Brown v. United States

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA

UNITED STATES OF AMERICA, )

)

Plaintiff, )

)

v. ) CR-20-134-R

)

SHANE DEWYANE BROWN, )

)

Defendant. )

ORDER

Before the Court is the Motion to Vacate, Set Aside, or Correct Sentence filed by

Defendant pursuant to 28 U.S.C. § 2255 following his guilty plea to a single count of

possession of methamphetamine with intent to distribute in violation of 21 U.S.C.

§ 841(a)(1).1 The Government responded to the Petition (Doc. No. 99). On January 9,

2023, the Court ordered Defendant Brown to provide an affidavit in support of Ground

Three of the initial motion. (Doc. No. 100). He has not done so in the time limits prescribed

by that Order; the Court moves to consideration of Defendant’s claims.

In Ground One of the July 7, 2022, filing Defendant argued that he was denied the

effective assistance of counsel during the plea stage, resulting in an involuntary and

unknowing guilty plea.2 As a sub-part of Ground One he asserts that the Government

1 Defendant filed an initial motion on July 7, 2022 and sought leave to file his brief in support within 90 days. The

Court granted leave, and in addition to seeking to support some of his original issues Defendant added additional

issues. The filings (Doc. Nos. 87 and 93) will be construed as a single motion.

2 The Government has construed each of Defendant’s claims as challenging counsel’s performance in light of the fact

that Defendant did not file an appeal and further that he waived his right to challenge the plea and sentencing other

than on the issue of the ineffective assistance of counsel. The Court concurs with this approach and notes that the

familiar two-prong test of Strickland v. Washington, 466 U.S. 668 (1985), which requires deficient performance and

prejudice, applies.

violated the terms and conditions of the plea agreement, but does not specify how they did

so. In Ground One of the Amended Motion he asserts that the guidelines to which he agreed

were changed the day of sentencing and that he would not have pled guilty to the guidelines

enforced against him. The Court finds no basis in either version of Ground One to find that

counsel was ineffective or to otherwise grant the instant motion.

In the Plea Agreement the parties stipulated that Defendant’s relevant conduct was

possession of 1.5 kilograms or more of methamphetamine, but less than 5 kilograms, noting

a base level offense of 32. (Doc. No. 55, pp. 5-6). He agreed that the maximum term of

imprisonment was life, and the minimum ten years. (Id. p. 2). The base level 32 was the

starting point for the calculation of the sentence. The offense level was increased by four

points for two different enhancements and reduced by three points for acceptance of

responsibility, for a final offense level of 333. With his criminal history the advisory

guideline range was 235-293 months. The Court imposed a sentence of 235 months after

adopting the base level offense agreed upon by the Government and the Defendant. Simply

stated, without additional argument from Defendant the Court finds no basis for concluding

that the Government violated the plea agreement or that Defendant was not sentenced in

accordance with the agreement or the stipulation. Additionally, there is no basis in the

motion for concluding that counsel was ineffective at the plea stage, Defendant having

agreed under oath during his plea hearing that he was satisfied with counsel’s performance.

(Doc. No. 97, p. 10).

3 The Final Presentence Investigation Report started with a higher base level offense, but the Court adopted the agreed-

upon offense level (Doc. No. 98, p.6)

In Ground Two of his initial motion Defendant argued that he was denied the

effective assistance of counsel at sentencing, which resulted in misapplication of the

sentencing guidelines as to the firearms enhancement and as to the type and quantity of

drug for which he was held accountable. In Ground Two of the Amended Motion, he makes

a related argument, asserting that he was held responsible for 7000 grams although the

police recovered only 700 grams. In the initial motion he further alleges that counsel should

have sought to withdraw his plea at sentencing when the Government violated the terms of

the agreement, again without elaboration as to how the agreement was violated.4

Again, generally speaking, Defendant’s arguments are not sufficiently developed so

as to support a finding that counsel’s performance was deficient. To the extent the

arguments can be addressed directly, e.g., the firearm enhancement claim, counsel

originally filed an objection to the Presentence Investigation Report but withdrew the

objection at the sentencing hearing. The U.S.S.G. § 2D1.1(b)(1) two-point enhancement

for possession of a dangerous weapon, to wit, numerous firearms, was consistent with the

