assistance of counsel[2] and other deprivations in conjunction with his sentencing and appeal. Specifically, Winbush demands relief because:

Claim One: "[Ineffective trial counsel's failure to adequately argue a Sixth Amendment violation pursuant to Alleyne [v. United States, 133 S.Ct. 2151 (2013)]." (Gov't Resp. 2, ECF No. 79 (citation omitted).)[3]
Claim Two: "[Ineffective trial counsel's failure to adequately argue the unconstitutional application of the United States Sentencing Guidelines Manual in this particular case." (Id.)
Claim Three: "[A]fter Alleyne discretionary sentencing as prescribed by 18 U.S.C. § 3553(a) violates the Sixth Amendment." (Id.)
Claim Four: "United States v. Booker[, 543 U.S. 220 (2005)] was wrongly decided where Booker allows discretionary sentencing prescribed by 18 U.S.C. § 3553(a)." (Id.)
Claim Five: "[Ineffective appellate counsel's failure to adequately argue the erroneous application of the United States Sentencing Guidelines." (Id.)
Claim Six: "[Ineffective appellate counsel's failure to adequately argue that Winbush's sentence was unconstitutional due to the district court's elevation of the base offense level not supported by a jury's unanimous finding." (Id.)

         The Government responded, asserting that Claims Three and Four are procedurally defaulted, and that Winbush's ineffective assistance claims lack merit. (ECF No. 79.)

         Winbush has filed a Reply. (ECF No. 82.) Winbush also has filed a Motion for Final Disposition (ECF No. 83), which the Court will deny as moot. For the reasons set forth below, Winbush's § 2255 Motion (ECF No. 75) will be denied.

         I. PROCEDURAL HISTORY

         On February 8, 2012, a Criminal Complaint was filed, charging Winbush with one count of aiding and abetting the interstate transportation of a minor for purposes of prostitution, in violation of 18 U.S.C. §§ 2423(a) & 2. (Crim. Compl. 1, ECF No. 3.) On February 21, 2012, a grand jury charged Winbush with conspiracy to transport a minor across state lines for prostitution, in violation of 18 U.S.C. § 2423(e) (Count One), and aiding and abetting the interstate transportation of a minor for purposes of prostitution, in violation of 18 U.S.C. §§ 2423(a) & 2 (Count Two). (Indictment 1-5, ECF No. 11.) On April 12, 2012, Winbush pled guilty without a written plea agreement to Counts One and Two. (Apr. 12, 2012 Tr. 2.)

         On August 14, 2012, the Court entered judgment against Winbush and sentenced him to 168 months of imprisonment on each count, to be served concurrently. (J. 2, ECF No. 62.) Winbush appealed. (ECF No. 64.) On appeal, counsel for Winbush "contend[ed] that the district court (1) erred in applying an enhancement for use of a computer, and (2) failed to explain adequately its reasons for varying upward from criminal history category II to category III." United States v. Winbush, 524 F.App'x 914, 915 (4th Cir. 2013) (internal citation omitted). The United States Court of Appeals for the Fourth Circuit affirmed Winbush's convictions and sentence. Id. at 917. The United States Supreme Court subsequently denied Winbush's petition for a writ of certiorari. Winbush v. United States, 134 S.Ct. 662 (2013).

         II. PROCEDURALLY DEFAULTED CLAIMS

         In Claim Three, Winbush asserts that "after Alleyne[ v. United States,133 S.Ct. 2151 (2013)] discretionary sentencing as prescribed by 18 U.S.C. § 3553(a) violates the Sixth Amendment." (Gov't Resp. 2 (citations omitted).) In Claim Four, Winbush contends that "United States v. Booker[, 545 U.S. 220 (2005)] was wrongly decided where Booker allows ...


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