ABREU v. United States

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

:

JESUS ABREU, :

: Civil Action No. 23-10 (SRC)

Petitioner, :

:

v. : OPINION

:

UNITED STATES OF AMERICA, :

:

Respondent. :

:

CHESLER, District Judge:

Presently before the Court is Petitioner Jesus Abreu’s motion to vacate his sentence brought

pursuant to 28 U.S.C. § 2255. (ECF Nos. 1.) The Government filed a response to the motion

(ECF No. 4), to which Petitioner replied. (ECF No. 10.) For the following reasons, Petitioner’s

motion is denied and Petitioner is denied a certificate of appealability.

I. BACKGROUND

On March 8, 2022, Petitioner pled guilty to a one count indictment charging him with being

a felon illegally in possession of a weapon in violation of 18 U.S.C. § 922(g)(1). (Docket No. 20-

580 at ECF No. 42.) That charge arose out of an incident which occurred on January 23, 2020.

(PSR at ¶ 10.) On that date, Newark Police officers in a marked patrol vehicle observed Petitioner

conduct a narcotics transaction while sitting in the passenger seat of a silver sedan. (Id. at ¶ 11.)

The officers activated their lights, at which point the sedan sped away, with the chase only

concluding when the sedan lost a tire and was forced to stop. (Id. at ¶ 12.) Petitioner fled from

the vehicle and ran through a park, dropping a number of items including suspected narcotics and

a Cobra FS380 pistol with a defaced serial number. (Id. at ¶ 12-13.) As Petitioner had previously

been convicted of several felonies, including unlawful possession of a weapon, aggravated assault,

and possession with intent to distribute a controlled substance, Petitioner was charged with being

a felon in possession of a firearm. (Id. at ¶ 1, 15-17.) As part of the plea agreement through

which he pled guilty, Petitioner stipulated that he had previously been convicted of felonies that

Petitioner knew carried sentences in excess of one year, and that his current firearm possession

was in connection with Petitioner’s possession with the intent to distribute cocaine. (Docket No.

20-580 at ECF No. 44.)

Petitioner appeared for sentencing on July 27, 2022. (Docket No. 20-580 at ECF No. 48.)

In preparation for that sentencing, Probation prepared a presentence report which included a

proposed guidelines calculation. In its calculation, Probation determined that Petitioner’s base

offense level was 24 pursuant to U.S.S.G. § 2K2.1 as Petitioner had previously been convicted of

both a crime of violence (aggravated assault with a firearm) and a controlled substance offense.

(PSR at ¶ 24.) Probation also recommended a four level enhancement pursuant to U.S.S.G. §

2K2.1(b)(4)(B) as the firearm in question had an obliterated serial number, and a four level

enhancement under U.S.S.G. 2K2.1(b)(6)(B) because the firearm was possessed in connection

with drug distribution. (Id. at ¶ 25-26.) Coupled with a three level reduction for acceptance of

responsibility, this resulted in a total offense level of 29 and a recommended sentencing range of

121 to 151 months imprisonment in light of Petitioner’s criminal history, reduced to 120 months

in light of the statutory maximum sentence of ten years. (Id. at ¶ 86.)

At sentencing, Petitioner’s attorney did not object to this calculation. (Docket No. 20-580

at ECF No. 50 at 4, 10-11.) While Petitioner himself sought to take issue at sentencing with the

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two four level enhancements, he acknowledged that the firearm he possessed had an obliterated

serial number. (Id. at 12-13.) Although Petitioner’s attorney did not challenge the guidelines

calculation contained in the PSR and did not join in Petitioner’s attempt to rehash that calculation

at sentencing, Petitioner’s counsel did make an extensive argument for a downward variance on

Petitioner’s behalf. (Id. at 5-10.) This Court ultimately accepted the guidelines calculation

contained in the PSR, but, in light of counsel’s thorough argument on Petitioner’s behalf ultimately

granted a variance from that range and sentenced Petitioner to seventy-two months’ imprisonment.

(Id. at 20-27.) Petitioner did not appeal, and instead filed his current motion to vacate sentence

in January 2023. (ECF No. 1.)

