# Butts v. United States

> District Court, N.D. West Virginia · September 13, 2017

URL: https://www.frixlaw.com/law-library/cases/10724795

## Case

- **Court:** District Court, N.D. West Virginia
- **Decided:** September 13, 2017
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
MARTINSBURG

STEPHANIE BUTTS,

Petitioner,

v. Civil Action No. 3:16-CV-7
Criminal Action No. 3:14-CR-42-3
(GROH)

UNITED STATES OF AMERICA,

Respondent.

REPORT AND RECOMMENDATION

I. INTRODUCTION
The Petitioner, a pro se inmate, who is currently serving a 115-month sentence at
FMC Carswell in Fort Worth, Texas, initiated this habeas corpus proceeding pursuant to
28 U.S.C. § 2255, by the filing of a motion to vacate, set aside or correct her sentence
on January 11, 2016. ECF No. 5081. A notice of deficient pleading which advised
Petitioner that her motion needed to be filed on a court-approved form was issued by
the Clerk on January 13, 2016. ECF No. 511. Thereafter, on February 8, 2016,
Petitioner filed her motion to vacate, set aside or correct her sentence on the proper
form. ECF No. 514.
On July 6, 2017, the United States filed its answer which included a
representation that plea and sentencing transcripts would be filed upon receipt. ECF
No. 665. Petitioner then filed a reply to the Government’s answer on July 27, 2017.
ECF No. 681. The transcript of the plea entry proceedings held on September 17,

1 ECF Numbers cited herein refer to case number 3:14-CR-42-3 unless otherwise noted.
2014, was filed on July 27, 2017. ECF No. 683. The Transcript of the sentencing
hearing held on January 12, 2015, was filed on July 27, 2017. ECF No. 684.
This case is now before the undersigned for a preliminary review and report and
recommendation pursuant to 28 U.S.C. §§ 636, 1915(A) and Local Rule of Prisoner
Litigation (“LR PL”) P 2.

II. FACTUAL AND PROCEDURAL HISTORY
A. Petitioner’s Conviction and Sentence

Petitioner was indicted on July 22, 2014, as one of fourteen defendants charged
in a 24-count indictment. ECF No. 1. Petitioner was charged in Count 1 with
conspiracy to distribute and possess heroin, in Count 5 with aiding and abetting
distribution of heroin, and in Count 8 with aiding and abetting possession with intent to
distribute heroin. Id. On September 17, 2014, consistent with the plea agreement2 filed
with the court on that date, Petitioner entered her guilty plea to Count 8, which was
alleged to have occurred on or about January 29, 2014. ECF No. 239. Pursuant to the
terms of the agreement, Petitioner faced a term of imprisonment up to twenty years for
her plea, a term of supervised release of at least three years and a fine of up to
$1,000,000.00. ECF No. 239 at 1, ¶ 2. In paragraph 11, Petitioner waived her
appellate rights. Id. at 4. At the plea entry hearing, counsel for the Government
summarized the provisions of paragraph 4 which stipulates that “the total drug relevant
conduct of this defendant is a Base Offense Level 28, which represents at least 400
grams, but less than 700 grams of heroin.” ECF No. 683 at 11:6 – 11. Petitioner then
confirmed to the Magistrate Judge that she understood that stipulation. Id. at 16:20 –

2 Counts 1 and 5 were dismissed on the motion of the United States at sentencing consistent
with paragraph 7 of the plea agreement. ECF No. 239 at 3 ¶ 7.
25. Counsel for the Government summarized the provisions of paragraph 9 of the plea
agreement, pursuant to which the Government recommended that Petitioner receive a
total three level reduction, comprised of a two-level reduction for acceptance of
responsibility and a one level reduction for timely acceptance of responsibility. ECF
Nos. 239 at 4, ¶ 9, 683 at 12:19 – 3:3.

A Presentence Investigation Report (“PSR”) was prepared and disclosed to
Petitioner. ECF Nos. 394, 684 at 3:4 – 10. An addendum to the original PSR was filed
later which reflected that Petitioner qualified as a career offender, which status was
unknown to Petitioner at the time she entered her plea. ECF Nos. 394 at 39, 684 at
3:19 – 4:12.
On January 12, 2015, Petitioner was sentenced by the District Court to a variant
sentence of 115 months of incarceration. ECF No. 684 at 19:9 - 14. The Court
advised the parties that Petitioner would ordinarily have a base offense level of 26, but
with the career offender enhancement would have a base offense level of 32. ECF