Court’s admonition to the Defendant during his plea colloquy that “uncharged related

criminal activities, if proved by a preponderance of the evidence,” could be considered at

sentencing. (Doc. No. 97, p. 7); see also United States v. Burridge, 191 F.3d 1297, 1304

(10th Cir. 1999)(“It is well established that sentencing calculations can include as relevant

conduct actions that do not lead to separate convictions.”). Defendant affirmed that he

understood. Id. As to the quantity of drug, Defendant stipulated to the amount and, although

4 The Presentence Investigation Report utilized an initial offense level of 34 based on a higher quantity of drugs. The

Court rejected that level and accepted the parties’ stipulation as set forth in the Plea Agreement, which was signed by

Defendant.

the Final Presentence Report attempted to hold him accountable for a greater quantity, the

base level offense of 34 based on 17,290.204 kilograms of converted drug weight, the Court

accepted the stipulation, consistent with defense counsel’s objection to the Presentence

Investigation Report. Furthermore, according to the Final Presentence Report, when

Defendant was arrested on the instant charge he attempted to elude officers and during the

pursuit dumped methamphetamine out of his vehicle. While retracing the route of the chase

officers found more than a kilogram of methamphetamine. Defendant’s source for the

methamphetamine advised law enforcement that she had delivered six kilograms of

methamphetamine to him. Because Defendant could be held accountable for a larger

quantity of drug than the amount found as relevant conduct, as set forth above, and in light

of his admissions during his plea colloquy, the Court finds no basis for concluding that

counsel was ineffective in failing to address the drug quantity in any additional manner.

None of the arguments presented in Ground Two of either the original or the amended

motion provides a basis for granting Defendant’s § 2255 motion.

In Ground Three of his initial motion, which the Court addressed in its prior Order,

Defendant simply alleges he “was denied effective Counsel when Counsel failed to file a

direct appeal at Defendant’s request.” Doc. No. 87 at p. 3. The Government responded with

an affidavit from counsel wherein he represented that Defendant never requested that he

pursue an appeal. Counsel further represented that although Defendant’s sister contacted

him about pursuing an appeal, she did so long after the time for appeal had passed. The

Government further argued that counsel’s affidavit was the only evidence regarding the

issue and therefore the motion may be denied without an evidentiary hearing. The Court,

noting Defendant’s affirmation with regard to his motion, ordered Defendant to file “a

sworn statement under penalty of perjury setting forth the factual details in support of his

claim that he requested his counsel to file a notice of appeal, including but not limited to

the time, place, and manner of any discussion(s) or communication(s) between himself and

counsel, the details of their discussion(s) or communication(s), and ‘any other detail which

would lend the requisite specificity or credibility to this allegation.’ United States v. Lester,

No. 09-40074-SAC, 2011 WL 3489994, at *7 (D. Kan. Aug. 10, 2011).” (Doc. No. 100, p. 3).

Because Defendant failed to comply with the Court’s Order and in light of the specific

information provided by defense counsel, the Court finds no basis for an evidentiary

hearing or for granting Defendant’s § 2255 motion with regard to Ground Three. See

Machibroda v. United States, 368 U.S. 487, 495 (1962)(district court has discretion to

exercise common sense in the development of the record and a full hearing is not always

necessary).

Rule 11 of the Rules Governing Section 2255 Proceedings instructs that “[t]he

district court must issue or deny a certificate of appealability when it enters a final order

adverse to the applicant.” Pursuant to 28 U.S.C. § 2253, the court may issue a certificate

of appealability “only if the applicant has made a substantial showing of the denial of a

constitutional right,” and the court “indicates which specific issue or issues satisfy [that]

showing.” A defendant can satisfy that standard by demonstrating that the issues raised are

debatable among jurists, that a court could resolve the issues differently, or that the

questions deserve further proceedings. Slack v. McDaniel, 529 U.S. 473 (2000) (citing

Barefoot v. Estelle, 463 U.S. 880, 893 (1983)).

After considering the record in this case, the Court concludes that a certificate of

appealability should not issue as defendant has not made a substantial showing of the denial

of a constitutional right. The record is devoid of any authority suggesting that the Tenth

Circuit would resolve the issues in this case differently.

For the reasons set forth herein, Defendant’s Motion to Vacate (Doc. No. 87) and

his Amended Motion to Vacate (Doc. No. 93) are hereby DENIED.

IT IS SO ORDERED this 22™ day of February 2023.

UNITED STATES DISTRICT JUDGE