The opinion of the court was delivered by: Arthur J. Schwab United States District Judge
Before the Court is the petitioner Kevin L. Gray's Motion under 28 U.S.C. §2255 to Vacate, Set Aside, or Correct Sentence By a Person in Federal Custody (Document No. 277), accompanied by his Memorandum of Law in Support of Motion Pursuant to 28 U.S.C. §2255. After careful consideration of petitioner's motion and memorandum and the government's response thereto, and the entire record in the case, including notes of testimony from the sentencing hearing and the decision of the United States Court of Appeals for the Third Circuit, the Court will deny petitioner's motion for relief pursuant to 28 U.S.C. §2255.
On September 20, 2004, a federal grand jury sitting in the Western District of Pennsylvania returned a superseding indictment charging Kevin L. Gray, Terrance L. Cole, and Quincy L. Jones with conspiracy to distribute and possess with the intent to distribute 5 kilograms or more of cocaine in violation of 21 U.S.C. §§ 841 and 846.
On March 15, 2005, the jury convicted the petitioner of the lesser included offense of conspiracy to distribute and possess with intent to distribute at least 500 grams, but less than 5 kilograms, of cocaine.
Petitioner's counsel, Joseph K. Williams III, filed multiple objections to the Presentence Investigation Report ("PSR") (Document No. 136) on May 31, 2005, in which he raised the following issues: objection to PSR conclusion that defendant was involved in distribution of at least 3.5 kilograms of cocaine, reduction for acceptance of responsibility pursuant to U.S.S.G. §3E1.1, eligibility for minor role reduction pursuant to U.S.S.G. §3B1.2, and eligibility for a downward departure pursuant to U.S.S.G. §5C1.2.
At the sentencing hearing on June 27, 2005, counsel again challenged the amount of cocaine for which Gray was to be held responsible, and argued that various downward adjustments to the Sentencing Guidelines should be applied, including minor role, acceptance of responsibility, and safety valve.
District Judge Thomas M. Hardiman overruled the Defendant's objections and stated his findings on the record.*fn1 The Court concluded that the Defendant's involvement with the distribution of at least 3.5 kilograms was easily supported by a preponderance of the evidence. Judge Hardiman noted Garry Smith's testimony in which he stated that Tommy Gilliam and Gray "were repeatedly involved in kilo deals." (Sentencing Transcript ("S.T"), June 27, 2008 (Document No. 183) at 6). Also, the Court referenced Gilliam's testimony "that Mr. Gilliam had conducted drug transactions at Mr. Gray's house more than 50 times and that Mr. Gray usually obtained between one and five kilograms at a time." (S.T. at 7).
Judge Hardiman also stated his findings in support of the denial of the downward departures.
The Court declined to grant a reduction for acceptance of responsibility under U.S.S.G. §3E1.1 because it would "be contrary to Application Note number 2." (S.T. at 8) (See U.S.S.G. §3E1.1, Application Note 2). The Defendant was not a candidate for this departure because he had put the Government to its burden of proof, "went to trial and argued that he was not guilty." (S.T. at 8).
The Court found that U.S.S.G. §3B1.2 was not available to the Defendant upon review of Note 3(B). The Note essentially provides that a Defendant who has been convicted of an offense significantly less serious than warranted by his actual criminal conduct should not ordinarily receive a reduction because such a Defendant is not substantially less culpable than any defendant whose conduct involved the less serious offense. See U.S.S.G §3B1.2, Application Note 3(B). The Defendant was disqualified from application of the acceptance of responsibility provision because "he was convicted of the much lesser offense of distribution between 500 grams and five kilograms, and there is no evidence to suggest that his role in these transactions was any less serious than that of the average defendant convicted of distributing these quantities." (S.T. at 10).