Nos. 394 at 11 ¶ 52, 39; 684 at 6:4 – 8. The Court noted Petitioner’s prior controlled
substance offense and crime of violence offense which qualified her for career
enhancement were from Petitioner’s convictions for conspiracy to sell heroin in
Davidson County, Texas, on September 23, 2004, and for unlawful wounding in
Berkeley County, West Virginia, on December 12, 2005. ECF No. 684 at 6:9 – 14.
The initial PSR, prepared on November 5, 2014, provided that Petitioner’s Base
Offense Level was 26 with a 3 point reduction for acceptance of responsibility, making
her total offense level 23, with a criminal history category of VI. ECF No. 394 at 1, 11 –
12, ¶¶ 52 – 61, 19 at ¶¶ 82 – 84. Under that calculation, the United States Sentencing
Guidelines (“U.S.S.G. or “the Guidelines”) recommend an imprisonment range from 92
to 115 months. ECF No. 394 at 27, ¶ 136. The addendum to the PSR, prepared on
November 25, 2014, advised the Court that Petitioner qualified as a Career Offender
pursuant to U.S.S.G. § 4B1.1, and further advised that Petitioner’s Base Offense Level
was 32, with a 3 point reduction for acceptance of responsibility, making her total

offense level 29, with a criminal history category of VI. ECF No. 394 at 1, 39. Under
that calculation, the Guideline imprisonment range was from 151 to 188 months. Id. At
sentencing, the Government recommended a sentence of 92 months, at the low end of
the range without the career offender enhancement, and substantially outside the 151
to 188 month range applicable with a career enhancement. Id. at 17:3 – 7. The District
Court imposed a variant sentence of 115 months, at the high end of the range without
the career offender enhancement. Id. at 19:9 – 14. The Court explained its reasoning:
In reaching my decision as to the proper sentence to
be imposed, I did consider all those factors set forth in 18
United States Code § 3553(a).
Specifically the reasons for the sentence imposed
are as follows:
Over a period of time, defendant was involved in a
serious heroin distribution conspiracy that brought heroin
from Maryland into the Northern District of West Virginia for
resale and personal use.
Review of her criminal history reveals an
uninterrupted pattern of illegal activity, and defendant is a
career offender. Her history includes offenses involving
drugs, theft, crimes of violence, and obstruction of the law.
Based upon defendant's involvement in this instant
offense, her personal history and characteristics, and her
criminal history, she is desperately in need of corrective
treatment which can most effectively be provided by this
sentence of imprisonment, which is a variant sentence of
115 months.
Despite her vast criminal history, nevertheless as Mr.
Douglas pointed out, in support of the variant sentence
imposed by the Court, no firearm was involved in this
offense. There was no violence involved in the offense. It
does appear to the Court that this offense that the
defendant presents for today was addiction driven.
According to the government, this defendant
voluntarily was interviewed and provided valuable
information to the government regarding codefendant Tavon
Moore, who was higher up in the hierarchy in this offense
than she.
And to borrow a phrase from Mr. Douglas, it does
appear as though the defendant, despite her uninterrupted
pattern of illegal activity, became a career offender on these
two prior qualifying convictions by the skin of her teeth.
Overall, this variant sentence of 115 months reflects
the serious nature of the offense, and will hopefully deter the
defendant from engaging in future drug trafficking crimes.

ECF No. 684 at 22:21 - 24:11. According to the Bureau of Prisons website, Petitioner’s
projected release date is June 5, 2022.
B. Petitioner’s Direct Appeal

Petitioner did not directly appeal her conviction. ECF No. 514 at 2. In regard to
the two grounds she asserts herein, she claims that “[b]ecause of Ineffective Assistance
of Counsel I did not know that I could” appeal. ECF No. 514 at 5, 8.
C. Petitioner’s Federal Habeas Corpus Petition.
By filing an initial motion to vacate, set aside or correct her sentence, pursuant to
28 U.S.C. § 2255, Petitioner instituted the instant case, after which she refiled her motion
on the proper forms, seeking a reduction of her sentence from 115 months to 84 months.
ECF Nos. 508, 514. In her properly filed motion to vacate, Petitioner raises two grounds
for relief:
1. Ground One. Petitioner claims that her criminal history was miscalculated,
violating her Fifth Amendment due process rights, her Sixth Amendment right to counsel,
her Eighth Amendment right against cruel and unusual punishment, and her Fourteenth
Amendment due process rights. ECF No. 514 at 5.
2. Ground Two. Petitioner claims that the United States Sentencing
Guidelines Career Offender Enhancement was misused in calculating her sentence,
violating her Fifth Amendment due process rights, her Sixth Amendment right to counsel,
and her Eighth Amendment right against cruel and unusual punishment. ECF No. 514 at

6. Petitioner also argues in the brief which accompanies her motion that her career
offender enhancement should be eliminated because it was based on her conviction for
conspiracy which she argues is unconstitutionally vague. ECF No. 514-1 at 2.

III. STANDARD OF REVIEW
Pursuant to 28 U.S.C. § 1915A(b), the Court is required to perform a judicial
review of certain suits brought by prisoners and must dismiss a case at any time if the
Court determines that the complaint is frivolous, malicious, fails to state a claim upon
which relief can be granted, or seeks monetary relief against a defendant who is

immune from such relief. A complaint is frivolous if it is without arguable merit either in
law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989) (superseded by statute).
The Supreme Court in Neitzke recognized that:
Section 1915(d) is designed largely to discourage the filing
of, and waste of judicial and private resources upon,
baseless lawsuits that paying litigants generally do not
initiate because of the costs of bringing suit and because of
the threat of sanctions for bringing vexatious suits
under Federal Rule of Civil Procedure 11. To this end, the
statute accords judges not only the authority to dismiss a
claim based on an indisputably meritless legal theory, but
also the unusual power to pierce the veil of the complaint's
factual allegations and dismiss those claims whose factual
contentions are clearly baseless. Examples of the former
class are claims against which it is clear that the defendants
are immune from suit. . .

