Dickerson v. United States

IN THE UNITED STATES DISTRICT COURT April 24, 2024

FOR THE SOUTHERN DISTRICT OF TEXAS Nathan Ochsner, Clerk

HOUSTON DIVISION

UNITED STATES OF AMERICA §

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v. § CRIMINAL ACTION NO. H-18-46-1

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§ CIVIL ACTION NO. H-23-3784

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CUNNIE RAY DICKERSON §

MEMORANDUM OPINION AND ORDER DENYING 28 U.S.C. § 2255 MOTION

Federal prisoner Cunnie Ray Dickerson, (BOP #34193-479), through counsel, filed a

motion to vacate, set aside, or correct a sentence under 28 U.S.C. § 2255, with a memorandum in

support of the motion. (Docket Entry Nos. 529, 530). The government filed a memorandum in

opposition, and Dickerson replied. (Docket Entry Nos. 535, 538). Based on the motion, the

response and reply, the record, and the applicable law, the court denies Dickerson’s motion. The

reasons are explained below.

I. Background

Dickerson was charged in a superseding indictment with one count of conspiracy to possess

with intent to distribute cocaine and four counts of possession with intent to distribute a controlled

substance, based on events that occurred between January 2014 and July 2017. (Docket Entry No.

108). On September 20, 2018, Dickerson pleaded guilty to the conspiracy count as part of a plea

agreement, in which the government agreed to dismiss the four possession charges. (Docket Entry

Nos. 168, 180).

In his plea agreement, Dickerson agreed that the government could prove that between

2014 and 2017, he conspired with his co-defendants to possess with intent to distribute at least 5

kilograms of cocaine. (Docket Entry No. 167, p. 9). The evidence would show that on July 12,

2017, co-defendants Antonio Ward, Terrance Jackson, and Jay Parks came to Dickerson’s house

to purchase cocaine. (Id. at 9). While they were there, two other co-defendants—Ernesto Martinez

and Eric Arauza—arrived in a separate vehicle. (Id.). Dickerson came outside, and Arauza handed

him a package. (Id.). Dickerson took the package inside while Arauza remained outside. (Id.).

A short time later, Dickerson came back outside and handed Arauza a duffle bag. (Id.). Shortly

thereafter, Ward, Jackson, and Parks left Dickerson’s house with a backpack. (Id. at 10). Law

enforcement stopped their car and recovered approximately 8 kilograms of cocaine. (Id.). Law

enforcement also stopped Martinez and Arauza and recovered $199,021.00 from the duffel bag,

later determined to be proceeds from the sale of the cocaine. (Id.). Further investigation showed

that during the conspiracy, Martinez regularly obtained cocaine from unindicted co-conspirators

in Mexico and delivered it to Arauza, who in turn delivered it to Dickerson. (Id.). Dickerson then

sold kilogram-quantities of cocaine to Jackson and Parks, as well as to a number of other co-

conspirators, who transported the cocaine to multiple states for further distribution. (Id.).

After Dickerson pleaded guilty, the court ordered the United States Probation Office to

prepare a Presentence Investigation Report (PSR) to assist the court with sentencing. (Docket

Entry No. 166). Dickerson’s PSR contains additional information about the facts underlying the

conspiracy, including that co-defendant Aubrey Canady had traveled from Jacksonville, Florida,

to Houston on at least three occasions to purchase cocaine from Dickerson. (Docket Entry No.

271, p. 6). Canady told investigators that he often worked with Christopher Robinson, who also

traveled to Texas to purchase cocaine from Dickerson to sell in Jacksonville. (Id.). Additional

information established that starting in mid-2016, Robinson made monthly kilogram-quantity

purchases of cocaine from Dickerson. (Id. at 7). Robinson told investigators that on at least two

occasions, Dickerson had a driver or courier deliver cocaine to Robinson in Mississippi. (Id. at 9-

10). Two other co-defendants, Dommonick Andrews and Devon Todd, purchased at least one

kilogram of cocaine from Dickerson in June 2017. (Id. at 7). Further investigation revealed that

Dickerson had been distributing large quantities of cocaine, usually multiple kilograms, from his

house since 2014. (Id. at 9-10). This included multiple sales to two other men—Curtis Dansby

and Gary Winn—who told investigators that they had purchased more than 100 kilograms of

cocaine from Dickerson over a two-year period. (Id. at 10).

