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United States v. Newell

United States District Court, D. North Dakota

November 22, 2017

United States of America, Plaintiff/Respondent,
Gregory Wayne Newell, Defendant/Petitioner.


          Ralph R. Erickson, Circuit Judge.

         Introduction and Summary of Decision

         Before the court is Gregory Wayne Newell's Motion to Vacate or Correct Sentence under 28 U.S.C. § 2255.[1] Newell raises a claim of ineffective assistance of counsel on four grounds and asks that the court re-sentence him to 109 months, a length of sentence he claims would have been imposed in the absence of his counsel's allegedly deficient performance. Because he has failed to show that counsel's performance was deficient and that he suffered prejudice as a result, Newell's § 2255 motion is DENIED and the action is DISMISSED.

         Procedural Background

         On May 19, 2014, Newell pled guilty to a single-count Superseding Indictment that charged him with Conspiracy to Possess with Intent to Distribute and Distribute a Controlled Substance, in violation of 21 U.S.C. §§ 841(a)(1) and 846 as well as aiding and abetting under 18 U.S.C. § 2.[2] Newell's plea was entered pursuant to a plea agreement the assistant Federal Public Defender negotiated with the United States.[3] Pursuant to the terms of the agreement, the parties agreed to a base offense level of 36 consistent with a factual stipulation that it was “reasonably foreseeable that the conspiracy involved at least 5 KG but less than 15 KG methamphetamine.”[4] The United States reserved the right to argue a higher offense level at sentencing if the pre-sentence investigation determined that Newell qualified as a “career offender” pursuant to USSG § 4B1.1.[5] The plea agreement did not contain any requirement that Newell cooperate or a promise by the DOJ to file a motion for a downward departure based on USSG § 5K1.1.[6]

         On June 10, 2014, the court sentenced Newell to 156 months incarceration to run consecutively to a sentence imposed by the United States District Court for the District of South Dakota for Passing Counterfeit Securities.[7] In calculating the Guideline range, the court found that Newell had a total of 12 criminal history points and placed him in criminal history category V.[8] Three of the points came from Newell's District of South Dakota conviction.[9]

         On June 26, 2014, the court vacated the judgment because the government had inadvertently failed to disclose a written report of co-defendant Kristina Larae Erickson's debriefing prior to Newell's sentencing.[10] On July 8, 2014, the court re-sentenced Newell to an identical 156-month consecutive sentence.[11]


         Newell brings this § 2255 Motion asserting ineffective assistance of counsel based on four theories: (1) the Federal Public Defender failed to argue and present evidence that his District of South Dakota conviction resulted from activity that was relevant conduct in this drug conspiracy; (2) his lawyer coerced him into signing the plea agreement by falsely informing him if he did not sign the agreement, the government would seek a two-level aggravating role increase under § 3B1.1 of the Sentencing Guidelines and would argue that he was a career offender; (3) his attorney failed to dispute the amount of drugs attributed to him; and (4) his attorney's actions precluded him from receiving a departure for substantial assistance under § 5K1.1.

         Ineffective assistance of counsel claims are reviewed under the familiar two-prong test from Strickland v. Washington.[12] In order to obtain relief, the defendant must prove both (1) that his attorney's performance was deficient and (2) that the deficient performance prejudiced his defense.[13] The burden of showing ineffective assistance of counsel belongs to the defendant.[14] When the defendant asserts multiple deficiencies in counsel's performance, each claim is reviewed independently.[15] There is no “cumulative error” rule applied to ineffective assistance of counsel.[16] Whenever a court is called upon to scrutinize counsel's performance, the court is required to be “highly deferential.”[17]

         Under the performance prong, the defendant must show that counsel “made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment.”[18] There is a strong presumption that counsel was operating within the broad range of professional assistance.[19] Moreover, it is inappropriate to apply the benefits of hindsight or “second guessing.”[20] When considering alleged errors by counsel, the standard is one of objective “reasonableness under prevailing professional norms.”[21] The burden placed on the defendant in establishing ineffective assistance of counsel is a “heavy burden.”[22]

         Even if the defendant is able to establish deficient performance, he must still establish prejudice.[23] Error alone is insufficient to establish prejudice, and even an error that had “some conceivable effect on the outcome” will not suffice.[24] Rather, the defendant must show a reasonable probability that the results would have been different.[25] This burden has been described as showing a “probability sufficient to undermine confidence in the outcome.”[26]

         I. District of South Dakota Conviction

         Newell first asserts that his attorney failed to argue and present evidence that his District of South Dakota conviction for Passing Counterfeit Securities constituted relevant conduct in this conspiracy because he counterfeited the traveler's checks to raise money to purchase drugs. Newell further contends that because the conduct was simultaneous and connected, his sentences should have been concurrent rather than consecutive. He also argues that because the South Dakota conduct qualified as relevant conduct for purposes of calculating criminal history, the court erred when it placed him in criminal history category V rather than category IV.

