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United States v. Koonce

United States District Court, W.D. Virginia, Charlottesville Division

March 16, 2017

UNITED STATES OF AMERICA
v.
RICHARD J. KOONCE III, Defendant. Civil Action Nos. 3:16-cv-80968, 3:16-cv-81220

          MEMORANDUM OPINION

          Hon. Glen E. Conrad Chief United States District Judge.

         Richard J. Koonce, III, 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, arguing that Koonce has not raised any issues entitling him to relief. Koonce has responded, making this matter ripe for consideration. Upon review of the entire record, the court concludes that the government's motion to dismiss must be granted.

         I.

         On July 23, 2014, a grand jury returned a 25-count indictment against Koonce and multiple codefendants for drug-related criminal conduct. Koonce was charged with conspiracy to distribute and possess with intent to distribute a mixture or substance containing a detectable amount of heroin, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C))("Count Two"); possession of a mixture or substance containing a detectible amount of cocaine, in violation of 21 U.S.C. § 844(a) ("Count Fifteen"); and possession of a mixture or substance containing a detectible amount of heroin, in violation of 21 U.S.C. § 844(a) ("Count Sixteen").

         On December 23, 2014, Koonce pleaded guilty, pursuant to a written plea agreement, to Count Two. In exchange, the government agreed that it would move for dismissal of the remaining counts. The parties stipulated that Koonce would be held responsible for at least 60 kilograms but less than 80 kilograms of marijuana, resulting in a base offense level of 20, pursuant to United States Sentencing Guideline ("U.S.S.G.") § 2D1.1. (Plea at 1, 3, ECF No. 186.) However, the plea agreement also made clear that "other guideline sections may be applicable." (Id.) Under the plea agreement, Koonce also waived his right to appeal and to collaterally attack his conviction and sentence, except for claims of ineffective assistance of counsel. (Id. at 7-8.) At his guilty plea hearing, Koonce affirmed that he had had an adequate opportunity to read and discuss the indictment and plea agreement with counsel, that he understood the plea agreement, and that he was waiving his rights to appeal and collaterally attack his conviction and sentence, except in very limited circumstances. (Plea Hr'g Tr. at 5, 10, 11-12, ECF No. 330.) In addition, Koonce affirmed that he was "satisfied with [counsel's] services in [his] case." (Id. at 33.) The prosecution summarized the evidence against him: that Koonce obtained heroin from co-conspirators, used some and sold some in order to support his habit. (Id. at 31.) He agreed that the recitation of facts was accurate and that "the government has evidence to support" the count against him. (Id. at 32.) Furthermore, Koonce affirmed that he was guilty. (Id. at 35.) The court accepted Koonce's plea after concluding that he was competent and capable of making an informed plea and that his plea was knowing and voluntary. (Id. at 35-36.)

         A Presentence Investigation Report ("PSR") was prepared in anticipation of sentencing. The PSR recommended that Koonce receive a base offense level of 32, rather than the 20 stipulated to in the plea agreement, because he qualified as a career offender. (PSR ¶ 61, ECF No. 271.) The PSR relied on two prior cocaine distribution convictions, one from 1993 and one from 2004, to support the enhancement. (Id. ¶¶ 72, 79.) The PSR recommended a criminal history category of VI, and an advisory guideline range of 151 to 188 months' incarceration. (Id. ¶ 127.)

         Defense counsel made numerous objections to the PSR. First, he argued that convictions that were more than 15 years old should not be used to calculate Koonce's criminal history category, (hi at 27.) Specifically, counsel took issue with a 1993 grand larceny conviction and the 1993 cocaine distribution conviction, which had been used to support the career offender designation. (Id.) The probation officer responded that because Koonce had multiple probation violations that resulted in active periods of incarceration occurring within 15 years of his offense conduct, the convictions counted toward his criminal history under U.S.S.G. §§ 4A1.2(k)(1) and (2). (hi at 27-28.) Counsel also objected to one criminal history point assigned for a 2004 arrest for possessing cocaine, when this conduct constituted the same "common scheme" or "plan" as that comprising a separate conviction: his 2004 convictions for distribution of cocaine. (11 at 28.) The probation officer responded that because the offenses occurred on separate dates, were charged in separate charging documents, and resulted in separate arrests and sentences, the counting of both convictions toward Koonce's criminal history score was justified. Defense counsel argued that Koonce deserved a reduction in his base offense level because he played a minor role in the conspiracy. The probation officer disagreed, concluding that no reduction was appropriate because Koonce was an important member of the conspiracy. (II at 30 to 31.) Finally, defense counsel objected to Koonce's status as a career offender but the probation officer concluded that it was appropriately applied because of Koonce's prior drug convictions.

         The court held a sentencing hearing on June 24, 2015. After reviewing each objection made to the PSR, the court noted that the probation officer "correctly assessed the arguments" and objections and concluded that "the probation officer's responses to the objections are well taken." (Sent. Hr'g Tr. at 7, ECF No. 331.) Accordingly, the court overruled the objections and adopted the PSR. (Id. at 8, 9.) Defense counsel presented evidence in mitigation, including certificates from Koonce's participation in programs in jail and newspaper articles regarding his son. (Id. at 11.) The government requested a reduced sentence of 60 to 90 months from his guideline range of 151 to 188 months, because of Koonce's substantial assistance under U.S.S.G. § 5K1.1 (Id. at 12.) The court sentenced Koonce to 60 months. (Id. at 24.) Koonce did not appeal.

         On May 18, 2015, pursuant to Standing Order 2015-5, the court appointed counsel to represent Koonce and provide supplemental briefing, if necessary, in light of the decision of the United States Supreme Court in Johnson v. United States, 135 S.Ct. 2551 (2015). Subsequently, counsel declined to file additional pleadings and filed a notice of withdrawal from representation. (Notice at 1, ECF No. 318.) On June 10, 2016, Koonce filed a § 2255 motion, 3:16-cv-80968, arguing that he received ineffective assistance because counsel: (1) did not challenge the factual allegations presented by the government, including the drug weight attributed to Koonce; (2) did not provide Koonce with any of the discovery in the case; (3) failed to challenge his criminal history scoring; and (4) failed to object to the government's filing of an enhanced sentence for a felony drug offense, pursuant to 21 U.S.C. § 851. In addition, Koonce argues that the court erred by adopting the PSR, which included an erroneous criminal history calculation, and by sentencing him as a career offender without the requisite predicate offenses and in violation of the Supreme Court's decision in Johnson. He filed a second § 2255 motion, 3:16-cv-81220, alleging that he received ineffective assistance from counsel appointed pursuant to Standing Order 2015-5, to raise any potential Johnson claims.

         II.

         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 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). Koonce 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 Claims

         Koonce makes numerous ineffective assistance of counsel claims. The proper vehicle for a defendant to raise an ineffective assistance of counsel claim is by filing a § 2255 motion. United States v. Baptiste. 596 F.3d 214, 216 n.1 (4th Cir. 2010). However, ineffective assistance claims are not lightly granted; "[t]he benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the [proceeding] cannot be relied on as having produced a just result." Strickland v. Washington, 466 U.S. 668, 686 (1984). Accordingly, 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 establishing prejudice due to counsel's alleged deficient performance. Strickland, 466 U.S. at 687. 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 performance, the outcome of the proceeding would have been different. Id. at 694. A defendant who has pleaded guilty must demonstrate that, but for counsel's alleged error, there is a reasonable probability that he would not have pleaded guilty and would have insisted on going to trial. Hill v. Lockhart474 U.S. 52, 59 (1985). "A ...


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