In his own statements to law enforcement, Dickerson admitted that he had purchased large

quantities of marijuana and cocaine from Arauza for a number of years. (Id.) Dickerson also

admitted that since at least 2014, he had sold 50 to 60 kilograms of cocaine to individuals who

traveled to his house from Ohio, Florida, and Arkansas. (Id. at 10-11).

Based on these facts, the PSR held Dickerson accountable for 101 kilograms of cocaine,

which placed his base offense level at 34. (Id. at 13). The PSR recommended that Dickerson be

considered a leader or organizer of the criminal activity, and it included a 4-level enhancement

under United States Sentencing Guidelines § 3B1.1(a) based on that role. (Id. at 12-13). The PSR

also included a 2-level enhancement under U.S.S.G. § 2D1.1(b)(12) for maintaining a “stash

house.” (Id. at 13). Dickerson received a 3-level decrease for acceptance of responsibility, which

resulted in a total offense level of 37. (Id. at 13-14). Based on this offense level and Dickerson’s

criminal history score, his advisory Guidelines sentencing range was 262 to 327 months in prison.

(Id. at 21). Dickerson filed no written objections to the PSR.

On October 31, 2022, Dickerson appeared for sentencing with counsel. Counsel initially

stated that she had no objections to the PSR, and the court adopted the PSR as prepared. (Docket

Entry No. 518, p. 3). The court noted that the government was requesting a below-Guidelines

sentence of 176 months, while Dickerson was requesting a sentence of 60 months. (Id. at 3-4). In

support of Dickerson’s request for a 60-month sentence, counsel argued that Dickerson had been

a model citizen while on pretrial release. (Id. at 4-5). Counsel also pointed out Dickerson’s

cooperation with the government. (Id. at 5-6). Counsel then argued that while she was not

“objecting formally to the [PSR],” she did dispute the characterization of Dickerson as a leader or

organizer and the resulting 4-level enhancement. (Id. at 6). Counsel contended that Dickerson

was, at most, only an intermediary between the supplier and his customers, which might result in

at most a 3-level enhancement as a manager or supervisor. (Id. at 6-7). Counsel also argued that

Dickerson’s house did not qualify as a “stash house” because it was not used primarily for storing

drugs. (Id. at 7). In addition, counsel argued that the government could account for only 16.88

kilograms of cocaine during the year Dickerson was under surveillance. Counsel asked the court

to consider sentencing Dickerson based on that amount rather than the full amount identified in

the PSR. (Id. at 7-8). Finally, counsel argued that Dickerson’s co-defendants had received

sentences of 84, 90, and 135 months and that the government’s proposed sentence for Dickerson

was disproportionate to his involvement in the offense and his role in the conspiracy. (Id.). The

court addressed this last argument, noting that Dickerson’s sentencing range was higher than

Arauza’s primarily because Arauza did not receive enhancements for his role in the conspiracy or

maintaining a stash house. (Id. at 9-10). Finally, trial counsel noted that while the statutory

mandatory minimum sentence was 120 months, she believed that the totality of the facts warranted

a lower sentence. (Id. at 10).

In response, the government argued that while Dickerson was not the only leader of the

conspiracy, he was certainly one of the leaders. (Id. at 12). The government pointed out that

Dickerson had customers all over the country, he had discretion on what he would charge them for

the cocaine, and he had drivers who had delivered drugs for him on at least two occasions. (Id. at

13). The government also defended the “stash house” enhancement, noting that premises need not

be kept solely to store drugs to qualify as a “stash house.” (Id.). The government pointed out that

during the length of the conspiracy, Dickerson “regularly conducted cocaine transactions at that

residence.” (Id. at 14). In addition, when agents executed a search warrant on Dickerson’s house,

they found drug wrappers, drug paraphernalia, drug ledgers, scales, and money counters—all

indicators of a large-scale cocaine-trafficking conspiracy. (Id.). The government noted that

Dickerson had admitted in his plea agreement that he was accountable for more than 100 kilograms

of cocaine. (Id.). Based on this, the government requested a sentence of 176 months in prison.

(Id. at 12).