II. DISCUSSION

A. Legal Standard

A prisoner in federal custody may file a motion pursuant to 28 U.S.C. § 2255 challenging

the validity of his or her sentence. Section 2255 provides, in relevant part, as follows:

A prisoner in custody under sentence of a court established by Act

of Congress claiming the right to be released upon the ground that

the sentence was imposed in violation of the Constitution or laws of

the United States, or that the court was without jurisdiction to

impose such a sentence, or that the sentence was in excess of the

maximum authorized by law, or is otherwise subject to collateral

attack, may move the court which imposed the sentence to vacate,

set aside or correct the sentence.

28 U.S.C. § 2255. Unless the moving party claims a jurisdictional defect or a constitutional

violation, to be entitled to relief the moving party must show that an error of law or fact constitutes

“a fundamental defect which inherently results in a complete miscarriage of justice, [or] an

omission inconsistent with the rudimentary demands of fair procedure.” United States v. Horsley,

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599 F.2d 1265, 1268 (3d Cir. 1979) (quoting Hill v. United States, 368 U.S. 424, 429 (1962)), cert.

denied 444 U.S. 865 (1979); see also Morelli v. United States, 285 F. Supp. 2d 454, 458-59 (D.N.J.

2003).

B. Analysis

1. An evidentiary hearing is not required to resolve Petitioner’s motion

A district court need not hold an evidentary hearing on a motion to vacate where “the

motion and files and records of the case conclusively show that the prisoner is entitled to no relief.”

28 U.S.C. § 2255(b); United States v. Booth, 432 F.3d 542, 545 (3d Cir. 2005); United States v.

Day, 969 F.2d 39, 41-42 (3d Cir. 1992). “Where the record, supplemented by the trial judge's

personal knowledge, conclusively negates the factual predicates asserted by the petitioner or

indicate[s] that petitioner is not entitled to relief as a matter of law, no hearing is required.” Judge

v. United States, 119 F. Supp. 3d 270, 280 (D.N.J. 2015); see also Government of Virgin Islands

v. Nicholas, 759 F.2d 1073, 1075 (3d Cir. 1985); see also United States v. Tuyen Quang Pham,

587 F. App’x 6, 8 (3d Cir. 2014); Booth, 432 F.3d at 546. Because Petitioner’s claims are clearly

without merit for the reasons set forth below, no evidentiary hearing is required in this matter.

2. Petitioner’s ineffective assistance of counsel claims

In his motion to vacate sentence Petitioner presents several claims, all of which assert

ineffective assistance of counsel during sentencing. The standard applicable to such claims is

well established:

[c]laims of ineffective assistance are governed by the two-prong test

set forth in the Supreme Court’s opinion in Strickland v.

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Washington, 466 U.S. 668 (1984). To make out such a claim under

Strickland, a petitioner must first show that “counsel’s performance

was deficient. This requires [the petitioner to show] that counsel

made errors so serious that counsel was not functioning as the

‘counsel’ guaranteed by the Sixth Amendment.” Id. at 687; see

also United States v. Shedrick, 493 F.3d 292, 299 (3d Cir. 2007).

To succeed on an ineffective assistance claim, a petitioner must also

show that counsel’s allegedly deficient performance prejudiced his

defense such that the petitioner was “deprive[d] of a fair trial . . .

whose result is reliable.” Strickland, 466 U.S. at 687; Shedrick,

493 F.3d at 299.

In evaluating whether counsel was deficient, the “proper

standard for attorney performance is that of ‘reasonably effective

assistance.’” Jacobs v. Horn, 395 F.3d 92, 102 (3d Cir. 2005). A

petitioner asserting ineffective assistance must therefore show that

counsel’s representation “fell below an objective standard of

reasonableness” under the circumstances. Id. The reasonableness

of counsel’s representation must be determined based on the

particular facts of a petitioner’s case, viewed as of the time of the

challenged conduct of counsel. Id. In scrutinizing counsel’s

performance, courts “must be highly deferential . . . a court must

indulge a strong presumption that counsel’s conduct falls within the

wide range of reasonable professional assistance.” Strickland, 466

U.S. at 689.

