United States District Court, Western District of Pennsylvania
MEMORANDUM ORDER RE: PRO SE DEFENDANT’S MOTION TO VACATE UNDER 28 U.S.C. § 2255 (DOC. NO. 1359)
Arthur J. Schwab United States District Judge
In early 2011, Lamont Hunter (“Defendant”), along with 24 others, was indicted for his role in a heroin distribution ring based in Pittsburgh, Pennsylvania. Defendant was charged with one count of conspiracy to distribute and possess with the intent to distribute one kilogram or more of heroin, a schedule I controlled substance, in violation of 21 U.S.C. § 846. Doc. Nos. 1 and 273. In July 2012, the Court entered a Pretrial Order and scheduled jury selection and trial to commence on October 29, 2012. Doc. No. 965. On October 14, 2012, Defendant, through counsel, filed a Waiver of Right to Trial by Jury, in which he notified the Court and Government counsel of his desire to have the case proceed as a bench trial. Doc. No. 1073. On October 22, 2012, the Court held a preliminary pretrial hearing during which Defendant (and his 2 remaining Co-Defendants) waived his right to jury trial. Doc. No. 1100.
The case did not proceed to trial. On October 26, 2012, Defendant withdrew his plea of not guilty and pled guilty to Count 1 of the Superseding Indictment. Doc. No. 1120. There was no plea agreement in Defendant’s case. Id. On February 11, 2013, Defendant was sentenced by this Court to 188 months imprisonment to be followed by a 5 year term of supervised release. Doc. No. 1242. After the Court issued Tentative Findings and Rulings, the applicable advisory guideline range, based upon an offense level of 33 and a criminal history category III, was 168 to 210 months imprisonment. Doc. No. 1235. Defendant’s offense level was enhanced three levels, pursuant to § 3B1.1(b) of the United States Sentencing Guidelines, for Defendant’s role as a manager or organizer of the conspiracy. This enhancement was primarily based on Defendant’s direction of other individuals who bagged drugs the Defendant received and Defendant’s instruction of Clayton Bonner, a co-conspirator, who regularly purchased boxes of empty stamp bags.
Defendant appealed his sentence to the United States Court of Appeals for the Third Circuit. Doc. No. 1261. Specifically, Defendant appealed this Court’s application of a three-level enhancement to his offense level pursuant to § 3B1.1(b). Defendant’s sentence, including the § 3B1.1(b) enhancement was affirmed by the United States Court of Appeals for the Third Circuit. Doc. Nos. 1338, 1345.
Presently before this Court is Defendant’s Motion to Vacate Under 28 U.S.C. § 2255 in which Defendant moves this Court to convene a hearing to enable him to prove that he was prejudiced by his attorney’s inadequate representation and then vacate his sentence and re-sentence him without an enhancement pursuant to § 3B1.1(b) for his role as a manager or organizer of a conspiracy. Defendant contends that his counsel was ineffective because:
(1) counsel was informed that Defendant never gave co-conspirators drugs to package;
(2) counsel failed to call co-conspirators who Defendant allegedly instructed to package drugs as witnesses during Defendant’s sentencing hearing; and
(3) counsel gave Defendant erroneous advice prior to his change of plea hearing that he would be sentenced to 120 months imprisonment.
The Government opposes this Motion. Doc. No. 1362.
In essence, Defendant contends that an enhancement pursuant to § 3B1.1(b) is not warranted and would not have been applied if his counsel had called his co-conspirator, Clayton Bonner, to testify during his sentencing hearing. Doc. No. 1360. However, as stated on the record during his change of plea hearing, as set forth by the Court in its Tentative Findings and Rulings, and as noted by the United States Court of Appeals for the Third Circuit in its Memorandum Opinion, Defendant did not object to the factual circumstances that support the §3B1.1 enhancement. His attempt to assail actions that he previously admitted he undertook, while under oath, renders his present Motion meritless.
During the October 26, 2012, change of plea hearing, the Court instructed the Government to proffer the evidence that it would intend to offer if the case proceeded to trial. See Doc. No. 1202, 16. In pertinent part, the Assistant United States Attorney set forth that:
During the time period listed in the superseding indictment, [a] source supplied Mr. Hunter with unbagged heroin on about ten occasions. Each occasion involved between 25 and 200 grams of ...