After hearing and considering these arguments, the court found that the 4-level

enhancement for being a leader or organizer and the 2-level enhancement for maintaining a stash

house were “appropriately imposed.” (Id. at 15). The court recognized that Dickerson had

cooperated with the government and had been a productive citizen while on pretrial release. (Id.).

After considering the sentencing requests made by both parties and the facts established in the plea

agreement and the PSR, the court sentenced Dickerson to 132 months in prison, followed by five

years of supervised release. (Id. at 15-16). Judgment was entered on November 4, 2022. (Docket

Entry No. 508).

On October 6, 2023, Dickerson filed his § 2255 motion, raising one claim of ineffective

assistance of trial counsel based on counsel’s failure to file a written objection to the 4-level

enhancement for his role as a leader or organizer. (Docket Entry No. 529). The government

responded, contending that Dickerson’s claim was not cognizable because it was an attack on the

Guidelines calculation rather than an ineffective-assistance-of-counsel claim. (Docket Entry No.

535, pp. 15-18). Alternatively, the government contended that the claim, if considered as one of

ineffective assistance of counsel, was without merit. (Id. at 18-35). Dickerson filed a timely reply.

(Docket Entry No. 538).

II. The Applicable Legal Standards

A. Motions under 28 U.S.C. § 2255

Postconviction relief under 28 U.S.C. § 2255 is limited to errors of constitutional

dimension that could not have been raised on direct appeal and that, if left unaddressed, would

result in a complete miscarriage of justice. See United States v. Cervantes, 132 F.3d 1106, 1109

(5th Cir. 1998); see also United States v. Rodriguez-Castro, 814 F. App’x 835, 837-38 (5th Cir.

2020) (per curiam). Because of these limitations, a federal defendant may move to vacate, set

aside, or correct his sentence under § 2255 only if: (1) the sentence was imposed in violation of

the Constitution or laws of the United States; (2) the court lacked jurisdiction to impose the

sentence; (3) the sentence imposed exceeds the statutory maximum; or (4) the sentence is

otherwise subject to collateral attack. 28 U.S.C. § 2255; United States v. Placente, 81 F.3d 555,

558 (5th Cir. 1996).

B. Evidentiary Hearing

A defendant seeking relief under § 2255 is entitled to an evidentiary hearing on his claims

“unless either (1) the movant’s claims are clearly frivolous or based upon unsupported

generalizations, or (2) the movant would not be entitled to relief as a matter of law, even if his

factual assertions were true.” United States v. Allen, 918 F.3d 457, 460 (5th Cir. 2019) (quoting

United States v. Harrison, 910 F.3d 824, 826-27 (5th Cir. 2018)). If the defendant fails to meet

his burden of proof at the pleadings stage, an evidentiary hearing is not necessary. See Cervantes,

132 F.3d at 1110; see also United States v. Fields, 565 F.3d 290, 298 (5th Cir. 2009) (“The district

court need not hold an evidentiary hearing to resolve ineffective assistance claims where the

petitioner has failed to allege facts which, if proved, would admit of relief.” (quoting Clark v.

Collins, 19 F.3d 959, 964 (5th Cir. 1994))).

III. Analysis

In his single claim, Dickerson alleges that trial counsel provided ineffective assistance by

failing to file a written objection to the 4-level enhancement he received under U.S.S.G. § 3B1.1

for his role as a leader or organizer of the criminal activity.1 To prevail on an ineffective assistance

of counsel claim, the defendant must show that: (1) counsel’s performance fell below an objective

standard of reasonableness; and (2) there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceedings would have been different. See Strickland v.

Washington, 466 U.S. 668, 687 (1984). The first prong of the Strickland test requires the defendant

to show that counsel’s representation was objectively unreasonable. Id. at 687-88.

Reasonableness is measured against prevailing professional norms and is viewed under the totality

of the circumstances. Id. at 688. The second prong of the Strickland test requires the defendant

to show that “it is reasonably likely the result would have been different,” if not for counsel’s

deficient performance. Harrington v. Richter, 562 U.S. 86, 111 (2011) (cleaned up). The

defendant has the burden of proof on both Strickland prongs. See United States v. Chavez, 193

F.3d 375, 378 (5th Cir. 1999).