Even where a petitioner is able to show that counsel’s

representation was deficient, he must still affirmatively demonstrate

that counsel’s deficient performance prejudiced the petitioner’s

defense. Id. at 692-93. “It is not enough for the defendant to show

that the errors had some conceivable effect on the outcome of the

proceeding.” Id. at 693. The petitioner must demonstrate that

“there is a reasonable probability, but for counsel’s unprofessional

errors, the result of the proceeding would have been different. A

reasonable probability is a probability sufficient to undermine

confidence in the outcome.” Id. at 694; see also Shedrick, 493 F.3d

at 299. Where a “petition contains no factual matter regarding

Strickland’s prejudice prong, and [only provides] . . . unadorned

legal conclusion[s] . . . without supporting factual allegations,” that

petition is insufficient to warrant an evidentiary hearing, and the

petitioner has not shown his entitlement to habeas relief. See

Palmer v. Hendricks, 592 F.3d 386, 395 (3d Cir. 2010). “Because

failure to satisfy either prong defeats an ineffective assistance claim,

and because it is preferable to avoid passing judgment on counsel’s

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performance when possible, [Strickland, 466 U.S. at 697-98],”

courts should address the prejudice prong first where it is dispositive

of a petitioner’s claims. United States v. Cross, 308 F.3d 308, 315

(3d Cir. 2002).

Judge, 119 F. Supp. 3d at 280-81.

Petitioner first argues that counsel should have challenged his base offense level under

guideline section 2K2.1(a)(2) as he believes that his aggravated assault conviction should no

longer qualify as a crime of violence sufficient to support his recommended base offense level,

relying on Borden v. United States, 593 U.S. ---, 141 S. Ct. 1817 (2021), and United States v.

McCormack, 852 F. App’x 76 (3d Cir. 2021). Petitioner’s underlying conviction in question was

a violation of N.J. Stat. Ann. § 2C:12-1(b)(4), which criminalizes “[k]nowingly under

circumstances manifesting extreme indifference to the value of human life” pointing a firearm at

another. To qualify as a crime of violence, this crime would have to have as an element the use,

attempted use, or threatened use of physical force against the person of another. United States.

Abdullah, 905 F.3d 739, 746-47 (3d Cir. 2018). In dealing with a related subsection of the same

statute, the Third Circuit in Abdullah explained that it is essentially impossible to imagine a set of

facts in which one could threaten another with the use of a deadly weapon without engaging in a

use of force sufficient to meet the definition of a crime of violence. Id. at 749. This is exactly

what Petitioner’s underlying conviction requires – that he knowingly point a firearm – a deadly

weapon – at the person of another in such a fashion that it indicates extreme indifference to the

value of human life. Petitioner’s underlying crime thus clearly qualifies as a crime of violence

under the sentencing guidelines. Id.

Neither Borden nor McCormack alters this conclusion. While the Supreme Court in

Borden held that, for the purposes of the Armed Career Criminal Act’s similar definition for a

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crime of violence, a statute requiring a mens rea of ordinary recklessness cannot meet the elements

clause requirement of an element requiring the use, attempted use, or threatened use of force, the

Court expressly declined to address statutes criminalizing more extreme forms of recklessness

such as New Jersey’s depraved indifference to human life standard. Borden, 141 S. Ct. at 1825

n. 4. Borden is thus of at best limited relevance to Petitioner’s criminal conduct, which required

that he knowingly point a firearm at another, threatening a use of force, under circumstances

manifesting depraved indifference to human life. Id. Petitioner’s conviction remains a crime of

violence after Borden, and any motion by counsel premised on Borden would have been without

merit. See United States v. Williams, No. 19-134, 2022 WL 2209868, at *1-6 (D.N.J. June 21,

2022) (violation of N.J. Stat. Ann. § 2C12-1(b)(4) qualifies as a crime of violence post-Borden).

Counsel therefore cannot have been ineffective in failing to raise a motion based on Borden. See

Werts v. Vaughn, 228 F.3d 178, 203 (3d Cir. 2000) (counsel cannot be ineffective in failing to file

a meritless motion); United States v. Aldea, 450 F. App’x 151, 152 (3d Cir. 2011) (same).

Petitioner’s argument premised on McCormack fares no better. Even putting aside the

non-precedential status of McCormack, the Third Circuit in that case overturned a defendant’s

sentence on direct appeal as the record made it unclear whether the sentencing court had ever

actually addressed the defendant’s objection to his guidelines calculation as the district court judge

had referenced an entirely different guidelines section and made it unclear at best whether the

objection had been resolved. See 852 F. App’x at 78-80. That is not the case here, and

McCormack appears to be completely irrelevant to Petitioner’s own case. Any motion premised

on that case would have been meritless, and serves as no basis for finding counsel ineffective.

Werts, 228 F.3d at 203; Aldea 450 F. App’x at 152.

