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United States v. Lowery

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA


December 16, 2008

UNITED STATES OF AMERICA
v.
RICHARD LOWERY

The opinion of the court was delivered by: Kauffman, J.

MEMORANDUM AND ORDER

Now before the Court is Petitioner's pro se Motion Pursuant to 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (the "Motion"). For the reasons discussed below, the Motion will be denied.

I. BACKGROUND

On October 7, 1999, Petitioner Richard Lowery ("Petitioner") entered a plea of guilty to one count of being an armed career criminal in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1), 924(e). During the plea colloquy, Petitioner admitted that he unlawfully possessed a loaded Uzi semiautomatic weapon on August 13, 1997 in connection with a crime of violence At the plea hearing, he agreed with the Government that as part of the offense conduct in this case, he fired the Uzi at the two arresting officers. See Oct. 7, 1999 Plea Hr'g Tr. 23-32 (presenting the facts the Government was prepared to prove at trial, including its conclusion that "at some point, the defendant fired the Uzi at the officers"); see also id. at 33 ("THE COURT: And let me ask Mr. Lowery, you've just heard [the Government] summarize the facts that [it] would be prepared to prove at trial. Do you agree that the Government has accurately summarized the facts? THE DEFENDANT: Yeah.").

On April 10, 2000, this Court held a sentencing hearing. At that hearing, the parties agreed that based on Petitioner's total offense level of 31 and criminal history category of VI, the appropriate guideline range was 188 to 235 months. In determining the total offense level, the Court calculated Petitioner's base offense level as 34 pursuant to U.S.S.G. § 4B1.4(b)(3)(A) for use or possession of a firearm in connection with a crime of violence, based on the finding that he fired the Uzi at police officers.*fn1 This base offense level was reduced to a total offense level of 31 based on Petitioner's acceptance of responsibility. After hearing presentations from the parties and testimony from witnesses in support of Petitioner, the Court sentenced him to a term of 215 months of imprisonment, to be followed by five years of supervised release.

On March 20, 2001, Petitioner filed a pro se Motion Pursuant to 28 U.S.C. § 2555 to Vacate, Set Aside, or Correct Sentence. In that motion, he argued, inter alia, that his trial counsel was ineffective for failing to file a direct appeal.*fn2 On November 23, 2004, after an evidentiary hearing, the Court reinstated Petitioner's right to perfect a timely appeal.*fn3 On appeal, Petitioner successfully argued that he was entitled to a resentencing hearing in light of United States v. Booker, 543 U.S. 220 (2005). See United States v. Lowery, 161 F. App'x 226, 227 (3d Cir. 2006).*fn4

On July 19, 2006, the Court held a resentencing hearing. In Petitioner's Resentencing Memorandum and at the resentencing hearing itself, Petitioner argued that the Government failed to prove by a preponderance of the evidence that he had fired the Uzi at the arresting officers. He claimed that as he attempted to remove the Uzi from his waistband, the gun discharged into his leg. The Court overruled Petitioner's objection and adopted the conclusion in the presentence investigation report that he had fired the weapon at the police officers. Accordingly, the Court found a base offense level of 34 pursuant to U.S.S.G. § 4B1.4(b)(3)(A) and reduced the offense level by three based on Petitioner's acceptance of responsibility, resulting in a total offense level of 31. Based on a criminal history category of VI, Petitioner's guideline range remained 188 to 235 months. The Court then resentenced Petitioner to 200 months of imprisonment, to be followed by three years of supervised release.

II. DISCUSSION

In the instant Motion, Petitioner argues that at his original sentencing hearing, his trial counsel failed to object to the inaccurate statement in the presentence investigation report that he fired the Uzi at the police officers. According to Petitioner, this failure deprived him of the right to effective assistance of counsel guaranteed by the Sixth Amendment.

In order to prevail, Petitioner must prove (a) deficient performance by counsel and (b) actual prejudice as a result of the deficient performance. Strickland v. Washington, 466 U.S. 668, 687 (1984); see also Buehl v. Vaughn, 166 F.3d 163, 173-74 (3d Cir. 1999). To satisfy the first prong of Strickland, Petitioner must show that his counsel's representation fell below an "objective standard of reasonableness." 466 U.S. at 688. The Court "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, [Petitioner] must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'" Id. at 689. Under the second prong of the Strickland test, "[i]t is not enough for [Petitioner] to show that the errors had some conceivable effect on the outcome of the proceeding." Id. at 693. The question, instead, is whether "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694.

Petitioner fails to meet either prong of the Strickland test. The Court rejects his argument that trial counsel was deficient for failing to object to the presentence investigation report. At the resentencing hearing, Petitioner's resentencing counsel objected strenuously to the report's conclusion that Petitioner fired the Uzi. After reviewing resentencing counsel's written arguments in the Resentencing Memorandum and considering counsel's oral arguments at the sentencing hearing, the Court overruled the objection and concluded that the Government met its burden by a preponderance of the evidence. Because the Court determined that the objection lacked merit at the resentencing hearing, it cannot conclude that Petitioner's trial counsel was ineffective for failure to raise the objection at the original sentencing hearing. See, e.g., Moore v. Deputy Comm'rs of SCI-Huntingdon, 946 F.2d 236, 245 (3d Cir. 1991) (explaining that trial counsel could not be ineffective for failing to object to a jury charge where that charge was justified based on the evidence presented); Sheppard v. Diguglielmo, 2005 U.S. Dist. LEXIS 39258, at *12 (E.D. Pa. Dec. 22, 2005) (explaining that under Strickland, "counsel's performance cannot be deemed objectively unreasonable for failing to raise a meritless claim").

Moreover, Petitioner cannot prove prejudice resulting from trial counsel's allegedly deficient performance during the original sentencing hearing. As discussed above, the Third Circuit remanded this case for a full resentencing in light of Booker. Accordingly, Petitioner is not serving the allegedly prejudicial sentence imposed at his initial sentencing hearing. Rather, he is serving a sentence imposed after resentencing counsel submitted pages of documentary evidence and made lengthy presentations to the Court in objecting to the presentence investigation report. Petitioner makes no argument that trial counsel's failure to object in any way inhibited resentencing counsel's ability to object to the report. Because any prejudice Petitioner allegedly suffered dissipated once his original sentence was vacated, the Court concludes that he has failed to satisfy the second Strickland requirement.*fn5

III. CONCLUSION

For the reasons discussed above, the Court concludes that Petitioner has failed to establish either element of his ineffective assistance of counsel claim.*fn6 Because Petitioner has not made the requisite showing of the denial of a constitutional right, a certificate of appealability should not issue. See Slack v. McDaniel, 529 U.S. 473, 484 (2000). An appropriate Order follows.

ORDER

AND NOW, this 16th day of December, 2008,upon consideration of Petitioner's Motion Pursuant to 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (docket no. 68) and all responses thereto, and for the reasons stated in the accompanying memorandum, it is ORDERED that:

(1) The Motion is DENIED.

(2) Petitioner's Motion for an Evidentiary Hearing (docket no. 82) is DENIED.

(3) The Clerk of the Court shall mark Civil Action No. 07-817 CLOSED.

(4) Because there is no probable cause to issue a certificate of appealability, no certificate of appealability shall issue.

BRUCE W. KAUFFMAN, J.


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