United States District Court, W.D. Virginia, Abingdon Division
Zachary T. Lee, Assistant United States Attorney, Abingdon,
Virginia, for United States; Amber Bilyeu, Pro Se Defendant.
P. JONES United States District Judge
defendant Amber Bilyeu, 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 movant has
responded. For the reasons stated, I will grant the motion to
dismiss and dismiss the § 2255 motion.
pleading guilty, the defendant was sentenced by this court on
March 20, 2018, to a term of 262 months imprisonment on Count
One of the Indictment. Count One charged the defendant with
conspiring to possess with the intent to distribute and
distributing 500 grams or more of a substance containing
methamphetamine, in violation of 21 U.S.C. §§
§ 2255 motion, the defendant contends that her counsel
was ineffective in several ways. In Ground One, she asserts
that her counsel was ineffective for “failing to
adequately seek a downward departure for mental and emotional
conditions pursuant to [U.S. Sentencing Guidelines Manual
(“USSG”) §] 5H1:3.” 2255 Mot. 5, ECF
No. 693. In Ground Two, she claims her counsel was
ineffective “for failing to argue the actual weight
that the movant was responsable [sic] for and to the purity
of the substance.” Id. at 6. In Ground Three,
Bilyeu asserts that her counsel was ineffective “when
he didn't review the Pre sentencing report himself or
with the Movant.” Id. at 7. In Ground Four,
she argues that her counsel was ineffective “when he
failed to argue the upward variance for recruiter. There was
no proof Movant was a recruiter [and] she was incarcerated
for nine months of the conspiracy.” Id. at 9.
state a viable claim for relief under § 2255, a
defendant must prove: (1) that her 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).
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.
defendant who has pleaded guilty must demonstrate that, but
for counsel's alleged error, there is a reasonable
probability that she 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. Absent
extraordinary circumstances, “allegations in a §
2255 motion that directly contradict the petitioner's
sworn statements made during a properly conducted Rule 11
colloquy are always palpably incredible and patently
frivolous or false.” United States v.
Lemaster, 403 F.3d 216, 221 (4th Cir. 2005) (internal
quotation marks omitted).
One of Bilyeu's 2255 motion must be dismissed because the
record clearly reveals that her counsel did seek a downward
departure on account of her history of mental health problems
and her traumatic childhood. Bilyeu's attorney stressed
these factors both in a sentencing memorandum, ECF No. 495,
and orally during the sentencing hearing. Sent. Hr'g Tr.
9-10, ECF No. 717. Bilyeu therefore cannot show that her
counsel made any unprofessional error in this regard.
stating the reasons for her sentence, I noted that “Ms.
Bilyeu has had a very difficult childhood. Things happened to
her that were very damaging.” Id. at 13. I
further stated, “There's no question that Ms.
Bilyeu has had a terrible past life by any standards. . .
§ 5H1.3 provides that “[m]ental and emotional
conditions may be relevant in determining whether a departure
is warranted, if such conditions, individually or in
combination with other offender characteristics, are present
to an unusual degree and distinguish the case from the
typical cases covered by the guidelines.” The
sentencing guidelines, of course, are not mandatory.
United States v. Booker, 543 U.S. 220, 245 (2005).
Bilyeu's case, I considered all the relevant factors,
including her mental and emotional conditions and her
troubled past. I concluded, however, that a downward
departure was not warranted on this ground because the
sentence I imposed, at the low end of the Guidelines range,
appropriately reflected the seriousness of her crime, would
protect the public from further crimes of the defendant, and
would provide adequate deterrence. Bilyeu therefore has not
shown, and cannot show, prejudice as required by
Strickland. Accordingly, I will grant the
government's Motion to Dismiss as to Ground One.
Ground Two, Bilyeu faults her attorney for not contesting the
weight and purity of the methamphetamine for which she was
held responsible at sentencing. The problem with this
argument is that Bilyeu stipulated to the weight and purity
in her plea agreement. She acknowledged this at her guilty
plea hearing. The prosecutor stated, “Ms. Bilyeu, you
have also agreed that your base offense level is 36, and that
your offense involved at least 1.5 kilograms of ICE.”
Change of Plea Hr'g Tr. 16. I then asked, “are
those terms just recited by Mr. Lee included in your plea
agreement as you understand it?” Id. at 18.
Bilyeu replied, “Yes, sir.” Id. Because
of her admission under oath and her stipulation in the plea
agreement, Bilyeu cannot show that her counsel's later
failure to challenge the weight and purity of the
methamphetamine was an unprofessional error.
appears to be under the mistaken belief that she can only be
held responsible for the amount of methamphetamine that was
found in her immediate possession when she was arrested. In
her response to the government's Motion to Dismiss, she
asserts that she was only apprehended with 31 grams of weak
methamphetamine. Mot. Opp'n 2, ECF No. 743. But Bilyeu
was not convicted of possession of methamphetamine. Rather,
she pled guilty to and was convicted of conspiring to possess
with the intent to distribute and distributing 500 grams or
more of a substance containing methamphetamine. She can
therefore be held responsible for criminal activity she