United States District Court, W.D. Virginia, Roanoke Division
Michael F. Urbanski United States District Judge.
Kearrah Monique Jones was found guilty following a six-day
trial of conspiracy to distribute 28 grams or more of crack
cocaine and was sentenced to 120 months in prison. She filed
a motion to vacate, set aside, or correct her sentence, under
28 U.S.C. § 2255, <raising multiple claims of
ineffective assistance of counsel. The government responded
and Jones replied, making this matter ripe for adjudication.
In addition, Jones filed an amended § 2255 motion
challenging the constitutionality of the statutes under which
she was indicted and found guilty. 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 and dismiss Jones'
§ 2255 motion and amended § 2255 motion.
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. § 841(a)(1), (b)(1)(A) and 846. Jones was
appointed counsel. On January 21, 2014, Jones and four
codefendants proceeded to trial. The government argued that
Jones was involved in a crack cocaine trafficking conspiracy
run by her two brothers and that she oversaw the conspiracy
after her brothers were incarcerated. Tr. Trans, at 75, ECF
No. 402. In addition, the police had a confidential informant
purchase cocaine from Jones on three occasions. Tr. Trans, at
138, ECF No. 403; Tr. Trans, at 151-52, ECF No. 400.
Following the close of the government's case, defense
counsel moved for judgment of acquittal, arguing that the
government had failed to establish that the conspiracy
involved 280 grams or more of crack cocaine. Tr. Trans, at
109-110, ECF No. 400. Defense counsel also argued in her
closing statement that the government had proved neither that
Jones was involved in the conspiracy nor that she was
responsible for 280 grams of crack cocaine. Tr. Trans, at 93,
ECF No. 402, Tr. Trans, at 50-51, ECF No. 404. This motion
was denied. Id. at 111-12.
jury was tasked with determining whedier 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. 274.
Probation Department prepared a presentence investigation
report ("PSR") in anticipation of sentencing. The
PSR recommended a total offense level of 36, which included a
two-point enhancement for being an organizer or leader in the
conspiracy. PSR at ¶¶ 55 & 60, ECF No. 342. The
PSR provided for a criminal history category of IV, resulting
in an imprisonment range of 262 to 327 months.
Id. at ¶ 101. Defense counsel made numerous
objections to the PSR, including an objection to the drug
weight attributed to Jones. Id. at 25. Counsel
argued that Jones should not be held responsible for any drug
sales before she joined the conspiracy, no witness at trial
reported her involvement in the conspiracy before November
2012, and only one witness alleged her involvement before
January, 2013. A probation officer responded that the
evidence at trial established that Jones had been involved in
the conspiracy from the beginning. Counsel also objected to
the two-point enhancement, claiming that Jones was not a
manager of the conspiracy, but the probation officer
concluded that the enhancement was appropriate.
counsel filed a sentencing memorandum in which counsel
argued, again, that there was no evidence that Jones was
involved in the conspiracy from its inception in 2005. Sent.
Mem. at 1, ECF No. 324. Counsel noted that although search
warrants had been executed on residences in which Jones lived
with other family members, and in which drugs were found,
there was no evidence that any illegal material seized
belonged to Jones. Accordingly, counsel argued that the
correct drug quantity should be that found by the jury,
between 28 and 279 grams of crack cocaine. Id. at 3.
Counsel also challenged, again, the two-point enhancement for
being a leader or manager of the conspiracy. Id.
23, 2014, the court held a sentencing hearing in which
defense counsel again asserted her objection to the drug
quantity attributed to Jones in the PSR. Sent. Hr'g.
Tran. at 15, ECF No. 406. The government responded that Jones
participated in three telephone calls in which a total of 504
grams of crack were discussed. Id. at 17. In
addition, 1.1 kilograms of crack were seized from members of
the conspiracy after August 2012. Id. at 18.
Accordingly, the government argued mat "based on direct
hands-on involvement. . . 840 grams is just not a
stretch." Id. at 20-21. The court overruled
defense counsel's objections to the quantity of drugs
attributable to Jones. Id. at 25. The court then
sentenced Jones to 120 months' imprisonment. Judgment at
2, ECF No. 337. The court imposed a downward variance,
concluding that although her participation in the conspiracy
was considerable, it was much less than her brothers. Sent.
Hr'g. Tr.- at 119, ECF No. 406.
appealed, claiming that the trial court erred by sua sponte
submitting to the jury a special verdict form that permitted
the jury to make an alternative drug weight finding,
admitting audio recordings of jailhouse conversations,
ordering forfeiture and imposing an unreasonable sentence.
United States v. Jones. 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 that trial counsel erred by: (1) failing to
challenge the PSR's drug quantity finding as not
supported by the record and failing to object to the
sentencing court's adoption of the PSR and drug quantity
finding, including the amount of drugs seized and attributed
to her; and (2) failing to argue that any drug activity
occurring before Jones joined the conspiracy should not be
attributed to her. In addition, Jones filed a motion to
amend/correct her § 2255 motion, in which she argues
that the 21 U.S.C. §§ 841 and 851 are
unconstitutional because they do not include penalty
provisions and 21 U.S.C. § 846 is unconstitutionally
vague because it does not adequately inform citizens of the
conduct that the conspiracy statute proscribes.
state a viable claim for relief under § 2255, a
petitioner must prove: (1) that the 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). 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).
Ineffective Assistance of Counsel
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 counsel's assistance was not reasonably
effective, a defendant must satisfy a two-prong analysis: the
defendant must show both that counsel's performance fell
below an objective standard of reasonableness and that the
defendant was prejudiced by counsel's alleged deficient
performance. Id. 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." Strickland, 466 U.S.
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 ...