         Newell's claim is unsupported and contradicted in the record. At Newell's original sentencing, his counsel made two arguments why the sentences were more properly concurrent:

The first thing is that both of these offenses come from the same root cause. Both of these offenses were offenses that were committed by a drug addict who's trying to get money and drugs to support his drug habit. The second factor is that the counterfeiting offense could have been charged in North Dakota. Some of the traveler's checks were passed in North Dakota as well as South Dakota and Minnesota. If these cases had both been charged at the same time in the same document then the South Dakota case wouldn't even count.
The offense level in South Dakota, based on the South Dakota Presentence Investigation Report, was a total of eight. The offense level here is a total of 31. And based on I think it's 3D1.4 anything that's nine points or less - or more less than the highest offense level isn't even counted when sentencing. So if it was just charged in one place he would have a lower criminal history and he wouldn't have the additional sentenced taxed on top of it. So actually I think the fact that it was charged in two separate cases even if he got a hundred percent concurrent sentence that would probably be fine because the sentence in South Dakota was longer than it needed to be - the sentence here is longer than it needs to be based on the increased criminal history because of this South Dakota conviction.

         When pressed by the government to provide support for his theory, Newell's counsel provided the following evidence:

The only thing I want to add, Your Honor, is from paragraph 92 of the South Dakota Presentence Investigation Report in which the probation officer in South Dakota reported that Mr. Newell states that he got hooked on methamphetamine and needed to support his habit which contributed to his illegal behavior in the South Dakota case. That's really the only evidence that I have of a connection, but I think that it does indicate that there is some connection between the two offenses.

         At the time of sentencing, the court stated, “the court's of the opinion that the conduct seems pretty far afield and while his chemical dependency may have been a small factor in that criminal conduct, I think they're not related sufficiently.” Even after the court's original ruling, Newell's counsel unsuccessfully pressed the court to allow at least part of the sentence to run concurrently.

         The record clearly establishes that Newell's counsel forcefully argued and presented evidence that his counterfeiting activity was part of his involvement in this drug conspiracy. The court rejected these claims, finding that the counterfeiting was only tangentially related to his drug activity. Newell's counsel was not ineffective for failing to raise an issue he actually raised. Newell's first claim is DENIED.

         II. Voluntariness of Guilty Plea

         Newell next asserts that his counsel coerced him into entering into the plea agreement by incorrectly advising him that if he proceeded to trial, the government would seek an upward adjustment for aggravating role and/or argue that he qualified as a career offender. While a defendant may challenge the voluntariness of a guilty plea in a post-conviction proceeding, “the defendant's representations during the plea-taking carry a strong presumption of verity and pose a ‘formidable barrier in any subsequent collateral proceedings.'”[27] When a defendant enters a guilty plea upon the advice of counsel, “the voluntariness of the plea depends on whether counsel's advice was ‘within the range of competence demanded of attorneys in criminal cases.'”[28] To successfully attack the voluntary and knowing character of the guilty plea, the defendant must show that “the advice he received from counsel did not meet the McMann standard.”[29] To meet the prejudice prong of Strickland, the defendant must show that absent counsel's errors, “he would not have pleaded guilty and would have insisted on going to trial.”[30]

         At sentencing the court found that Newell's plea was freely and voluntarily made based on his representations during the change of plea hearing, and these representations bear a strong presumption of verity. Newell has not alleged any facts, even if fully credited, to overcome the presumption. The record makes plain that Newell's counsel provided advice and counsel consistent with the evidence known to him relating to the aggravating role adjustment, and that advice fell well within the range of competence demanded of criminal defense attorneys. It is worthy of note that the presentence investigating officer, after reviewing the evidence in the case, arrived at the conclusion that the two-level role in the offense adjustment applied to Newell. Certainly the government could have argued the same on the facts, and Newell's counsel was obligated to inform Newell of the possibility that the adjustment applied. Where facts existed for the government to make a colorable argument for the adjustment, counsel cannot have provided ineffective assistance of counsel by conveying that the government would seek the adjustment if Newell went to trial.

         A somewhat closer question is presented related to the Federal Public Defender's discussion of Newell's possible career offender status. While Newell had a substantial and troubling criminal history, it appears from the record that he did not meet the criteria for a career offender under USSG § 4B1.1. Assuming without deciding that his counsel should have realized that he was not a career offender and advised him that the government would ...

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