United States District Court, M.D. Pennsylvania
Christopher C. Conner, United States District Court Chief
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
Factual Background & Procedural History
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).
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).
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).
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).
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).
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
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).
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.