Id. at 327. Frivolity dismissals should only be ordered when the legal theories are
indisputably meritless, or when the claims rely on factual allegations which are “clearly
baseless.” Denton v. Hernandez, 504 U.S. 25, 32 (1992).
A. Pro Se Pleadings.
Courts must read pro se allegations in a liberal fashion. Haines v. Kerner, 404
U.S. 519, 520 (1972). However, while pro se pleadings are held to a less stringent
standard than those drafted by attorneys, even under this less stringent standard, a pro
se complaint is still subject to dismissal. Haines, supra, at 520–21. “[T]he mandated
liberal construction afforded to pro se pleadings ‘means that if the court can reasonably
read the pleadings to state a valid claim on which the petitioner could prevail, it should
do so.’” Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir.1999). However, “judges are
[ ] not required to construct a party’s legal arguments for him.” Small v. Endicott, 998
F.2d 411, 417 - 8 (7th Cir.1993).
B. Motions made Pursuant to 28 U.S.C. § 2255.
A motion made pursuant to 28 U.S.C. § 2255 is a collateral attack on a conviction
or sentence imposed in a separate proceeding. To succeed on such a motion, the
movant must prove one of the following, that: (1) the conviction or sentence was

imposed in violation of the laws or Constitution of the United States; (2) the court in
imposing sentence lacked jurisdiction; (3) the sentence exceeded the maximum
authorized by law; or (4) the sentence was otherwise subject to collateral attack. 28
U.S.C. § 2255(a).
The United States Supreme Court has “long and consistently affirmed that a
collateral challenge may not do service for an appeal.” United States v. Frady, 456 U.S.
152, 165 (1982). Petitioners are limited in the issues which may be addressed in cases
brought pursuant to § 2255. Petitioners who fail to raise issues on direct appeal or who
raise issues on direct appeal which are decided there, are both precluded from

addressing those same issues in § 2255 proceedings. “Nonconstitutional claims that
could have been raised on direct appeal, but were not, may not be asserted in
collateral proceedings.” Stone v. Powell, 428 U.S. 465, 477, n.10, (1976) (emphasis in
original) (citing Sunal v. Large, 332 U.S. 174, 178-79 (1947)); see also United States v.
Linder, 552 F.3d 391, 396-97 (4th Cir. 2009) (A petitioner who waives the right to appeal
“is not precluded from filing a petition for collateral review. But he is precluded from
raising claims that are the sort that could have been raised on appeal.”) (Quoting Brian
R. Means Fed. Habeas Practitioner Guide, Jurisdiction ¶ 1.23.0) (2006-2007) (emphasis
in original) (internal citations omitted). Similarly, the Supreme Court has long held that

the general rule that “claims not raised on direct appeal may not be raised on collateral
review unless the petitioner shows cause and prejudice.” Massaro v. United States,
538 U.S. 500, 504 (2003).
The Fourth Circuit has also held that when a petitioner raises issues which have
been previously appealed and decided, that petitioner “will not be allowed to recast,
under the guise of collateral attack, questions fully considered” in earlier decisions.
Boeckenhaupt v. United States, 537 F.2d 1182, 1183 (4th Cir. 1976), citing Herman v.
United States, 4th Cir., 227 F.2d 332 (1955); Accord United States v. Harrison, No. 96-
7579, 1997 WL 499671, at *1 (4th Cir. August 25, 1997) (unpublished).
“It is well settled that a voluntary and intelligent plea of guilty made by an
accused person, who has been advised by competent counsel, may not be collaterally
attacked.” Mabry v. Johnson, 467 U.S. 504, 508 (1984); Bousley v. United States, 523
U.S. 614, 621 (1998). “In order to collaterally attack a conviction or sentence based
upon errors that could have been but were not pursued on direct appeal, the movant

must show cause and actual prejudice resulting from the errors of which he complains
or he must demonstrate that a miscarriage of justice would result from the refusal of the
court to entertain the collateral attack.” United States v. Mikalajunas, 186 F.3d 49.0,
492-93 (4th Cir. 1999).
A constitutional error that could have been, but was not raised on appeal, may
not be raised for the first time in a § 2255 motion, unless it passes a two part-test which
requires the movant to show either (1) “cause” that excuses the failure to raise the error
on appeal and “actual prejudice” resulting from the error, or (2) that a miscarriage of
justice would occur if the court refuses to entertain a collateral attack. (citing Bousley,