1The government contends that Dickerson’s claim is actually a challenge to the application of the

Guidelines, which is not cognizable in a § 2255 motion. See, e.g., United States v. Williamson, 183 F.3d

458, 462 (5th Cir. 1999) (misapplication of the Sentencing Guidelines is not a cognizable claim under

§ 2255); United States v. Cervantes, 132 F.3d 1106, 1109 (5th Cir. 1998) (a claim that the court erred in

calculating a defendant’s sentence is not grounds for § 2255 relief because “[t]echnical application of the

Sentencing Guidelines does not give rise to constitutional issues”); United States v. Segler, 37 F.3d 1131,

1133-34 (5th Cir. 1994) (“A district court’s technical application of the Guidelines does not give rise to a

constitutional issue cognizable under § 2255”). Rather than specifically challenging the Guidelines

calculation, Dickerson clearly frames his claim as one of ineffective assistance of counsel. The court will

address his claim within the framework of an ineffective assistance of counsel claim.

Under both prongs, judicial scrutiny is highly deferential, and the defendant must overcome

a strong presumption that his counsel’s conduct falls within the wide range of reasonable

professional assistance. See Strickland, 466 U.S. at 689. The court presumes that “trial counsel

rendered adequate assistance and that the challenged conduct was the product of reasoned trial

strategy.” Wilkerson v. Collins, 950 F.2d 1054, 1065 (5th Cir. 1992). To overcome the

presumption, the defendant “must identify the acts or omissions of counsel that are alleged not to

have been the result of reasonable professional judgment.” Strickland, 466 U.S. at 690.

Because a defendant must satisfy both prongs of Strickland, even if counsel’s performance

was professionally unreasonable, the sentence will not be set aside unless it was adversely affected

by the deficiency. See Strickland, 466 U.S. at 691. To establish prejudice, a defendant must show

that the result of the challenged proceeding would have been different without counsel’s allegedly

deficient performance “and that counsel’s errors were so serious that they rendered the proceedings

unfair or the result unreliable.” Chavez, 193 F.3d at 378. When the defendant raises ineffective

assistance of counsel in connection with the imposition of his sentence, he must show that, but for

counsel’s errors, he would have received less time in prison. See United States v. Grammas, 376

F.3d 433, 437-38 (5th Cir. 2004) (citing Glover v. United States, 531 U.S. 198, 203 (2001)).

A. Deficient Performance

To satisfy Strickland’s first prong, Dickerson contends that trial counsel’s performance

was deficient because she failed to file written objections to the § 3B1.1(a) enhancement in the

PSR or to formally object to the PSR at the sentencing hearing. Dickerson contends that had

counsel filed such objections, the court would have either completely stricken the enhancement or

reduced it to a 3-level enhancement under § 3B1.1(b). The record of the sentencing hearing does

not support Dickerson’s argument that counsel performed deficiently.

To be subject to the 4-level enhancement for his role in the offense, the defendant must be

either a leader or organizer of one or more other participants or have “management responsibility

over the property, assets, or activities of a criminal organization.” U.S. SENT’G COMM’N,

GUIDELINES MANUAL § 3B1.1 cmt. 2 (Nov. 2023). If a defendant is not a leader or organizer, he

may still be subject to a 3-level enhancement as a manager or supervisor. See U.S.S.G. § 3B1.1(b).

In distinguishing between a leadership role and a management role, the court considers (1) the

exercise of decision-making authority, (2) the nature of participation in the commission of the

offense, (3) the recruitment of accomplices, (4) any claimed right to a larger share of the fruits of

the crime, (5) the degree of participation in planning or organizing the offense, (6) the nature and

scope of the illegal activity, and (7) the degree of control and authority exercised over others. Id.

at cmt. 4. These factors are neither dispositive nor exhaustive, and the court is entitled to look to

all of the facts to determine the defendant’s role. See United States v. Ayala, 47 F.3d 688, 690 (5th

Cir. 1995) (“A defendant’s role in the criminal activity for the purpose of applying guideline

section 3B1.1 may be deduced inferentially from available facts.”).

