The opinion of the court was delivered by: Judge Conner
Presently before the court is defendant's motion to vacate, set aside, or correct her sentence pursuant to 28 U.S.C. § 2255.*fn1 Defendant asserts that she received ineffective assistance of counsel in violation of her Sixth Amendment rights under the United States Constitution. (Doc. 81 at 1.) Specifically, defendant claims that the court erred in calculating her Sentencing Guidelines range and that her counsel provided ineffective assistance by failing to object to alleged sentencing range errors. (Id. at 1-2.) For the reasons that follow, the court will deny defendant's motion.
On September 23, 2004, defendant pled guilty to a superseding information that charged her with one count of unlawful distribution and possession with the intent to distribute cocaine base.*fn2 (See Docs. 38, 39, 42.) The information stated that defendant committed the offense conduct between September 1, 2003 and February 20, 2004. (See Doc. 38.) The presentence report stated that defendant possessed between 150 and 500 grams of cocaine base, resulting in a base offense level of 34. Defense counsel objected to the report's conclusion, and at sentencing the court found that defendant possessed 56.7 grams of cocaine base. (See Doc. 66 at 2-4.) This reduction produced a base offense level of 32. See U.S. SENTENCING GUIDELINES MANUAL § 2D1.1(c)(4) (2004). The court otherwise adopted the findings of the presentence report, which included an additional three-level reduction for defendant's acceptance of responsibility. See id. § 3E1.1(a), (b); (Doc. 66 at 4, 6.) The court also granted the government's motion (Doc. 48) for a five-level downward departure on the basis of substantial assistance pursuant to Sentencing Guidelines § 5K1.1. (See Doc. 66 at 11-12.) These additional reductions resulted in an offense level of 24. (Id. at 8, 12.)
The court also found that defendant had been convicted of prior drug offenses in 1988 and 1993, rendering her a career offender and producing a criminal history category of VI. (Id. at 6, 8, 12.) The resulting sentencing range was 100 to 125 months' imprisonment, and the court imposed a sentence of 110 months. (Id. at 8, 20).*fn3 Defendant now objects to the court's reliance on her 1988 conviction when assigning her career offender status.
Defendant claims that her attorney's performance during the sentencing hearing deprived her of her Sixth Amendment right to counsel. (Doc. 81.) She asserts that counsel provided ineffective assistance by failing to object to the allegedly erroneous reliance on her 1988 conviction when evaluating her career offender status.
To demonstrate ineffective assistance of counsel, defendant must show that counsel's performance "fell below an objective standard of reasonableness" as measured by "prevailing professional norms." Strickland v. Washington, 466 U.S. 668, 688 (1984). The court's review of counsel's performance must be highly deferential, and the mere existence of errors or mistakes is not alone sufficient to prove constitutionally ineffective assistance of counsel. Id. at 689, 691. Second, defendant must establish that she suffered prejudice as a result of this deficient performance. Id. at 692. Defendant must prove that counsel's performance influenced the outcome, demonstrated by a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. Therefore, in order to determine whether counsel's failure to object rises to the level of constitutional ineffectiveness, the court must consider whether calculation of defendant's sentencing range warranted objection.
A defendant qualifies as a career offender if the defendant was at least eighteen years old at the time the defendant committed the instant offense, the instant offense is a controlled substance felony, and the defendant has at least two prior felony convictions for either a crime of violence or a controlled substance offense. U.S. SENTENCING GUIDELINES MANUAL § 4B1.1(a) (2004). "Any prior sentence of imprisonment exceeding [thirteen months] that was imposed within fifteen years of the . . . instant offense is counted" for purposes of this calculation. See id. § 4A1.2(e)(1); id. § 4B1.2 cmt 3 (stating that the provisions of § 4A1.2 apply when calculating career offender status). The length of a sentence is evaluated based on the maximum sentence imposed. Id. § 4A1.2(b)(1). A qualifying sentence imposed outside of the fifteen-year window is also counted if it resulted "in the defendant being incarcerated during any part of such fifteen-year period." See id. § 4A1.2(e)(1).
In the instant matter, the court relied on defendant's 1988 and 1993 drug convictions when adjudicating her career offender status. Defendant alleges that the court improperly relied on her 1988 conviction in performing this analysis. That sentence, imposed on July 11, 1988 after defendant pled guilty to possession with the intent to manufacture or deliver cocaine, imposed a maximum of twenty-three months' imprisonment, exceeding the thirteen-month threshold for consideration toward career offender status. (See Doc. 98 at 1, 11.)*fn4 Hence, the court's consideration of the sentence was proper if either it was imposed or defendant was imprisoned during any portion of the fifteen-year window preceding her conduct associated with the instant offense. See U.S. SENTENCING GUIDELINES MANUAL § 4A1.2(e)(1) (2004).
The superseding information to which defendant pled guilty charges that she commenced the instant offense conduct on or about September 1, 2003. (See Doc. 38.) The fifteen-year window for purposes of her career offender status commenced fifteen years earlier, on September 1, 1988. Defendant was sentenced for the 1988 conviction on July 11 of that year, placing imposition of the sentence outside of the fifteen-year window. (See Doc. 98 at 11.) Hence, the career offender inquiry turns upon whether defendant was imprisoned for the offense on September 1, 1988, when the fifteen-year window commenced.
Defendant's term of imprisonment began on July 15, 1988. (Id. at 1, 11) Defendant served two months' confinement and was then placed on furlough status*fn5 commencing on approximately September 15, 1988. (Id.) While on furlough, she was released from confinement every Sunday at 6:00 p.m. and was required to return to prison at 6:00 p.m. each Friday. (Id. at 1.) She was also required to attend outpatient substance abuse treatment during the weekdays.*fn6 (Id.) She was therefore incarcerated within the fifteen-year window relevant for career offender status.
Accordingly, the court properly relied upon defendant's 1988 conviction to conclude that she qualified as a career offender.*fn7 Defendant may not predicate a claim of ineffective assistance upon counsel's failure to object to a ...