523 U.S. at 621-22); Frady, 456 U.S. at 167-68.
The Supreme Court has recognized that it has not strictly defined “cause”
because of “the broad range of potential reasons for an attorney's failure to comply with
a procedural rule, and the virtually limitless array of contexts in which a procedural
default can occur.” Reed v. Ross, 468 U.S. 1, 13, (1984) (Citing Wainwright v. Sykes,
433 U.S. 72, 87 (1977). The Supreme Court explained that, “[u]nderlying the concept of
cause, however, is at least the dual notion that, absent exceptional circumstances, a
defendant is bound by the tactical decisions of competent counsel.” Id. (Citing
Wainwright v. Sykes, supra, at 91, and n. 14; Henry v. Mississippi, 379 U.S. 443, 451
(1965)). To establish “actual prejudice,” contemplated in the first prong, the movant
must show that the alleged error resulted in an “actual and substantial disadvantage,”
rather than a mere possibility of prejudice. Satcher v. Pruett, 126 F.3d 561, 572 (4th Cir.
1977) (quoting Murray v. Carrier, 477 U.S. 478, 494 (1986)).
To demonstrate a miscarriage of justice, contemplated in the second prong, the

movement must prove “actual innocence” of the crime for which he was convicted,
substantiating that “it is more likely than not, in light of all the evidence, that no
reasonable juror would have convicted him.” Bousley, 523 U.S. at 623 (quoting Schlup
v. Delo, 513 U.S. 298, 327-28 (1995)).
C. Scope of § 2255 proceedings where misapplication of the Sentencing
Guidelines is raised.

The Fourth Circuit has long held that, “Section 2255 provides a means for one
convicted of a federal offense to collaterally attack a conviction or sentence that, inter
alia, “was imposed in violation of the Constitution or laws of the United States,” and thus
§ 2255 relief is not limited to constitutional error in a conviction or sentence.” United
States v. Mikalajunas, 186 F.3d 490, 495 (4th Cir. 1999) (citing Davis v. United States,
417 U.S. 333, 345-46 (1974)). The same year it decided Mikalajunas, the Fourth Circuit
also decided United States v. Pregent, 190 F.3d 279, 283–84 (4th Cir. 1999) which cited
to substantial precedent from other circuits and held:
Barring extraordinary circumstances [ ] an error in the
application of the Sentencing Guidelines cannot be raised in
a § 2255 proceeding. Section 2255 provides relief for cases
in which “the sentence was in excess of the maximum
authorized by law.” Thus, while § 2255 applies to violations
of statutes establishing maximum sentences, it does not
usually apply to errors in the application of the Sentencing
Guidelines. See United States v. Mikalajunas, 186 F.3d 490,
495–496 (4th Cir.1999) ( “[M]isapplication of the [sentencing]
guidelines typically does not constitute a miscarriage of
justice.”); see also Auman v. United States, 67 F.3d 157, 161
(8th Cir.1995) (holding absent a “miscarriage of justice,”
ordinary questions of Guidelines interpretation are not
cognizable on collateral review); Scott v. United States, 997
F.2d 340, 341 (7th Cir.1993) (“A claim that the judge
misapplied the Sentencing Guidelines does not challenge
the jurisdiction of the court or assert that the judge exceeded
the statutory maximum.”); Knight v. United States, 37 F.3d
769, 773–74 (1st Cir.1994) (holding that misapplication of
Sentencing Guidelines is generally not a proper claim under
§ 2255); United States v. Segler, 37 F.3d 1131, 1134 (5th
Cir.1994) (“A district court's technical application of the
Guidelines does not give rise to a constitutional issue
cognizable under § 2255.”).

IV. ANALYSIS
To obtain relief pursuant to the statute under which Petitioner seeks relief, 28
U.S.C. § 2255, Petitioner must prove one of the following: (1) that her conviction or
sentence was imposed in violation of the laws or Constitution of the United States; (2)
that the court which imposed sentence lacked jurisdiction; (3) that the sentence
exceeded the maximum authorized by law; or (4) that the sentence was otherwise
subject to collateral attack. Petitioner has alleged only the first of these, that her
sentence was imposed in violation of the laws or Constitution.
The essence of Petitioner’s claims is that the Court violated her Constitutional
rights by miscalculating her criminal history and by sentencing her under a
misapplication of the United States Sentencing Guidelines. Petitioner argues that she is
entitled to relief and seeks a reduction of her sentence from 115 to 84 months. The
Government makes two arguments: (1) that Petitioner’s criminal history was properly
calculated; and (2) that despite qualifying as a career offender, Petitioner was
sentenced without regard to her career offender status. For the reasons explained
below, the undersigned finds the Government’s arguments persuasive.

A. Ground One.

Petitioner’s criminal history was properly calculated.

