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United States v. Hammonds

United States District Court, M.D. Pennsylvania

February 17, 2017

UNITED STATES OF AMERICA
v.
DAMIEN HAMMONDS, Defendant

          MEMORANDUM

          Christopher C. Conner, United States District Court Chief Judge

         The court sentenced defendant Damien Hammonds (“Hammonds”) to 240 months' imprisonment for distribution and possession with intent to distribute cocaine and conspiracy to distribute cocaine. (Doc. 551). Presently before the court is Hammonds' motion (Doc. 598) to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. Hammonds asserts that he was denied effective assistance of counsel in violation of the Sixth Amendment to the United States Constitution. Hammonds also argues that new law effectuated by the Supreme Court of the United States in Johnson v. United States, 576 U.S. __, 135 S.Ct. 2511 (2015), invalidates his sentence. The court will deny the motion, but will refer the Johnson issue to the Federal Public Defender's Office for further consideration.

         I. Factual Background & Procedural History

         On May 4, 2011, a grand jury returned an indictment (Doc. 1) charging Hammonds and co-defendants Michael Hansley (“Hansley”), Shawn Stern, James Hughes, Laquann Clark, Brian McCullough, Ali Brown, Marcelino Calderon-Ortiz (“Ortiz”), and Richard Rondon-Diaz with manufacturing, distributing, and possessing with intent to manufacture and distribute cocaine base and cocaine hydrochloride in violation of 18 U.S.C. § 2 and 21 U.S.C. § 841(a)(1) (Count 1) and conspiracy to manufacture, distribute, or possess with the intent to manufacture or distribute cocaine base and cocaine hydrochloride in violation of 21 U.S.C. § 846 (Count II). On May 6, 2011, Hammonds entered a plea of not guilty to all charges. (Doc. 47). The court initially appointed Daniel M. Myshin as counsel on his behalf. (Doc. 55). William Fetterhoff (“trial counsel”) ultimately represented Hammonds at trial. (Docs. 291, 295).

         Hammonds' trial commenced on April 10, 2013 and continued for four days. (Docs. 559-62). Evidence at trial generally established that Hammonds was involved in a drug-trafficking conspiracy with at least four other individuals. The government adduced multiple witnesses at trial, including Hansley, Marshall Everett (“Everett”), Tracey White (“White”), and Ortiz, all associates of Hammonds. (See Docs. 560-61). Hansley testified that Hammonds was his source of drugs beginning in May 2010 until January or February of 2011. (Doc. 560 at 56:15-23, 63:8-23). He described Hammonds' prices, his own profits, and a network through which he resold Hammonds' drugs. (Id. at 69:9-72:14, 75:9-76:6). Everett testified that Hammonds sold large quantities of drugs with at least two partners, one being Hansley. (Id. at 108:4-109:21, 135:14-136:23). Everett stated that he sold drugs for Hammonds and acted as his bodyguard beginning in early 2011 and until Everett's arrest in March 2011. (Id. at 104:13-105:5, 113:1-23, 115:17-116:10, 120:25-121:21, 125:18-126:7, 139:3-21).

         White testified that he bought drugs from Hammonds on several occasions between January 2011 and April 2011. (Id. at 152:22-155:1, 178:18-180:9). White described a controlled buy that law enforcement arranged between him and Hammonds. (Id. at 155:8-161:15). White also explained his involvement in Hammonds' subsequent arrest. (Id. at 161:15-164:18, 180:21-181:23). The government entered a lab report into evidence verifying that the substance from said controlled buy was cocaine. (Doc. 561 at 3:13-6:8, 111:24-112:8). Agent William Cook (“Agent Cook”) summarized the contents of the lab report. (Id. at 3:13-6:8). Ortiz testified concerning a botched attempt to purchase drugs in Puerto Rico in June 2010, as well as his drug transactions with Hammonds upon their return to Harrisburg, Pennsylvania. (Id. at 33:11-54:25, 70:15-21; see also Id. at 84:18-100:21).

         The government argued to the jury that this consociate testimony, coupled with evidence provided by law enforcement officers and other witnesses, proved beyond a reasonable doubt that Hammonds not only possessed and manufactured drugs, but was also involved in a single, overarching drug conspiracy from May 2010 until May 2011. (See Doc. 562 at 16:21-21:1). The jury found Hammonds guilty on both counts. (See Doc. 459).

         The government filed an information charging a prior felony conviction pursuant to 21 U.S.C. § 851, triggering a mandatory minimum sentence of twenty years. (Doc. 427). The United States Probation Office thereafter prepared a presentence report. The report designates Hammonds a career offender under United States Sentencing Guidelines § 4B1.1 based on a prior felony drug conviction and an aggravated assault conviction. U.S.S.G. § 4B1.1; (PSR ¶¶ 22, 26, 28). The probation officer calculated a total offense level of 40 with a criminal history category of VI. (PSR ¶¶ 16-24, 30). At sentencing on November 21, 2013, the court overruled trial counsel's objections to the drug weight calculation, possession of a firearm enhancement, and leadership role enhancement. (Doc. 563 at 4:18-6:12, 12:22). The court then adopted the Guidelines range of 340 months to life from the presentence report. (Id. at 12:22-13:1). After considering the salient 18 U.S.C. § 3553(a) factors, the court varied downward from the Guidelines range and imposed a sentence of 240 months, the mandatory minimum sentence. (See Doc. 551; Doc. 563 at 23:11-26:10).

         Hammonds filed a notice of appeal with the United States Court of Appeals for the Third Circuit on December 3, 2013. (Doc. 554). On July 9, 2014, the Third Circuit affirmed Hammonds' conviction and sentence. United States v. Hammonds, 572 F. App'x 126, 133 (3d Cir. 2014) (nonprecedential). Hammonds timely filed the instant motion (Doc. 598) to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 on November 4, 2015. The motion is fully briefed (Docs. 601-02) and ripe for disposition.

         II. Legal Standard

         Under 28 U.S.C. § 2255, a federal prisoner may move the sentencing court to vacate, set aside, or correct the prisoner's sentence. In general, relief under § 2255 is afforded based on one of four grounds: (1) the sentence was imposed in violation of the Constitution or other federal laws; (2) the sentencing court lacked jurisdiction to impose the sentence; (3) the sentence exceeds the maximum authorized by law; or (4) the sentence is otherwise subject to collateral attack. R. Governing § 2255 Cases R. 1(a). “When reviewing a motion pursuant to § 2255, the court must accept the truth of the petitioner's allegations unless clearly frivolous based on the existing record.” United States v. Booth, 432 F.3d 542, 545 (3d Cir. 2005).

         III. Discussion

         Hammonds asserts several different grounds in support of his request for § 2255 relief, as follows: trial counsel was ineffective in failing to object to the admission of the lab report at trial, request proper jury instructions, challenge the increased mandatory minimum sentence, object to a fatal variance between the indictment and the government's trial evidence, and cross-examine the case agent at trial. He also contends that his designation as a career offender is improper under the residual clause of § 4B1.1. The court considers these issues seriatim.

         A. Ineffective ...


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