The facts included in Dickerson’s plea agreement and documented in the PSR show that

he organized and managed the distribution of more than 100 kilograms of cocaine to distributors

in at least 3 states over at least a 2-year period. Dickerson received kilogram-quantity cocaine

deliveries from Martinez and Arauza, managed the distribution of that cocaine to lower-level

distributors from around the country, and handled payments for both sides of the transactions. He

had decision-making authority over the prices he charged distributors for the cocaine. On at least

two occasions, he arranged for someone to deliver cocaine on his behalf to Mississippi. In

addition, Dickerson owned and managed the property where the cocaine transactions occurred,

and he maintained books and ledgers of those transactions. While Dickerson may not have been

the only leader of the activity, these facts show that he had a leadership role in the conspiracy. The

facts support the trial court’s finding at the sentencing hearing that a 4-level enhancement based

on Dickerson’s role was appropriate.

In his § 2255 motion, Dickerson challenges the credibility of the facts contained in the

PSR. But the facts in the PSR are supported by his co-defendant’s statements, Dickerson’s own

statements, and the evidence found during the execution of the search warrant. A court may adopt

the facts included in a PSR “without further inquiry if those facts have an adequate basis with

sufficient indicia of reliability and the defendant does not present rebuttal evidence or otherwise

demonstrate that the information in the PSR is unreliable.” United States v. Melendez, 57 F.4th

505, 509 (5th Cir. 2023); see also Ayala, 47 F.3d at 690 (“The defendant bears the burden of

demonstrating that the PSR is inaccurate; in the absence of rebuttal evidence, the sentencing court

may properly rely on the PSR and adopt it.”). Dickerson does not identify new or different facts

that counsel could have presented to the court through a formal or written objection to the PSR to

rebut the facts contained in the PSR or its characterization of his role in the offense. And while

Dickerson takes issue with trial counsel’s decision to raise the issue in argument at the sentencing

hearing rather than in a written objection, trial counsel is not deficient for pursuing a sentencing

strategy different from that which current counsel would have pursued, as long as it is reasonable.

In the absence of evidence showing that the trial court’s determination that Dickerson was

a leader or organizer was unreliable, Dickerson cannot show that trial counsel’s performance was

deficient. He has failed to satisfy the first Strickland prong, which precludes relief on his § 2255

motion.

B. Prejudice

In addition to failing to show deficient performance, Dickerson has failed to satisfy the

second Strickland prong by showing that he was prejudiced by trial counsel’s alleged deficiencies.

To prove prejudice in the context of his sentence, Dickerson must point to facts demonstrating a

reasonable probability that he would have received a sentence below 132 months had trial counsel

filed written objections or made a “formal objection” to the 4-level role enhancement included in

the PSR.

Dickerson contends that if counsel had filed written objections or formally objected to the

PSR, the court would have removed the enhancement and his advisory Guidelines sentencing

range would have been lowered, resulting in a lower sentence. But Dickerson points to no evidence

that the 4-level enhancement would have been removed had counsel filed a written or formal

objection, rather than making her arguments during the sentencing hearing. In addition, Dickerson

received a sentence significantly below the advisory Guidelines sentencing range, and he points to

no evidence that the court would have imposed an even lower non-Guideline sentence if the

enhancement had been reduced or removed.

More importantly, the transcript of the sentencing hearing does not support Dickerson’s

argument that he was prejudiced by any allegedly deficient trial counsel performance. At the

sentencing hearing, trial counsel raised the issue of the role enhancement, contending that

Dickerson did not qualify as a leader of the organization. Contrary to Dickerson’s current

argument, trial counsel did not forget about the role enhancement issue. Instead, the transcript

shows that trial counsel made a prepared and well-reasoned argument that Dickerson acted only

as a go-between between the actual suppliers—Arauza and Martinez—and the actual distributors,

including Ward, Jackson, Parks, Canady, and Robinson. Counsel argued that the 4-level

enhancement overstated Dickerson’s role, that he did not import or supply the cocaine, that he did

not have people selling for him, and that he was simply a “mule” who transferred the cocaine from

the supplier to the distributors.

The transcript shows that the court did not refuse to consider trial counsel’s arguments

because of the lack of a written objection. Instead, the court considered trial counsel’s argument

and determined that the 4-level enhancement was “appropriately imposed.” (Docket Entry No.

