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United States v. Bilyeu

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

January 9, 2020

UNITED STATES OF AMERICA
v.
AMBER BILYEU, Defendant.

          Zachary T. Lee, Assistant United States Attorney, Abingdon, Virginia, for United States; Amber Bilyeu, Pro Se Defendant.

          OPINION

          JAMES P. JONES United States District Judge

         The 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.

         After 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. §§ 841(b)(1)(A), 846.

         In her § 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.

         To 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).

         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 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).

         Ground 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.

         In 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. . . .” Id.

         USSG § 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).

         In 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.

         In 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.

         Bilyeu 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 jointly ...


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