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United States v. Bryan

United States District Court, W.D. Virginia, Big Stone Gap Division

December 4, 2018


          Erin M. Kulpa, Assistant United States Attorney, Charlottesville, Virginia, for United States;

          John Roma Bryan, III, Defendant Pro Se.


          James P. Jones United States District Judge

         The defendant, John Roma Bryan III, proceeding pro se, has filed a motion seeking relief under 28 U.S.C. § 2255. The United States has filed a motion to dismiss, to which the defendant has responded. For the reasons stated, I will grant the motion to dismiss and dismiss the § 2255 motion.

         After pleading guilty, the defendant was sentenced by this court on October 18, 2016, to a total term of 72 months imprisonment, consisting of 12 months on Count One of the Indictment, to be followed by a term of 60 months on Count Twenty. Count One charged the defendant with conspiring to distribute and possess with intent to distribute Alpha-pyrrolidinopentiophenone (“Alpha-PVP”), in violation of 21 U.S.C. §§ 846 and 841(b)(1)(C), and Count Twenty charged him with possession of a firearm in furtherance of a drug-trafficking crime or the use or carrying of a firearm during and in relation to a drug-trafficking crime, in violation of 18 U.S.C. § 924(c). His sentence was within the range calculated under the Sentencing Guidelines but was at the high end of the range.

         In his § 2255 motion, the defendant contends that his conviction and sentence were the result of ineffective assistance of counsel. In his first ground, he asserts that he did not possess the required mens rea to be convicted of Counts One and Twenty with respect to Alpha-PVP, which was listed as a controlled substance on March 7, 2014, and prior to that date was a controlled substance analogue under the Controlled Substance Analogue Enforcement Act (“CSAEA”), 21 U.S.C. §§ 802(32) and 813. In his second ground, Bryan claims that the crime to which he pled guilty in Count Twenty does not exist. Finally, in his third ground, he asserts that counsel was ineffective in failing to attempt to have him sentenced before he finished serving a related state sentence so that he would be eligible for a reduction in his federal sentence under U.S. Sentencing Guidelines Manual (“USSG”) § 5G1.3(b)(1).

         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). The movant 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).

         Criminal defendants have a Sixth Amendment right to effective legal assistance. Strickland v. Washington, 466 U.S. 668, 687 (1984). Ineffective assistance claims, however, 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.” Id. at 686. To that end, a defendant must satisfy a two-prong analysis showing 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 687.

         To 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 defendant who has pleaded guilty must demonstrate that, but for counsel's alleged error, there is a reasonable probability that he would not have pleaded guilty and would have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 59 (1985). “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694.

         Bryan contends he did not have the knowledge required under McFadden v. United States, 135 S.Ct. 2298, 2305 (2015), because he did not know that Alpha-PVP was treated as a controlled substance, nor did he know that Alpha-PVP had a chemical structure substantially similar to the chemical structure of a Schedule I or II controlled substance. According to Bryan, his counsel provided ineffective assistance by allowing him to plead guilty to a crime for which he did not possess the required mens rea. He further asserts that at the time he was found to be in possession of a firearm on March 8, 2014, he did not actually possess Alpha-PVP and his coconspirator Rick Hillman was not actually distributing Alpha-PVP from Bryan's home where the firearm was found.

         Bryan misconstrues McFadden's holding. In McFadden, the Supreme Court held that one way the offense's knowledge requirement can be established is “by evidence that the defendant knew the specific analogue he was dealing with, even if he did not know its legal status as an analogue.” Id. Thus, the government is not necessarily required to show that the defendant knew that the substance's chemical structure and effect were substantially similar to a controlled substance. Even if that knowledge were required, it could be shown by circumstantial evidence.

         During his plea colloquy, Bryan testified that he was fully satisfied with his attorney's representation. He stated that he was pleading guilty because he was in fact guilty. When asked to describe in his own words why he was guilty, Bryan stated, “I bought and sold bath salts while in possession of a firearm.” Guilty Plea Hr'g Tr. 53, ECF No. 947. In describing the evidence against Bryan, the prosecutor proffered that

[F]rom Mr. Bryan's cell phone . . . there was discussion about trading alpha-PVP in exchange for guns; discussing the type of substance, whether he had the gravel form or the powder form of the drug; how much money was going to be made; exchanges with Josh Hughes specifically about how to - about how to distribute, what to distribute, and what may be available. And we have a witness that would testify at trial that he had received a quantity of alpha-PVP from Mr. Bryan in order to - in exchange for him providing a cash amount to bond one of the distributors on the Tennessee side out of jail.

Id. at 57. Bryan stated he did not contest any of these facts. In his response to the government's motion to dismiss, Bryan states that he “did know that the ‘bath salts' or ‘gravel' in this case had a similar effect to a controlled substance. This is, of course, the reason that he consumed it.” Reply Opp'n Gov't's Mot. Dismiss 1, ECF No. 967. He argues, however, ...

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