Petitioner argues that her criminal history was improperly calculated on three
bases. First, Petitioner claims that her criminal history points, as included in the PSR
and addendum thereto, were improperly calculated. Second, she claims that the
improperly calculated criminal history points improperly elevated her criminal history
category. Third, Petitioner claims that her base offense level was improperly calculated.
However, a review of the PSR and its addendum [ECF No. 394] reveals that Petitioner’s
criminal history points, criminal history category and base offense level were all properly
calculated.
1. Petitioner’s criminal history points.
Section 4A1.1 of the Guidelines sets forth the formula for calculating an
individual’s criminal history category based on the calculation of criminal history points:
The total points from subsections (a) through (e) determine
the criminal history category in the Sentencing Table in
Chapter Five, Part A.
(a) Add 3 points for each prior sentence of imprisonment
exceeding one year and one month.
(b) Add 2 points for each prior sentence of imprisonment
of at least sixty days not counted in (a).
(c) Add 1 point for each prior sentence not counted in (a)
or (b), up to a total of 4 points for this subsection.
(d) Add 2 points if the defendant committed the instant
offense while under any criminal justice sentence, including
probation, parole, supervised release, imprisonment, work
release, or escape status.
(e) Add 1 point for each prior sentence resulting from a
conviction of a crime of violence that did not receive any
points under (a), (b), or (c) above because such sentence
was treated as a single sentence, up to a total of 3 points for
this subsection.

In the initial PSR the defendant’s criminal history points were calculated at 13,
without a designation as a career offender. The addendum to the PSR advised the
Court that “[s]ubsequent to the submission of the Presentence Report . . . the United
States Probation Office again reviewed the defendant’s criminal history and noticed that
an oversight was made regarding the computation of the defendant’s criminal history.”
ECF No. 394 at 39. The addendum explained that Petitioner qualified as a career
offender. Id. Consistent with the Guidelines, that designation was made without regard
to the timeframe in which Petitioner’s prior offenses were committed. The initial PSR
showed Petitioner’s criminal history began at age 19, when she was convicted of
various driving offenses in the Magistrate Court of Berkeley County, West Virginia on
September 5, 1996. Id. at 12, ¶ 65. However, that and other offenses from the 1990s
were outside the time frame for calculation of criminal history points.
Petitioner argues that her September 29, 2003 conviction for petit larceny3 in the
Magistrate Court of Berkeley County, West Virginia, was also too remote in time to be
counted as a prior sentence of imprisonment pursuant to U.S.S.G. § 4A1.1(b).
According to the PSI, Petitioner was assessed one criminal history point for her 2003
conviction for petit larceny. ECF No. 394 at 13, ¶ 69. The Commentary 2 to U.S.S.G. §
4A1.1(c) provides in part that, “[a] sentence imposed more than ten years prior to the
defendant’s commencement of the instant offense is not counted.” In the instant matter,
Petitioner entered a plea to Count 8 of the indictment, which was alleged to have

3 Petitioner was also convicted of petit larceny in 2005. ECF No. 394 at 16 ¶ 73.
occurred on or about January 29, 2014. ECF No. 1 at 11. The Government argues that
the conspiracy alleged in Count 1 of the Indictment was alleged to have commenced in
2008, thus making Petitioner’s prior petit larceny conviction within the ten year period for
application of a criminal history point.
It is unnecessary for the Court to determine whether the petit larceny charge was

within the appropriate time frame for calculating criminal history points because even
without including that offense, Petitioner received the maximum permissible criminal
history points.
The applicable subparagraph instructs the Court to “[a]dd 1 point for each prior
sentence not counted in (a) or (b), up to a total of 4 points for this subsection.” U.S.S.G.
§ 4A1.1(c). The Government concedes that Petitioner merited a total of eight criminal
history points under § 4A1.1(c), one of which was for her 2003 petit larceny conviction,
but that only four of the eight criminal history points earned by Petitioner may be used
for calculation under the Guidelines. ECF No. 665 at 3. Even if Petitioner’s 2003 petit

larceny conviction were determined to be outside the time frame, the calculation of her
criminal history points would not change. Regardless of whether a criminal history point
was assessed against Petitioner for her 2003 petit larceny conviction, the reduction of
her earned criminal history points from eight to seven would make no change to her
total criminal history calculation under § 4A1.1(c), which at most may be four points.
Petitioner also argues that her August 31, 2004 conviction for assault third
degree in Wayne County, New York, [ECF No. 394 at 14 ¶ 71] was improperly
considered by the court in the calculation of her criminal history points. The same
analysis used in regard to Petitioner’s 2003 petit larceny conviction applies to her
conviction for assault third degree. According to the PSI, Petitioner was assessed one
criminal history point for her conviction for assault third degree. ECF No. 394 at 14, ¶
71. Petitioner challenges the validity of this criminal history point, arguing that the point,
“should not have been given or considered on any level.” ECF 514-1 at 1 – 2. As with
Petitioner’s 2003 petit larceny conviction, it is irrelevant to Petitioner’s total criminal

history calculation whether Petitioner’s assault third degree conviction is counted.
Regardless of whether a criminal history point was assessed against Petitioner for her
assault third degree conviction, the reduction of one earned criminal history point would
make no change to her total criminal history calculation under § 4A1.1(c), which at most
may be four points. Accordingly, even if both the 2003 petit larceny conviction and
assault third degree convictions were eliminated from the calculation, Petitioner’s
criminal history would merit six criminal history points under U.S.S.G. § 4A1.1(c), which
only permits a total of four points to be counted.
Petitioner also asserts that her December 5, 2004, shoplifting third offense and

