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UNITED STATES v. ABBOTT

March 4, 1997

UNITED STATES OF AMERICA
v.
SHERWOOD ABBOTT, a/k/a "JUSEF ABBOTT"



The opinion of the court was delivered by: DUBOIS

 DUBOIS, J.

 MARCH 4, 1997

 This matter is before the Court on the pro se Motion of defendant, Sherwood Abbott, Jr., to Vacate, Set Aside, or Correct His Sentence Pursuant to 28 U.S.C. § 2255. Defendant argues that the Court made legal errors in determining his sentence, that his counsel at sentencing was ineffective, and that his sentence was therefore imposed in violation of his Sixth Amendment rights. For the reasons set forth below, defendant's Motion will be denied.

 I. BACKGROUND

 Sherwood Abbott, Jr. ("defendant") pled guilty to two counts of possession of a firearm and ammunition by a convicted felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(a) . He was sentenced on July 12, 1994. At sentencing, the Government presented evidence that defendant sold an assault rifle and a semi-automatic pistol with a vented barrel to a witness who was cooperating with the Government. Tape recorded conversations between defendant and the cooperating witness received in evidence at sentencing disclosed that the witness told defendant that the ultimate purchasers of the weapons were "Young Boys" who trafficked in "cooked 'caine.'"

 Defendant's sentence was calculated as follows:

 The United States Sentencing Guideline for a violation of 18 U.S.C. § 924(a) is § 2K2.1(a)(4)(A). The base offense level under that section is twenty (20). The Court then increased the base offense level by four (4) levels under United States Sentencing Guidelines ("USSG") § 2K2.2(b)(5) in view of the evidence that the guns were possessed with the intent that they be used in connection with a felony, in this case, drug trafficking.

 The Government also argued at sentencing that defendant should be given a two (2) level upward adjustment for obstruction of justice under USSG § 3C1.1. Such a finding by the Court ordinarily precludes a three (3) level reduction for acceptance of responsibility pursuant to USSG. § 3E1.1. However, as a result of the efforts of defense counsel, the Government abandoned its position that defendant obstructed justice and agreed that he was entitled to a three (3) level reduction for acceptance of responsibility under USSG §§ 3E1.1(a) and (b). Sentencing Transcript, at 50, 77, 85, 86.

 Defendant's total offense level was twenty-one (21). Id. at 134. He was in Criminal History Category III. With a total offense level of twenty-one (21), in Criminal History Category III, defendant's Guideline Sentencing Range was forty-six (46) to fifty-seven (57) months. Id. The Court sentenced defendant to fifty-three (53) months on both counts of the Indictment, such terms to run concurrently. Id. at 157.

 II. DISCUSSION

 A. Defendant's Allegations

 Defendant alleges that the Court made four legal errors at his sentencing hearing, resulting in an improperly calculated sentence. Moreover, he alleges that his sentencing counsel was ineffective.

 First, defendant alleges the Court should not have admitted Agent Tropea's testimony at sentencing on the ground that that testimony violated the Federal Rules of Evidence, and that counsel was ineffective in not objecting to the admission of that testimony. Second, defendant argues that the Court should have accounted for the claimed over-representation of his criminal history in calculating his sentence, and that counsel was ineffective in failing to move for a downward departure on that basis. Third, defendant argues that the Court should have accounted for his allegedly extraordinary family circumstances in calculating his sentence, and that counsel was ineffective in failing to move for a downward departure on that basis. Fourth, and finally, defendant alleges that his offense level was improperly enhanced pursuant to USSG § 2K2.1(b)(5) because the government engaged in sentencing entrapment to increase his sentence, and that counsel was ineffective in failing to raise this issue. Defendant has the burden of proof on all such issues. United States, et rel. Freddie M. Johnson v. Johnson, 531 F.2d 169, 174 (3d Cir. 1976).

 B. Procedural Issues

 Defendant is barred from collaterally attacking his sentence pursuant to 28 U.S.C. § 2255 so far as that attack is based upon issues that could have been, but were not, raised on direct appeal. See United States v. Frady, 456 U.S. 152, 162-63, 71 L. Ed. 2d 816, 102 S. Ct. 1584 (1982); United States v. Essig, 10 F.3d 968, 979 (3d Cir. 1993). Defendant could have, but did not, raise the following three claims on direct appeal: 1) that his sentence was improperly calculated due to the improper admission of evidence in violation of the Federal Rules of Evidence, 2) that his sentence should have taken into account the alleged over-representation of his criminal history by his placement in Criminal History Category III, and 3) that his sentence should have taken into account his allegedly extraordinary family circumstances. Therefore, those three claims are procedurally barred. To avoid the bar, defendant must prove "both (1) 'cause' excusing his . . . procedural default, and (2) 'actual prejudice' resulting from the errors of which he complains." Frady, 456 U.S. at 168.

 To satisfy his burden of showing cause that excuses his failure to raise these issues on appeal, defendant argues that counsel was ineffective with respect to the three issues in question. This argument requires that the Court analyze the three underlying claims and the issue of whether counsel was ineffective.

 Defendant's sentencing entrapment claim was raised on appeal. "Section 2255 generally 'may not be employed to relitigate questions which were raised and considered on direct appeal.'" United States v. DeRewal, 10 F.3d 100, 105 n.4 (3d Cir. 1993) (quoting Barton v. United States, 791 F.2d 265, 267). The Third Circuit has, however, identified four exceptions to that rule: 1) "newly discovered evidence that could not have reasonably have been presented at the original trial," 2) "a change in applicable law," 3) "incompetent prior representation by counsel," 4) "or other circumstances indicating that an accused did not receive full and fair consideration of his federal constitutional and statutory claims." United States v. Palumbo, 608 F.2d 529, 533 (3d Cir. 1979) (citations and footnotes omitted).

 Defendant, apparently forgetting that the sentencing entrapment issue was raised by counsel at sentencing and on appeal, argues only that his sentencing counsel was ineffective in failing to raise this claim in those proceedings. Nevertheless, the Court will address all of the above exceptions to the rule that a § 2255 motion may not be used to relitigate issues raised and considered on direct appeal. *fn1"

 C. Defendant's Ineffective Assistance of Counsel Claim

 1. Standard for Consideration of Ineffectiveness Claims

 Defendant's ineffective assistance of counsel claim is controlled by Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984), in which the Supreme Court of the United States set forth the standard for consideration of such claims. Justice O'Connor wrote that:

 
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment [to the Constitution of the United States]. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be ...

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