United States District Court, W.D. Virginia, Abingdon Division
Zachary T. Lee, Assistant United States Attorney, Abingdon,
Virginia for United States; James Thomas Oxendine, Pro Se
P. Jones United States District Judge
defendant, James Thomas Oxendine,  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.
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his supervised release was revoked and he was given an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
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. 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
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222, 224 (4th Cir. 2015) (unpublished).
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.
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).
Incorrect Criminal History Category.
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.
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. 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).
Testimony of ...