United States District Court, E.D. Virginia, Norfolk Division
OPINION AND ORDER
S. DAVIS, CHIEF UNITED STATES DISTRICT JUDGE.
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
FACTUAL AND PROCEDUARL HISTORY
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.
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
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
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 ...