The opinion of the court was delivered by: DuBOIS, J.
Defendant Rodney Law is serving a 130-month sentence in federal custody for his conviction of possession of cocaine base ("crack") with intent to distribute. Presently before the Court is defendant's pro se Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody. The motion presents one claim of ineffective assistance of counsel at sentencing. Specifically, defendant alleges that his attorney failed to request that the Court run defendant's federal sentence concurrently with his then-undischarged state sentence or grant a downward departure to account for time defendant had already served on the state sentence. For the reasons that follow, the Court denies the motion.
The background of this case is set forth in detail in prior opinions of this Court and the Third Circuit. See United States v. Law, 384 F. App'x 121 (3d Cir. 2010); United States v. Law, No. 08-77, 2008 WL 1776422 (E.D. Pa. Apr. 17, 2008); United States v. Law, 526 F. Supp. 2d 513 (E.D. Pa. 2007); United States v. Law, No. 05-78, 2005 WL 3464449 (E.D. Pa. Dec. 16, 2005). The background will be repeated in this Memorandum only as necessary to explain the Court's ruling on the instant motion.
A federal grand jury returned an Indictment on February 7, 2008, charging defendant with possession of cocaine base ("crack") with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B) ("Count One"); possession of a controlled substance with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C) ("Count Two"); possession of a firearm in furtherance of a drug trafficking offense, in violation of 18 U.S.C. § 924(c)(1)(A) ("Count Three"); and being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1) ("Count Four").*fn1 Defendant proceeded to trial, and on April 23, 2008, the jury returned a guilty verdict on Counts One and Two. The jury acquitted him of Count Three, and the Court acquitted him of Count Four.
Defendant was sentenced on August 28, 2008. The Presentence
Investigation Report ("PSR") stated that defendant had a total offense
level of thirty-six and a Criminal History Category of VI, with a
resulting guideline sentencing range of 324 to 405 months.*fn2
This calculation was premised on a base offense level of
twenty-eight for the crimes of conviction, a two-level enhancement for
possession of a dangerous weapon, a six-level enhancement
defendant's assault on a police officer during his arrest,*fn3
and a determination that defendant was a career
At the sentencing hearing, the Court rejected several of the sentencing recommendations made in the PSR, shortening defendant's sentence substantially. First, the Court determined that there was insufficient evidence to support the proposed two-level enhancement for possession of a dangerous weapon. (See 8/28/08 Hr'g Tr. 13.) Second, the Court rejected the proposed six-level enhancement for assaulting a police officer. (Id. at 19.) The Court reasoned that, although there was evidence that defendant had pushed or otherwise touched one of the officers involved in his arrest, "the drafters of the guidelines had in mind a more significant assault" when they formulated the enhancement. (Id.) In lieu of applying that enhancement, the Court stated that it would "take [defendant's] conduct into consideration in determining where within the guideline range" to sentence him. (Id.) Third, the Court decreased the base offense level from twenty-eight to twenty-six to account for the retroactive crack cocaine amendment. (Id. at 20-21.) Finally, the Court rejected the government's argument that defendant was a career offender. (Id. at 24-25.)
As a result of all these rulings, the Court determined that defendant's total offense level was twenty-six. In Criminal History Category V, that resulted in a guideline range of 110 to 137 months-approximately one-third the range recommended in the PSR and advocated by the government. The Court sentenced defendant to 130 months' imprisonment, four years' supervised release, and a $1000 fine. The Court informed defendant that, had he not assaulted an officer, he would have received a sentence of 110 months, at the bottom of the guideline range. (Id. at 44.) Continuing, the Court stated, "I'm going to increase the sentence to 130 months from 110 to 130. I'm not going to sentence you at the very high end of the guidelines but you're going to spend 20 additional months, 110 to 130, in custody because of what you did to the police officer. You just can't do that." (Id. at 44-45.)
At the end of the sentencing proceeding, defense counsel thanked the Court "on behalf of Mr. Law who . . . found [the Court] immensely fair." (Id. at 52.) Defense counsel stated that he had told defendant that "he got a tremendous break from where they wanted to come to 300 months to where he wound up, 130 months." (Id. at 52-53.)The Third Circuit affirmed the reasonableness of the sentence on appeal, rejecting defendant's argument that the sentence did not adequately account for the disparity in punishments for offenses involving cocaine and offenses involving crack. Law, 384 F. App'x at 124.
At the time of his federal sentencing, defendant had already begun to serve a sentence on unrelated state charges. He was convicted on April 23, 2004, in the Court of Common Pleas of Philadelphia County of carrying firearms without a license and being a felon in possession of a firearm.*fn4 On March 22, 2006, he was sentenced to one-and-a-half to three years' imprisonment and five years' probation on those charges, and he began serving that sentence immediately. He was transferred, on a writ, from the Graterford State Correctional Institution to the Federal Detention Center in Philadelphia on April 21, 2008. When this Court sentenced defendant on the federal charges, a maximum of approximately seven months' imprisonment remained on his state sentence.
At defendant's federal sentencing proceeding, there was no mention of the undischarged state sentence. The PSR noted the state conviction and sentence but did not discuss how they might interact with the federal sentence. Defendant and the government now agree that defendant completed his state sentence on March 29, 2009, having served the maximum three-year term of imprisonment. (See Decl. of Rodney Law ¶ 9, Def.'s Reply Ex. A; Gov't Resp. 14 n.2.) Because "[m]ultiple terms of imprisonment imposed at different times run consecutively" ...