August 6, 2004, unlawful wounding convictions in Berkeley County Circuit Court were
improperly used in calculating her criminal history, arguing that that, “because she did
not serve more than 1 year one month this charge [sic] does [not] fall under the 15 year
category. So this charge can not be used against her for points. . .” ECF No. 514-1 at
2. Shoplifting third offense4 and unlawful wounding5 are felony offenses in the State of
West Virginia. Shoplifting third offense is punishable by imprisonment for an
indeterminate period, “in the penitentiary for not less than one year nor more than ten
years. At least one year shall actually be spent in confinement and not subject to

4 West Virginia Code § 61-3A-3 criminalizes shoplifting, third offense.
5 West Virginia Code § 61-2-9(a) criminalizes unlawful wounding, a lesser included offense of
malicious wounding.
probation. . .” W. Va. Code § 61-3A-3. Unlawful wounding is punishable by an
indeterminate period of incarceration of not less than one nor more than five years, or in
the alternative one year in the regional jail. W.Va. Code § 61-2-9(a). According to the
PSI, Petitioner was sentenced to not less than one nor more than ten years in the
penitentiary for shoplifting third offense, on December 12, 2005, and paroled on July 20,

2008. ECF No. 394 at 15, ¶ 72. That period of incarceration was for two years and
seven months, and was imposed within fifteen years of Petitioner’s instant conviction.
Accordingly, Petitioner’s conviction for shoplifting third offense merited the addition of
three criminal history points pursuant to U.S.S.G. § 4A1.1(a).
2. Petitioner’s criminal history category.
Petitioner’s criminal history category was computed based on Chapter 4 of the
Guidelines. According to the PSI, Petitioner’s total criminal history score is 13, with a
subtotal criminal history of eleven points, including the maximum four points counted
under U.S.S.G. § 4A1.1(c), and with two additional points for committing the instant

offense while on probation in Berkeley County, West Virginia Magistrate Court, case 13-
M-236. ECF No. 394 at 19, ¶¶ 82 – 84.
Petitioner’s criminal convictions for three prior felonies, conspiracy to sell heroin
on September 23, 2004, shoplifting third offense on November 21, 2005, and unlawful
wounding on December 12, 2005, were properly used in the calculation of her criminal
history points. She received two criminal history points for her conspiracy conviction.

6 The Court notes that this 2013 offense was for a shoplifting second offense conviction which
occurred after Petitioner’s 2005 conviction for shoplifting third offense, and further, that in the interim
Petitioner was convicted of another shoplifting second offense in Berkeley County in case number 12-M-
451.
ECF No. 394 at 14 ¶ 70. She received three criminal history points for her convictions
for shoplifting third offense and unlawful wounding. Id. at 15, ¶ 72.
Petitioner also properly received criminal history points for various misdemeanor
convictions. She received two criminal history points for her 2005 conviction for petit
larceny for which she was sentenced to six months in jail. Id. at 16, ¶ 73. She earned

eight points for her other various convictions, but that number was reduced to the
maximum permissible four points under U.S.S.G. § 4A1.1(c). Id. at 13 ¶ 69, 14 ¶ 71, 16
¶¶ 74 – 75, 17 ¶¶ 78 – 79, 18 ¶¶ 80 – 81, 19 ¶ 82. She also received two points under
§ 4A1.1(d) because she was on probation at the time the instant offense was
committed. Id. at 19 ¶ 83.
“The total [criminal history] points [ ] determine the criminal history category in the
Sentencing Table in Chapter Five, Part A.” U.S.S.G. § 4A1.1. The Sentencing Table
has columns for Criminal History Category based on Criminal History Points. U.S.S.G.
Ch. 5 Pt. A. Petitioner’s total of thirteen criminal history points places her in Category

VI, the highest criminal history category. Id. As discussed above, Petitioner’s
challenges to her criminal history point calculation under subparagraph (c) are without
merit. She did not raise any other grounds which afford her relief in regard to either her
criminal history point calculation or her criminal history category.
3. Petitioner’s base offense level.
The PSR and plea agreement both acknowledge the parties’ stipulation that
Petitioner’s base offense level as 28, based on the weight in grams of heroin involved in
the offense: at least 400, but less than 700 grams. ECF Nos. 239 at 3; ¶ 4, 394 at 4 ¶
11, 10 ¶ 42, 11 ¶ 52; 683 at 11:16 – 11; 16:20 – 25. The relevant paragraph of the plea
agreement further provides that, “[t]he parties understand that . . . the Court is not
bound by the above stipulation.” ECF No. 239 at 3. The stipulation is consistent with
the Drug Quantity Table which constitutes U.S.S.G. § 2D1.1(c)(7) which specifies that,
“at least 400 G but less than 700 G of heroin” is a level 28 offense7. Following
Petitioner’s plea entry on September 17, 2014, revisions to the Guidelines became

effective on November 1, 2014.
At sentencing the Court noted that Petitioner had two prior convictions8 which are
qualifying predicate offenses for career offender purposes under Guideline 4B1.1. ECF
No. 684 at 6:9 – 17. Petitioner’s 2004 conviction for Conspiracy to sell heroin resulted
in a sentence of eight years in the Tennessee Department of Corrections. ECF No. 394
at 14 ¶ 70. Her 2005 conviction for Unlawful Wounding resulted in a sentence of not
less than one nor more than ten years in the West Virginia Division of Corrections. Id.
at 15 ¶ 72.
Those offenses made the Base Offense Level 32 under Guidelines 4B1.1(b)(3).

