United States District Court, W.D. Virginia, Harrisonburg Division
Michael F. Urbanski United States District Judge
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.
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.
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.
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
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
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.
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.
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.
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).
Ineffective Assistance of Counsel Claims
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 ...