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United States v. Marple

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

April 11, 2017



          Michael F. Urbanski United States District Judge

         Brandi Nichole Marple, a federal inmate proceeding pro se, has filed a motion and amended motion to vacate, set aside, or correct her sentence pursuant to 28 U.S.C. § 2255. Marple alleges that counsel provided ineffective assistance. The government filed a motion to dismiss and the time within which to respond has now expired, making this matter ripe for disposition. After reviewing the record and briefs, the court concludes that Marple has not stated any meritorious claims for relief under § 2255 and the government's motion to dismiss must be granted.


         On October 16, 2014, a federal grand jury indicted Marple and a codefendant, charging them with knowingly and intentionally distributing a measurable quantity of a mixture and substance containing a detectable amount of heroin, the use of which resulted in the serious bodily injury and death of A.B.L, pursuant to 21 U.S.C. § 841(a)(1). Indictment at 1, ECF No. 16. On February 11, 2015, Marple and the government entered into a written plea agreement, pursuant to Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure, in which Marple agreed to plead guilty to the lesser included offense of distribution of heroin. Plea Agree, at 1, ECF No. 47. The plea agreement noted that the maximum term of imprisonment Marple could face for a distribution of heroin conviction was 20 years, but if she were convicted of distribution of heroin resulting in death, she would have faced a mandatory minimum term of imprisonment of 20 years and a maximum of life. Id. at 1-2. The parties agreed that Marple would be sentenced to 114 months' incarceration. Id. at 2.

         A guilty plea hearing was held on March 3, 2015. Marple affirmed that she had received a copy of the indictment and plea agreement and had had an adequate opportunity to discuss both with counsel. Plea Hr'g Tr. at 5-6, ECF No. 113. Marple affirmed that she was satisfied with counsel's representation. Id. at 5. The government reviewed the essential terms of the plea agreement on the record and noted that Marple gave up her right to appeal and to collaterally attack her sentence except in limited circumstances. Id. at 6-10. The court asked Marple whether she understood that "this plea agreement is pursuant to Rule 11(c)(1)(C), which requires the district court judge to impose the sentence that is agreed upon in the plea agreement, that sentence is nine and a half years, or 114 months of imprisonment, if he accepts the plea agreement?" Id. at 11. Marple stated that she understood. Id. Marple affirmed her understanding that by pleading guilty, she was giving up her right to appeal and to collaterally attack her sentence. Id. at 11-12. The government filed a statement of facts signed by Marple and her counsel, which provided that Marple sold heroin to A.B.L. Statement of Facts ¶ 2, ECF No. 48. A medical examiner concluded, following an autopsy, that A.B.L. later died of combined heroin, Citalopram and ethanol poisoning. Id. A forensic toxicologist concluded that A.B.L. died of a heroin overdose. Id. at 3. Marple admitted that the statement of facts accurately reflected die facts of the case and that she wanted to plead guilty. Plea Hr'g Tr. at 20-21, ECF No. 113. The court accepted her guilty plea after finding that Marple was fully competent and capable of entering an informed plea, that she was aware of the nature of the charges against her and the consequences of pleading guilty. Id. at 22.

         The Presentence Investigation Report ("PSR") recommended a total offense level of 21, which included a three-level reduction for acceptance of responsibility, a criminal history category of IV, resulting in a guideline imprisonment range of 51 to 71 months. PSR ¶ 63, ECF No. 93. The government filed an objection, arguing for a base offense level of 38 based on the "offense of conviction, " for distribution of heroin resulting in death. Id. at 18. The probation officer responded that it did not use the "offense of conviction" analysis because the record did not include evidence "beyond a reasonable doubt" that A.B.L. died from a heroin overdose, as the cause of death listed on the death certificate and included in the statement of facts was, "combined heroin, Citalpram, and ethanol poisoning." Id.

         Both the defense and the government filed sentencing memoranda. The government argued that the sentencing factors in 18 U.S.C. § 3553(a) supported imposition of the agreed-upon sentence of 114 months, but again argued that Marple's base offense level should be 38. Sent. Mem. at 7-18, ECF No. 79. The defense also argued for the agreed-upon sentence of 114 months. Sent. Mem. at 2, ECF No. 81. Defense counsel acknowledged that although the PSR calculated Marple's guideline range as 57 to 71 months, that range was based on a guilty plea to the offense of simple distribution; were Marple convicted of the charge in the indictment-distribution resulting in death-she would have faced a mandatory minimum sentence of 20 years and a significantly higher guideline range. Id.

         A sentencing hearing was held on June 4, 2015. The court began by asking whether Marple was still satisfied with her counsel and she affirmed that she was. Sent. Tr. at 2, ECF No. 114. The government and defense counsel argued their respective positions regarding Marple's appropriate base offense level, but both agreed that the court need not decide the issue because the plea agreement was made pursuant to Rule 11(c)(1)(C). Id. at 3, 4. Then the court asked Marple, in light of the disagreement over the applicable base offense level, whether she still wanted "to go ahead with this plea agreement?" Id. at 7. Marple answered in the affirmative. The court clarified, "You understand if I accept it, I will be required to sentence you to a period in the Bureau of Prisons of 114 months? You understand that?" Id. Marple against answered, "yes." Id. The court overruled the government's objection and adopted the PSR. Id. at 8.

         In arguing for the 114-month sentence, defense counsel noted that the sentence was appropriate because although it was "significantly higher than what the guidelines recommend, " it was "significantly lower than the mandatory minimum or the guidelines that would apply if she had been convicted of the greater offense." Id. at 27. Defense counsel also highlighted some of the questions regarding the evidence against Marple, including whether A.B.L. injected heroin that he received from a different dealer the night before he died, and whether the heroin was independently sufficient to cause A.B.L.'s death, rather than a combination of the various intoxicants found in his blood stream. Id. at 28. While recognizing the "uncertainty that's out there" defense counsel also recognized the serious risk that if Marple were found guilty, she would face a mandatory minimum of 20 years in prison. Id. at 29. The court accepted Marple's guilty plea and sentenced her to 114 months' incarceration. Id. at 35.

         Marple did not appeal. In her initial § 2255 petition, Marple raises two ineffective assistance claims: (1) counsel did not adequately investigate the case or review the evidence with Marple and (2) counsel failed to adequately inform her of the consequences of her guilty plea. § 2255 Mot. at 5, 6, ECF No. 101-1. Marple also filed an amended § 2255 petition, arguing that she is entitled to a two-point reduction in her base offense level, following an amendment to U.S. Sentencing Guideline ("U.S.S.G.") § 3B1.2, for playing a minor role in the criminal activity. Amen. § 2255 Mot. at 1, ECF No. 115.


         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). Marple 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 Claims

         Criminal defendants have a Sixth Amendment right to effective legal assistance. Strickland v. Washington, 466 U.S. 668, 687 (1984). 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.l (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. 466 U.S. at 686. 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. Id. 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 ...

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