As to the Defendant's final argument that he was eligible for a downward departure pursuant to U.S.S.G §5C1.2, the Court accepted the Government's representation that the Defendant had yet to "truthfully provide to the Court all information and evidence the Defendant has concerning the offense or offenses that were part of the same course of conduct" as required by §5C1.2(a)(5). (S.T. at 10).
Before passing sentence, the Court noted that the Guidelines were advisory under United States v. Booker, 543 U.S. 220 (2005). The Court determined that there was sufficient evidence to conclude the amount of cocaine attributable to Gray was between 3.5 and 5 kilograms, which resulted in a Guidelines offense level of 30, and a sentencing range of 97-121 months in prison. The Court applied the bottom of the range, sentencing the Defendant to 97 months of imprisonment, to be followed by a five-year term of supervised release.
In his appeal, filed by new counsel on June 29, 2005, petitioner claimed that the District Court erred in calculating his sentence under the Guidelines. The Court of Appeals for the Third Circuit referred to the two-step inquiry the District Court must make when sentencing a Defendant:
First, the Court must correctly calculate the defendant's recommended sentence under the Guidelines, applying a preponderance of the evidence standard to the determination of sentencing fact. Next, the Court must decide whether the Guidelines sentence comports with the other facts set forth in 18 U.S.C. §3553(a), and thus determine whether to follow the Guidelines recommendation.
United States v. Gray, 176 Fed. Appx. 315, 316 (3d Cir. 2006) (citing United States v. Cooper, 437 F.3d 324, 330 (3d Cir. 2006)). The Court of Appeals reviews the resulting sentence for reasonableness and accepts the District Court's determination of sentencing facts unless it is clearly erroneous. Gray, 176 Fed. Appx. at 316 (citing United States v. Booker, 543 U.S. 220, 261 (2005); United States v. Irvin, 369 F.3d 284, 286 n.2 (3d Cir. 2001)).
In reviewing the testimony of the case, the Court of Appeals determined that there was "no doubt that the District Court's determination of drug quantity was not clearly erroneous." Id. at 317. In reaching this conclusion, the Court cited Gilliam's testimony "about specific occasions when he sold Gray two kilograms of Cole's cocaine and Smith sold Gray about 1.25 kilograms" and his statement that "he sold 'one or two' kilograms of Cole's cocaine to Gray 'over 50 times.'" Id.
The sentence was affirmed on May 12, 2006.
III. MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE PURSUANT TO SECTION 2255
Petitioner filed this timely motion for relief under section 2255 alleging ineffective assistance of counsel and challenging the sentence for reasonableness, and the government filed its response. Petitioner raises two specific claims of ineffective assistance of trial counsel in his motion: A. "Counsel failed to require that the jury find the specific drug amount for which he was to be held accountable rather than leaving it up to the Court to be found by a preponderance of the evidence."; and B. "Failed to argue for a non-guideline sentence pursuant to the High Court's decision in United States v. Booker."
Petitioner also raises five specific claims of ineffective assistance of appellate counsel in his motion: A. "Counsel failed to argue that the District Court violated petitioner's Sixth Amendment right in holding responsible for drug amounts that were not found by a jury or proven beyond a reasonable doubt."; B. "Failed to argue that the sentence imposed by the District Court was unreasonable."; C. "Failed to challenge the District Court's denial of a sentence reduction for acceptance of responsibility pursuant to U.S.S.G. §3E1.1."; D. "Failed to challenge the District Court's denial of a minor role reduction pursuant to U.S.S.G §3B1.2."; and E. "Failed to challenge the District Court's denial of a downward departure pursuant to U.S.S.G. §5C1.2."
In petitioner's final claim he alleges that "The Guidelines sentence imposed by the District Court was unreasonable." Petitioner states that he raises the issue in order to "preserve it for future litigation since the United States Supreme Court is considering the issue of reasonableness in the case of Rita v. United States, No. 06-5754, cert. granted (Nov. 3, 2006)." (Rita v. United States, 127 S.Ct. 2456 ...