United States District Court, W.D. Virginia, Roanoke Division
GLEN E. CONRAD, CHIEF UNITED STATES DISTRICT JUDGE
Allen Entsminger, a federal inmate proceeding pro se, moved
to vacate, set aside, or correct his sentence under 28 U.S.C.
§ 2255. The government filed a motion to dismiss, and
Entsminger responded. This case was held in abeyance pending
a decision by the United States Supreme Court in Beckles
v. United States. 137 S.Ct. 886 (2017), which has now
been decided. Accordingly, this matter is ripe for
disposition. Upon review of the record, the court concludes
that Entsminger's claims lack merit, and the
government's motion to dismiss must be granted.
13, 2013, a grand jury charged Entsminger in an indictment
with three counts of knowingly and intentionally distributing
a mixture and substance containing a detectable amount of
cocaine, in violation of 21 U.S.C. § 841(a)(1) and
(b)(1)(C). These charges stemmed from an investigation into
cocaine trafficking in Roanoke, Virginia, during which
members of a Bureau of Alcohol, Tobacco and Firearms Task
Force conducted three controlled buys of cocaine from
Entsminger at his home.
18, 2013, Entsminger was arrested. At the time of his arrest,
he was on supervised release for a previous conviction for
being a felon in possession of a firearm. Entsminger entered
into a written plea agreement. He stipulated to a drug weight
of 50 grams but less than 100 grams of cocaine, corresponding
to a base offense level of 16 under United States Sentencing
Guidelines Manual ("U.S.S.G.") § 2D1.1. Plea
Agreement at 3, ECF No. 22. The plea bargain provided that
Entsminger might be treated as a career offender under
U.S.S.G. § 4BT.1, if the court determined that he had at
least two prior convictions for felony drug offenses and/or
crimes of violence. IcL Pursuant to the plea agreement,
however, the government agreed not to seek an enhanced
sentence under 21 U.S.C. § 851 based on Entsminger's
prior felony drug offense. IcL at 4.
court conducted a guilty plea hearing on August 19, 2013. At
the hearing, Entsminger 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. 43. Entsminger
further affirmed that he was "satisfied with all of the
elements of [counsel's] services in [his] case."
Id. at 32. He stated 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 at trial. Id. at 9. Entsminger also affirmed
that he understood that by pleading guilty he was waiving his
right to appeal or collaterally attack his plea and sentence,
other than to bring a claim for ineffective assistance of
counsel. Id. at 10-11.
stated that he understood that the maximum penalty he could
face for each of the three charges to which he pleaded guilty
was twenty years in prison. Id. at 8. The court
advised Entsminger that if his past offenses qualified him as
a career offender, he would face a higher advisory guidelines
range. Enstminger affirmed that he understood. Id.
Assistant United States Attorney ("AUSA") provided
a summary of the evidence against Entsminger. Id. at
29-31. She stated that a confidential informant purchased
approximately seven grams of cocaine from Entsminger at his
house on three separate occasions. Id. at 29-30.
After his arrest, Entsminger turned over to the arresting
officers an additional 32.3 grams of cocaine from his home.
Following his arrest, he was informed of his Miranda
rights, waived them, and then admitted his
involvement in distributing cocaine. Id. at 30-31.
Entsminger agreed with this summary of the evidence. Li at
31. He also admitted that he thought the plea agreement
correctly attributed to him a drug weight of between 50 to
100 grams of cocaine. Id. at 28.
affirmed that he wanted to plead guilty because he had
"distributed cocaine." Id. at 28, 34. The
court then accepted Entsminger's plea and found that he
was "fully competent and capable of making an informed
plea" and that his plea of guilty was knowing and
voluntary and supported by an independent basis in fact.
Id. at 34.
Probation Office prepared a presentence investigation report
("PSR"), recommending an enhanced offense level of
32 because Entsminger qualified as a career offender due to
two prior convictions for burglary and one prior conviction
for distribution of cocaine. PSR ¶ 18, 19, ECF No. 37.
With a three-point reduction for acceptance of
responsibility, the PSR proposed an adjusted total offense
level of 29, and a criminal history category of VI, which
resulted in an advisory guidelines range of 151 to 188
months' imprisonment. Id. at ¶ 67.
to the sentencing hearing, the government made a motion for
substantial assistance. At the hearing, the court first
revoked Entsminger's period of supervised release. Sent.
Tr. at 10, ECF No. 44. Entsminger affirmed that he had had a
chance to read and review the PSR before the hearing.
Id. at 11. Neither the Assistant United States
Attorney ("AUSA") nor defense counsel raised any
objections to the PSR and the court adopted it. Id.
at 12. The AUSA recommended a ten-point reduction to
Entsminger's offense level, from 29 to 19, due to the
substantial assistance that he provided, resulting in a
guidelines range of 63-78 months' imprisonment. She also
recommended that any sentence imposed for his supervised
release violation run concurrent to the sentence imposed in
the present action. Id. at 19. The court imposed a
sentence of 78 months each on Counts One, Two and Three to
run concurrently. It also imposed an additional 24 months for
the supervised release violation, to be served consecutive to
the 78-month sentence, reasoning that Entsminger's
supervised release violation was separate and distinct from
his current cocaine distribution plea. IcL at 26. Entsminger
did not appeal.
filed a § 2255 motion, arguing that counsel provided
ineffective assistance by failing to: (1) object to the
possibility that the government would file a motion pursuant
to 21 U.S.C. § 851 for an enhanced sentence; (2) object
to his status as a career offender under the guidelines; (3)
file a motion to suppress evidence; and (4) negotiate a
lawful plea agreement and sentence. Pursuant to Standing
Order 2015-5, the court appointed counsel to represent
Entsminger with regard to any claims he might raise under
Johnson v. United States, 135 S.Ct. 2551 (2015).
Counsel notified the court that he would not be filing an
amended § 2255 on Entsminger's behalf and moved to
withdraw, which the court granted. Entsminger filed two
amended motions to vacate, challenging his career offender
status under Johnson. Amend. § 2255 Mots., ECF
No. 80, 81. The court stayed Entsminger's case, pending a
decision by the Supreme Court in Beckles v. United
States, 137 S.Ct. 886 (2017). The Supreme Court issued a
decision in Beckles on March 6, 2017, making this
matter ready for adjudication.
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 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). Entsminger 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).
Ineffective Assistance of Counsel Claims
defendants have a Sixth Amendment right to effective legal
assistance. Strickland v. Washington,466 U.S. 668,
687 (1984). In order to establish a viable ineffective
assistance claim, 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 ...