ECF No. 684 at 19 – 20. Pursuant to § 4B1.1(b), “if the offense level for a career
offender from the table in this subsection is greater than the offense level otherwise
applicable, the offense level from the table in this subsection shall apply.” The table
provides that if the offense of conviction has a statutory maximum of “20 years or more,
but less than 25 years” that offense level is 32. U.S.S.G. § 4B1.1(b)(3). Although
Petitioner correctly points out that her base level offense would have been 26 without
her career offender designation [ECF No. 514-1 at 1], because Petitioner entered a plea

7 This was consistent with the Guidelines effective from November 1, 2013. On November 1,
2014, a change to the Guidelines made that conduct a level 26 offense.
8 The first of these prior offenses was a conviction for conspiracy to sell heroin in Davidson
County, Texas in docket number 2003-A-347 on September 23, 2004. The second of these prior
offenses was a conviction for unlawful wounding in Berkeley County, West Virginia in docket number 05-
F-263 on December 12, 2005.
to an offense which exposed her to not more than 20 years of imprisonment, with her
career offender designation, pursuant to § 4B1.1(b), the greater offense level of 32
applied to Petitioner. However, Petitioner was granted a three level reduction for
acceptance of responsibility, as agreed by the parties, and accepted by the Court,
making Petitioner’s Base Offense Level 29. ECF No. 684 at 6:21 – 7:4. At sentencing,

the Court noted because Petitioner had “a Criminal History Category of VI, based on 13
points, and a Total Offense Level of 29, the Guidelines recommend imprisonment in the
range of 151 to 188 months.” Id. at 7:4 – 8. However, notwithstanding Petitioner’s
career offender designation, the Court imposed a variant sentence, adjusting downward
from the Guidelines range and imposing a sentence that would have applied to
Petitioner had she not been designated as a career offender. Petitioner complains that
the Guidelines were misapplied to her sentence, however, the court’s downward
variance with the Guidelines was in Petitioner’s favor, reducing her sentence by a
period of 40 months.

B. Ground Two.
The Career Offender enhancement was not improperly applied to
Petitioner’s sentence.

Consistent with the Guidelines, Petitioner was designated as a career offender.
ECF Nos. 394 at 39, 684 at 6:9 – 19. Section 4B1.1(a) of the Guidelines provides that:
A defendant is a career offender if (1) the defendant was at
least eighteen years old at the time the defendant committed
the instant offense of conviction; (2) the instant offense of
conviction is a felony that is either a crime of violence or a
controlled substance offense; and (3) the defendant has at
least two prior felony convictions of either a crime of violence
or a controlled substance offense.
Guidelines Manual, November 1, 2014.
Petitioner meets all three requirements to be considered a career offender. First,
Petitioner was at least eighteen years of age when she committed the instant offense.
Petitioner was convicted of Count 8 of the indictment which was alleged to have
occurred on January 29, 2014. ECF No. 1 at 11. At that time Petitioner was 37 years
old. ECF No. 394 at 2. Second, Petitioner’s instant offense is either a crime of violence
or a controlled substance violation. Petitioner’s instant conviction is for aiding and
abetting possession with intent to distribute heroin. ECF No. 684 at 5:5 – 6:2. Third,
Petitioner has at least two prior felony convictions of either a crime of violence or a

controlled substance offense. Petitioner’s two prior qualifying convictions consisted of
one controlled substance violation, conspiracy to sell heroin, in Davidson County,
Tennessee, and a crime of violence, unlawful wounding, in Berkeley County, West
Virginia. ECF No. 684 at 6:9 – 17.
Petitioner argues that her career offender enhancement should be eliminated
because the crime of conspiracy “is unconstitutionally vague.” ECF No. 514-1 at 2.
However, a review of the Guidelines and commentary thereto demonstrates that
Petitioner’s argument is without merit.
Pursuant to the Guidelines, “[t]he term ‘controlled substance offense’ means an
offense under federal or state law, punishable by imprisonment for a term exceeding

one year, that prohibits the manufacture, import, export, distribution, or dispensing of a
controlled substance [ ] or the possession of a controlled substance [ ] with intent to
manufacture, import, export, distribute or dispense.” U.S.S.G. § 4B1.2(b). The
Guidelines defines the term “two prior felony convictions” to mean:
(1) the defendant committed the instant offense of conviction
subsequent to sustaining at least two felony convictions of
either a crime of violence or a controlled substance offense
[ ], and (2) the sentences for at least two of the
aforementioned felony convictions are counted separately
under the provisions of § 4A1.1(a), (b), or (c). . . .

