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Calcagni v. United States

United States District Court, E.D. Virginia, Norfolk Division

March 25, 2019

BRIDGET SHEILA CALCAGNI, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          OPINION AND ORDER

          MARK S. DAVIS, CHIEF UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on Bridget Sheila Calcagni's (*Petitioner") Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255. Petitioner's § 2255 Motion raises one claim of ineffective assistance of counsel based on her attorney's failure to object to a two-level enhancement applied at sentencing. ECF Nos. 31, 32. After reviewing the record, the Court finds that an evidentiary hearing is unnecessary because the record conclusively demonstrates that Petitioner is not entitled to any relief. See R. Gov. § 2255 Proc. in U.S. Dist. Cts. 8(a). For the reasons set forth below, Petitioner's § 2255 motion is DENIED.

         I. FACTUAL AND PROCEDUARL HISTORY

         On November 15, 2016, pursuant to a written plea agreement, Petitioner pled guilty to one count of an indictment: Count One, Conspiracy to Distribute and Possess with Intent to Distribute 50 Grams or More of Methamphetamine, commonly known as "Ice," in violation of Title 21, United States Code, Sections 846, 841(a)(1), and 841(b) (1) (A) . ECF No. 15. Following Petitioner's guilty plea, the probation officer prepared a presentence investigation report (“PSR") that applied a two-level enhancement to Petitioner's offense level for maintaining premises "for the purpose of manufacturing or distributing a controlled substance" under section 2Dl.l(b)(l2) of the United States Sentencing Guidelines ("Premises Enhancement"). PSR ¶ 18, ECF No. 20.

         Neither party objected to the application of the Premises Enhancement prior to the sentencing hearing on February 16, 2017. At such hearing, the undersigned prompted counsel to address the application of the Premises Enhancement in light of a recent ruling by the United States Court of Appeals for the Fourth Circuit:

The Court: . . . [T]here was a premises enhancement there that the Fourth Circuit reviewed the case on plain error and raised a question about the premises enhancement. And so that was last year. Since that time, we've kind of been keeping an eye out when we see it in the presentence report. Many times I think what happens is the discovery reflects sufficient information for the premises enhancement, but it's not always necessarily stated or set out, you know, in the presentence report. And so I thought that we needed to go ahead and address that.

Hr' g Tr. at 5-6, ECF No. 40. The Government responded that it had discussed the issue with Petitioner's counsel, Mr. Dunn, and that Mr. Dunn had discussed the issue with Petitioner, who did not wish to pursue further litigation on the issue. Id. at 6. Then, Mr. Dunn and the undersigned engaged in the following exchange:

Mr. Dunn: .... I was given discovery by [the Government], and there's more evidence in the discovery than there is in the presentence report. And I believe some of that evidence supports the enhancement. And based on that evidence that I've reviewed, which I'd rather not go into if I'm not required to, I believe the enhancement is supported. That's why I did not object. I discussed that with my client and she wishes me to take that position as well today.
The Court: Okay.
Mr. Dunn: And after [the probation officer] raised the issue, her and I just spoke about it, and we wish to move forward without making that objection.
The Court: Okay. So I understand that. And that's what I thought was probably the case. And so you're telling me that, based on the discovery, you've satisfied yourselves that the standard; that is if the defendant maintained a premise for the purpose of manufacturing or distributing a controlled substance has been met and that when you look at Application Note 17, it discusses what that means. It says "Manufacturing or distributing a controlled substance need not be the sole purpose for which the premises was maintained, but must be one of the defendant's primary or principle uses of the premises rather than one of the defendant's incidental or collateral uses of the premises." And in making the determination, the court should "Consider how frequently the premises was used by the defendant for manufacturing or distributing a controlled substance and how frequently the premises was used by the defendant for lawful purposes."
So in the discovery that you received, Mr. Dunn, did it address these frequency issues?
Mr. Dunn: Yes, Your Honor.
The Court: Okay. And so after discussing that with your client, you all decided that it would be best not to object, because you didn't want to put the government to the test of bringing in a witness, getting on the stand and talking about how ...

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