518, p. 15). The court then explained:

So what do I do with all of that conflicting evidence? It is not an easy

choice. The government wants 176 months. Your lawyer has asked me to consider

60 months. 60 months is not sufficient to account for your role in distributing 101

kilos of cocaine over an extended period. 176 months seems to me to be more than

is needed given – or appropriate given the extent of the defendant’s compliance

over the last years and cooperation with the government including, as you say,

securing the conviction of three other individuals.

So trying to balance all of those things, I believe the appropriate sentence is

132 months. That is ten years plus 12 months. It seems to me that that does give –

that does recognize Mr. Dickerson’s cooperation, the benefits it provided. It

recognizes the severity, nature, extent, and duration of his criminal activity; and it

is – does not involve or present unwarranted disparities with other defendants who

are in critical ways similar; and it is this Court’s judgment. The Court believes it

is consistent with the guideline objectives and with the 3553(a) factors.

(Id. at 15-16).

Although the court did not accept Dickerson’s requested sentence, it is apparent that the

court did not base its sentencing decision on a specified reduction from advisory Guidelines

sentencing range. It is also apparent that the court entertained trial counsel’s arguments concerning

Dickerson’s role in the criminal activity and his relative culpability when compared to his co-

defendants. The court did not limit its consideration of a sentence to the advisory Guidelines

sentencing range but instead imposed a sentence based on the statutory minimum sentence of 120

months and its evaluation of all the facts and sentencing factors, including those required by 18

U.S.C. § 3553(a) and the parties’ arguments. In short, the sentence was imposed based on the

court’s independent review of the facts included in the plea agreement, the PSR, the statutory

minimum sentence, the sentences of the co-defendants and their relative culpabilities, and the

court’s consideration of the arguments made at the sentencing hearing. Nothing in the record

shows that trial counsel’s failure to file a written objection to the 4-level enhancement for

Dickerson’s role in the offense factored into the court’s sentencing decision in any manner.

Dickerson points to no evidence showing that he would have received a lower non-

Guideline sentence had trial counsel had filed written objections to the PSR rather than relying on

argument at the sentencing hearing. In the absence of such evidence, Dickerson cannot establish

that he was prejudiced by any alleged deficient performance by trial counsel. Having failed to

establish Strickland’s prejudice prong, Dickerson cannot prove his ineffective assistance of

counsel claim, and his motion to vacate, set aside, or correct his sentence is denied.

IV. Certificate of Appealability

Rule 11 of the Rules Governing Section 2255 Proceedings requires a district court to “issue

or deny a certificate of appealability when it enters a final order adverse to the applicant.” A

certificate of appealability will not issue unless the petitioner makes “a substantial showing of the

denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), which requires the petitioner to

demonstrate “that reasonable jurists would find the district court’s assessment of the constitutional

claims debatable or wrong.” Tennard v. Dretke, 542 U.S. 274, 276 (2004) (quoting Slack v.

McDaniel, 529 U.S. 473, 484 (2000)) (cleaned up). Under that standard, the petitioner is required

to show “that reasonable jurists could debate whether (or, for that matter, agree that) the petition

should have been resolved in a different manner or that the issues presented were adequate to

deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003)

(cleaned up). A district court may deny a certificate of appealability on its own, without requiring

further briefing or argument. See Alexander v. Johnson, 211 F.3d 895, 898 (Sth Cir. 2000) (per

curiam). The court concludes that reasonable jurists could not find Dickerson’s claim meritorious.

A certificate of appealability is denied.

V. Conclusion

Dickerson’s motion to vacate, set aside, or correct a sentence under 28 U.S.C. § 2255,

(Docket Entry No. 529), is denied. Dickerson’s civil action, (No. 4:23-cv-3784), is dismissed with

prejudice. The record conclusively demonstrates that no relief is appropriate, and no evidentiary

hearing is needed. See United States v. Santora, 711 F.2d 41, 42 (Sth Cir. 1983) (no hearing is

necessary when a motion is devoid of factual or legal merit). Because reasonable jurists could not

disagree with the denial of the § 2255 motion, no certificate of appealability is issued. See United

States v. Bernard, 762 F.3d 467, 483 (Sth Cir. 2014).

SIGNED on April 23, 2024, at Houston, Texas.

LW Carte

Lee H. Rosenthal

United States District Judge

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