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United States v. Rushon

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

January 6, 2020

UNITED STATES OF AMERICA
v.
HEATHER DAWN RUSHON, Defendant.

          MEMORANDUM OPINION

          HON. GLEN E. CONRAD UNITED STATES DISTRICT JUDGE

         Heather Dawn Rushon, a federal inmate proceeding pro se, has moved to vacate, set aside, or correct her sentence under 28 U.S.C. § 2255. The government has filed a motion to dismiss, to which Rushon has responded by seeking to amend her § 2255 motion to include an additional claim. For the reasons that follow, the government's motion to dismiss will be granted, Rushon's motion to vacate will be denied, and her request to amend will be denied as futile.

         Background

         On January 19, 2017, a grand jury in the Western District of Virginia returned a four-count indictment against Rushon. Count One of the indictment charged Rushon with conspiracy. to distribute and possess with intent to distribute 50 grams or more of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B), and 846. On July 17, 2017, Rushon entered a plea of guilty to the conspiracy offense charged in Count One, pursuant to a written plea agreement. In exchange, the government agreed to dismiss the remaining counts of the indictment.

         The parties' plea agreement included a section pertaining to the application of the United States Sentencing Guidelines ("U.S.S.G"). The parties stipulated that Rushon should be held responsible for between 500 and 1, 500 grams of methamphetamine, resulting in a base offense level of 30 under U.S.S.G. § 2D1.1. Rushon also acknowledged that she may receive a two-level enhancement for possession of a dangerous weapon under U.S.S.G. § 2D1.1(b)(1). However, Rushon reserved the right to contest the application of the enhancement.

         In preparation for sentencing, a probation officer prepared a presentence investigation report ("PSR") that summarized the offense conduct. According to the PSR, an investigation conducted by the Drug Enforcement Administration, the Virginia State Police, and local law enforcement agencies revealed that Rushon was involved in the distribution of a significant quantity of methamphetamine in Southwest Virginia from 2012 to 2016. On two occasions during that period, law enforcement officers utilized confidential informants to make controlled purchases of methamphetamine from Rushon.

         On April 11, 2016, a confidential informant advised law enforcement officers that Rushon was staying at a Super 8 hotel in Wytheville, Virginia, and that there were multiple envelopes in Rushon's room containing what appeared to be methamphetamine. The confidential informant also reported that Rushon had been observed walking from her hotel room to a 2015 Dodge Dart in the parking lot. That same day, law enforcement officers obtained and executed a search warrant for Rushon's hotel room and vehicle. During the execution of the warrant, officers found baggies containing methamphetamine and oxycodone, a digital scale, and $1, 520 in currency. Law enforcement officers also found additional currency and a disassembled revolver in Rushon's vehicle.

         Based on the information that Rushon provided following her arrest, the probation officer determined that Rushon should be held responsible for over 9 kilograms of methamphetamine, which resulted in a base offense level of 34 under U.S.S.G. § 2D1.1. The probation officer also applied a two-level firearm enhancement under § 2D 1.1 (b)(1) and a three-level reduction for acceptance of responsibility under § 3E1.1, resulting in a total offense level of 33.

         Rushon's attorney submitted objections to the PSR. In particular, counsel objected to the quantity of methamphetamine attributed to Rushon by the probation officer. Counsel also objected to the application of the firearm enhancement, emphasizing that the revolver found in Rushon's vehicle was disassembled and that it was located in the locked trunk.

         Rushon appeared for sentencing on November 14, 2017. During the hearing, the court heard argument from counsel regarding the objections to the presentence report. The court sustained Rushon's objection to the quantity of methamphetamine attributed to her in the PSR, and instead adopted the quantity agreed to by the parties in the plea agreement. However, the court overruled Rushon's objection to the firearm enhancement. Although defense counsel continued to maintain that the presence of the disassembled revolver in the trunk of Rushon's vehicle did not support the application of the enhancement, counsel acknowledged that agents had been able to fully operate the revolver after assembling it. The court determined that "the presence of a firearm that could easily be made operational [was] sufficient to support [the] application" of the two-level enhancement. Sentencing H'rg Tr. 18, Dkt. No. 57.

         Upon ruling on the objections to the presentence report, the court calculated a total offense level of 29. With a criminal history category of II, the defendant's advisory Guidelines range was 97 to 121 months in prison. The court granted a substantial assistance motion made by the government and imposed a term of imprisonment of 66 months. Rushon did not appeal her conviction or sentence.

         Rushon has since moved to vacate her sentence by filing a form motion under 28 U.S.C § 2255.[*] In her motion, Rushon argues that the court erred at sentencing by applying the two-level enhancement for possession of a firearm under U.S.S.G. § 2D1.1(b)(1).

         Rushon recently submitted a letter indicating that she wishes to assert an additional claim based on the Supreme Court's decision in Sessions v. Dimaya, 138 S.Ct. 1204 (2018), since "[her] gun wasn't used or brandished in any way." Dkt. No. 61. The court ...


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