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United States v. Jones

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

April 19, 2017



          Michael F. Urbanski United States District Judge.

         Defendant 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.

         I. BACKGROUND

         On 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.[1] 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.

         The 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.

         The 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.

         Defense 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.

         On June 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.

         Jones 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.[2] 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.


         To 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).

         A. Ineffective Assistance of Counsel

         Criminal 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. at 689.

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;To satisfy the prejudice prong of Strickland, a defendant must show that there is a reasonable probability that, but for counsel&#39;s unprofessional error, the outcome of the proceeding would have been different. Id. at 694. "A reasonable probability is a ...

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