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United States v. Oxendine

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

April 20, 2018

UNITED STATES OF AMERICA
v.
JAMES THOMAS OXENDINE, Defendant.

          Zachary T. Lee, Assistant United States Attorney, Abingdon, Virginia for United States; James Thomas Oxendine, Pro Se Defendant.

          OPINION

          James P. Jones United States District Judge

         The defendant, James Thomas Oxendine, [1] proceeding pro se, filed a Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255, based on claims of ineffective assistance of counsel. The government filed a Motion to Dismiss, and this matter is now ripe for disposition. After reviewing the record, I will grant the United States' Motion to Dismiss.

         I.

         Oxendine was sentenced by this court in the past for a drug offense, served his sentence and began his term of supervied release. During his supervision, he committed other drug offenses, and was convicted and sentenced for those crimes. In addition, his supervised release was revoked and he was given an additional consecutive sentence for that revocation. Oxendine's present § 2255 motion attacks the revocation sentence.

         The specific facts are as follows. Oxendine pleaded guilty to possession with intent to distribute cocaine base, and I eventually sentenced him to 36 months incarceration to be followed by a six-year term of supervised release.[2] He was released from prison on January 14, 2011, and began his his term of supervised release. Unfortunately, Oxendine reverted to past conduct and was again prosecuted in this court for drug offenses. He pleaded guilty in Case No. 1:13CR00036 to conspiring to possess with intent to distribute cocaine base and cocaine, and distributing and possessing with intent to distribute a mixture or substance containing cocaine base. On November 10, 2014, I sentenced Oxendine to 151 months imprisonment. That same day, I held a hearing on a petition alleging violations of the conditions of his supervised release, based on his continued criminal conduct. Oxendine did not contest the violations. I concluded that he had violated the conditions of his supervised release and sentenced him to 36 months imprisonment to be served consecutively to the 151-month sentence.

         Oxendine appealed his 36-month revocation sentence, asserting that I had used an incorrect criminal history category in calculating his guideline range. The court of appeals affirmed. United States v. Oxendine, 619 Fed.Appx. 222, 224 (4th Cir. 2015) (unpublished).

         In his present § 2255 motion, Oxendine alleges that his attorney provided him with ineffective assistance by: (1) failing to object to the incorrect criminal history calculation; (2) failing to call a probation officer to testify regarding his rehabilitation efforts; and (3) failing to request a continuance of his supervised release violation hearing. Oxendine also filed a Motion to Amend his § 2255 motion, arguing, in support of his first alleged claim, that I applied the wrong criminal history category, resulting in a plainly unreasonable sentence.[3]

         II.

         To 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). Oxendine 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. Incorrect Criminal History Category.

         Oxendine first argues that his counsel erred by failing to argue that I use his correct Criminal History Category to calculate his advisory sentencing range. I applied a Criminal History Category of VI, relying on Oxendine's 2014 Presentence Investigation Report. Instead, as noted by the court of appeals in affirming Oxendine's revocation sentence, 619 Fed.Appx. at 223-24, I should have applied a Criminal History Category of V, relying on Oxendine's 2010 Presentence Investigation Report. See U.S. Sentencing Guidelines Manual (“USSG”) § 7B1.4 cmt. n. 1 (2013) (providing that a court should use the criminal history category as “determined at the time the defendant originally was sentenced to the term of supervision”). However, even assuming that counsel provided deficient performance, Oxendine cannot establish prejudice.

         Based on the proper Criminal History Category, the USSG Policy Statement advisory range for his supervised release revocation should have been 30 to 36 months and not the 33 to 41 months that I erroneously employed.[4] Nonetheless, I would have sentenced Oxendine to 36 months, even if I had been advised of the correct 30 to 36 month range. Oxendine was on supervised release for a drug conviction and within a year of release from prison, again engaged in the same type of drug-related criminal conduct. In addition, I “consider[ed] all of the evidence, and [took] into account the breach of trust demonstrated by the defendant by failing to abide by the conditions of his supervision, and consider[ed] the nature and circumstances of the violation and the history and characteristics of the defendant” in imposing the 36-month sentence. Revocation Hr'g Tr. 14, ECF No. 85. All of those factors made and continue to make his sentence for his supervised release violation appropriate. Therefore, Oxendine cannot establish that “but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668, 694 (1984).

         B. Testimony of ...


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