U.S.S.G. § 4B1.2(c). Commentary 1 to § 4B1.2 provides that the terms, “‘crime of
violence’ and ‘controlled substance offense’ include the offenses of aiding and abetting,
conspiring, and attempting to commit such crimes.” Accordingly, Petitioner’s 2003
conviction for conspiracy to sell heroin, for which she was sentenced to eight years in
the Tennessee Department of Corrections [ECF No. 394 at 14 ¶ 70], meets the
definition of a “controlled substance offense” and thus was properly considered as a
qualifying crime for career offender status. Petitioner further argues that her conviction
for conspiracy too remote in time to be considered as a predicate offense to a career
offender designation. ECF No. 514-1 at 3. However, there is no time frame applicable
to career offender designations, as applies to criminal history points. U.S.S.G. § 4B1.1.

Petitioner also argues that her conviction for unlawful wounding was too remote
in time to be considered as a predicate offense to a career offender designation. ECF
No. 514-1 at 4. Again, because there is no time frame applicable to career offender
designations, Petitioner’s unlawful wounding conviction was properly used to designate
her as a career offender, without regard to the date of conviction. U.S.S.G. § 4B1.1.
Additionally, pursuant to the Guidelines9, “[t]he term ‘crime of violence’ means any

9 The undersigned notes that the term “crime of violence” is also defined by 18 U.S.C. § 16, the
term “crime of violence” to mean:

(a) an offense that has as an element the use, attempted use, or
threatened use of physical force against the person or property of
another, or (b) any other offense that is a felony and that, by its nature,
offense under federal or state law, punishable by imprisonment for a term exceeding
one year, that [ ] has an element of the use, attempted use, or threatened use of
physical force against the person of another. . . .” U.S.S.G. § 4B1.2(a). Under West
Virginia Code § 61-2-9(a), the crime of unlawful wounding is a lesser included offense of
malicious wounding:

If any person maliciously shoots, stabs, cuts or wounds any
person, or by any means cause him or her bodily injury with
intent to maim, disfigure, disable or kill, he or she, except
where it is otherwise provided, is guilty of a felony . . . If the
act is done unlawfully, but not maliciously, with the intent
aforesaid, the offender is guilty of a felony. . .
Petitioner was convicted of unlawful wounding, which offense occurred when Petitioner
shot, stabbed, cut or wounded another person, unlawfully but without malice. That
crime had as an element, the use, attempted use or threatened use of physical force
against the person of another, and thus the crime was properly used to designate
Petitioner as a career offender.
For all the reasons stated herein, specifically that: (1) Petitioner’s criminal history
points, criminal history category and base offense level were properly calculated, and
(2) Petitioner was properly designated a career offender, Petitioner’s motion under
§2255 fails, as it is without arguable merit either in law or in fact. Accordingly, the
undersigned finds that the Petitioner has failed to state claim which would entitle her to
relief.

involves a substantial risk that physical force against the person or
property of another may be used in the course of committing the offense.
V. RECOMMENDATION

For the foregoing reasons, the undersigned RECOMMENDS that the
Petitioner’s initial motion to vacate, set aside or correct her sentence [ECF No. 508] and
the refiled motion to vacate, set aside or correct her sentence [ECF No. 514] be DENIED.

The undersigned also RECOMMENDS that the Petitioner’s motions for disposition of
this matter [ECF Nos. 587, 620] be DENIED AS MOOT.
Any party may, within fourteen (14) days after being served with a copy of this
Report and Recommendation, file with the Clerk of the Court written objections
identifying the portions of the Report and Recommendation to which objection is made,
and the basis for such objection. A copy of such objections should also be submitted to
the Honorable Gina M. Groh, Chief United States District Judge. Failure to timely file
objections to the Report and Recommendation set forth above will result in waiver of the
right to appeal from a judgment of this Court based upon such Report and

Recommendation. 28 U.S.C. § 636(b)(1); United States v. Schronce, 727 F.2d 91 (4th
Cir. 1984), cert. denied, 467 U.S. 1208 (1984); Wright v. Collins, 766 F.2d 841 (4th Cir.
1985); Thomas v. Arn, 474 U.S. 140 (1985); Wells v. Shriners Hosp., 109 F.3d 198 (4th
Cir 1997).
This Report and Recommendation completes the referral from the District Court.
The Clerk is directed to terminate the Magistrate Judge association with this case.
The Clerk of the Court is directed to send a copy of this Order to the Petitioner by
certified mail, return receipt requested, to his last known address as reflected on the
docket sheet and to counsel of record via electronic means.
DATED: September 13, 2017

/s/ Michael John Aloi
MICHAEL JOHN ALOI
UNITED STATES MAGISTRATE JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10724795. Public record. Not legal advice.