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United States v. Jones

United States District Court, W.D. Virginia

January 18, 2017

UNITED STATES OF AMERICA,
v.
OSHAY TERREL JONES, Defendant.

          MEMORANDUM OPINION

          Michael F. Urbanski United States District Judge

         Defendant Oshay Terrel Jones was found guilty following a six-day trial of conspiracy to distribute 28 grams or more of crack cocaine and was sentenced to 280 months in prison. He filed a motion to vacate, set aside, or correct his sentence, under 28 U.S.C. § 2255, raising multiple claims of ineffective assistance of counsel and court error. The government responded and Jones replied, making this matter ripe for adjudication. After review of the record and briefs, the court concludes that Jones has not raised any meritorious claims. Accordingly, the court will grant the United States' motion to dismiss Jones' § 2255 motion and dismiss Jones' § 2255 motion.

         I. BACKGROUND

         On September 26, 2013, a federal grand jury sitting in Roanoke, Virginia charged Jones and five codefendants in a one-count superseding indictment with conspiracy to distribute and possess with the intent to distribute 280 grams or more of a mixture or substance containing crack cocaine, in violation of 21 U.S.C. § 846. Jones was appointed counsel. There were some negotiations regarding a plea deal but an agreement was never reached.

         On January 21, 2014, Jones and four codefendants proceeded to trial.[1] The government argued that Jones, along with his brother, Dominique Jones, ran a cocaine trafficking conspiracy. The jury was tasked with determining whether Jones was guilty of conspiracy to distribute crack cocaine; and, if so, whether the conspiracy involved 280 grams or more of crack cocaine or, in the alternative, 28 grams or more of crack cocaine. The jury found Jones guilty of the lesser included offense of conspiracy to distribute 28 grams or more of crack cocaine. Verdict, ECF No. 272. Probation prepared a presentence investigation report ("PSR") in anticipation of sentencing. The PSR recommended a total offense level of 42, which included a two-point enhancement for possession of a firearm, a two-point enhancement for committing the offense as part of a pattern of criminal conduct engaged in as a livelihood, and a four-point enhancement for being an organizer or leader. PSR at ¶¶ 52, 53, 55 & 60, ECF No. 341. The PSR provided for a criminal history category of I, resulting in an imprisonment range of 360 to 480 months. Id. at ¶ 108. Trial counsel made numerous objections to the PSR, including an objection to the two-level enhancement for possession of a firearm and a request that the court impose a sentence based on a drug weight of between 28 and 279 grams of crack cocaine without increasing the drug weight for relevant facts found at sentencing. Id. at 26-28.

         On June 26, 2014, the court sentenced Jones to 280 months' imprisonment. Judgment at 2, ECF No. 335. Trial counsel argued at the sentencing hearing that the firearm enhancement should not be applied to Jones because Jones was never found with a weapon and coconspirators who possessed weapons were actually involved in a separate conspiracy. Sent. Hr'g Tr. at 7-8, ECF No. 406. In addition, counsel argued that Jones should not have received a leader enhancement because the evidence at trial did not support such a finding. Id. at 9. Trial counsel also argued that the drug weight attributable to Jones should not exceed 279 grams because a jury had determined that he was not guilty of conspiracy to distribute 280 grams or more of crack cocaine. Id. at 22-23. Finally, trial counsel argued that the criminal livelihood enhancement should not apply because Jones was involved in "making money with his rap business" and did not rely on drug sales for his entire income. Id. at 32. The government responded that Jones' income was derived from drug sales and that he had not made money from music sales. The court overruled the objections, concluding that there was sufficient evidence to establish that Jones was part of a conspiracy that involved at least 1.4 kilograms of crack cocaine, that the evidence of firearms belonging to coconspirators was sufficient and that Jones' income derived mainly from drug sales. Id. at 25, 37.

         Jones appealed, claiming that the trial court erred by failing to require the jury to determine drug quantity, admitting audio recordings of jailhouse conversations, ordering forfeiture and imposing an unreasonable sentence. United States v. Tones. 622 F.App'x 204 (4th Cir. Aug. 24, 2015). The Fourth Circuit affirmed on all claims. Id. Jones timely filed this § 2255 motion, asserting: (1) trial counsel incorrectly advised him about the jury's role, sentencing and drug weight, which led Jones to reject a plea offer; (2) trial counsel failed to object to the PSR's drug weight determination and appellate counsel failed to appeal the issue; (3) trial counsel failed to object to the PSR's recommended gun enhancement; (4) appellate counsel failed to argue that the district court did not resolve disputed issues of fact before dismissing the objections to the leadership and firearm enhancements; (5) appellate counsel failed to file a reply to government's brief; and (6) the government engaged in prosecutorial misconduct on appeal by providing false information regarding the criminal livelihood enhancement to the court of appeals.

         II. DISCUSSION

         To state a viable claim for relief under § 2255, a petitioner 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). Jones bears the burden of proving grounds for a collateral attack by a preponderance of the evidence. Miller v. United States, 261 F.2d 546, 547 (4th Cir. 1958).

         A. Ineffective Assistance of Counsel

         Criminal defendants have a Sixth Amendment right to "reasonably effective" legal assistance. Strickland v. Washington. 466 U.S. 668, 687 (1984). In order to establish that his counsel's assistance was not reasonably effective, a defendant must satisfy a two-prong analysis: he must show both that counsel's performance fell below an objective standard of reasonableness and that he was prejudiced by counsel's alleged deficient performance. Strickland, 466 U.S. at 669. 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; see also 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." Id.

         To satisfy the prejudice prong of Strickland, 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. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id

         (1) Erroneous Trial Counsel Advice

         Jones argues that his trial counsel gave him erroneous advice about whether a jury could find him guilty of conspiracy if it concluded that he was not responsible for 280 grams of crack cocaine, as alleged in the indictment. He claims that counsel told him that a jury would have to find him not guilty if it concluded that he participated in the conspiracy but was responsible for less than 280 grams of crack cocaine. Jones argues that had he understood that he could be convicted of a ...


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