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In his remaining claims, Petitioner asserts that counsel was ineffective in failing to

challenge his two guidelines enhancements for a defaced serial number and possessing a weapon

in relation to drug trafficking based on United States v. Davis, 43 F.4th 683 (7th Cir. 2022); United

States v. Bolden, 964 F.3d 283 (4th Cir. 2020); and United States v. Cason, No. 19-4140, 2022

WL 4481686 (6th Cir. 2022). Petitioner does not clarify what argument he wishes counsel had

made based on these cases, nor does he present any real argument of his own. None of these

cases, however, would have provided a valid basis for challenging Petitioner’s sentencing

enhancements.

In Davis, the Seventh Circuit reversed a sentencing in which a trial judge had accepted

Probation’s finding of insufficient support for a sentencing enhancement for using a firearm in

connection with a shootout but then made a finding that the defendant had intentionally involved

himself in the shooting in question, creating an at best conflicting record which had to be resolved

on remand. See 43 F.4th at 687-88. Petitioner’s enhancements suffer from no such issue –

Petitioner specifically stipulated that he possessed his firearm in connection with drug distribution,

and that concession is well supported by the evidence discovered at the scene of his arrest which

included not only the illegally possessed firearm but also controlled substances. (See ECF No. 4-

1 at 1-8.) No contradiction of the sort found in Davis is present in this case, and any objection

premised on Davis would have been without merit. Counsel was not ineffective for failing to

object on this basis. Werts, 228 F.3d at 203; Aldea 450 F. App’x at 152.

Bolden likewise does not provide a clear basis for an objection to Petitioner’s sentence. In

that case, the Fourth Circuit found on direct appeal that a sentencing judge had committed

reversible error when, after agreeing with a criminal defendant that there was no evidence to

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support finding that he possessed the requisite intent to commit kidnapping sufficient to render his

possession of a weapon in relation to a kidnapping, the trial court had “sua sponte ruled” that it

would apply the same enhancement by finding the possession to be in relation to drug possession

without explaining the factual basis for that finding. 964 F.3d at 287-89. No such issue is present

in Petitioner’s case – the record well supports both the obliterated serial number and drug

possession connection – indeed, Petitioner admitted to the damaged serial number at sentencing

and stipulated that he possessed the firearm in relation to drug possession with intent to distribute

in his plea agreement. The basis for Petitioner’s enhancements was clear from Petitioner’s own

admissions and stipulations, and Bolden thus serves as no basis for an objection to Petitioner’s

sentence. Counsel was therefore not ineffective in failing to object on this basis. Werts, 228

F.3d at 203; Aldea 450 F. App’x at 152.

Finally, Petitioner contends that counsel should have objected based on the Sixth Circuit’s

unpublished decision in Cason. Putting aside the non-precedential value of an out of circuit,

unpublished decision, in that case the Sixth Circuit overturned a sentencing in which the trial judge

had sentenced the defendant above the statutory maximum for the separate crime of transporting,

shipping, or receiving a firearm with an obliterated serial number in violation of 18 U.S.C. §

922(k). 2022 WL 4481686 at *2-3. Petitioner was not charged with that offense, and was clearly

not sentenced above the statutory maximum in this case. Cason thus provides no basis for a

challenge to Petitioner’s sentence, and counsel was not ineffective in failing to raise an objection

on this basis. Werts, 228 F.3d at 203; Aldea 450 F. App’x at 152. As all of Petitioner’s claims

are clearly without merit, Petitioner’s motion to vacate sentence is denied.

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III. CERTIFICATE OF APPEALABILITY

Pursuant to 28 U.S.C. § 2253(c), the petitioner in a § 2255 proceeding may not appeal from

the final order in that proceeding unless he makes “a substantial showing of the denial of a

constitutional right.” “A petitioner satisfies this standard by demonstrating that jurists of reason

could disagree with the district court’s resolution of his constitutional claims or that jurists could

conclude that the issues presented here are adequate to deserve encouragement to proceed further.”

Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). As Petitioner’s claims are all clearly without

merit and thus are not adequate to deserve encouragement to proceed further, Petitioner is denied

a certificate of appealability.

IV. CONCLUSION

For the reasons stated above, Petitioner’s motion to vacate sentence (ECF No. 1) is

DENIED, and Petitioner is DENIED a certificate of appealability. An appropriate order follows.

___s/ Stanley R. Chesler______

Hon. Stanley R. Chesler,

United States District Judge

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