Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Bara

United States District Court, W.D. Pennsylvania

March 1, 2017

BRANDY MARIE BARA, Defendant. Criminal No. 14-178




         This matter is before the Court on a Motion to Vacate under 28 U.S.C. § 2255 (“Motion”) filed by pro se Defendant Brandy Marie Bara (“Defendant”), (Docket No. 466), and Brief in Support, (Docket No. 468), which is opposed by the Government, (Docket No. 476). After careful consideration of the parties' arguments, and for the following reasons, Defendant's § 2255 Motion [466] is denied.


         A federal grand jury returned a Superseding Indictment against Defendant on October 7, 2014, charging her with: one count of conspiracy to possess with intent to distribute and distribute a quantity of oxycodone from in and around the spring of 2011 until on or about July 10, 2014, in violation of 21 U.S.C. § 846 (Count One); one count of attempt to possess with intent to distribute a quantity of oxycodone on May 27, 2014, in violation of 21 U.S.C. § 846 (Count Three); one count of possession with the intent to distribute and distribution of a quantity of oxycodone on June 5, 2014, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C) and 18 U.S.C. § 2 (Count Four); one count of possession with the intent to distribute and distribution of a quantity of oxycodone on June 30, 2014, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C) (Count Five); and one count of possession with the intent to distribute a quantity of oxycodone on July 10, 2014, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C) (Count Seven). (Docket No. 147). At her request, Defendant was appointed counsel under the Criminal Justice Act, i.e., Assistant Public Defender Linda E.J. Cohn, of the Office of the Federal Public Defender for the Western District of Pennsylvania. (Docket Nos. 18, 19, 33, 77). Thereafter, the parties advised the Court that they had reached a plea agreement resolving the matter short of trial. (See Docket No. 252).

         Defendant subsequently appeared before this Court for a change-of-plea proceeding on April 14, 2015, and after conducting an extensive colloquy to confirm that Defendant was competent, understood the Constitutional and other rights that she was waiving by entering a guilty plea, and was knowingly and voluntarily pleading guilty, the Court accepted her guilty plea to Count One. (See Docket Nos. 271, 272).[1] During the proceeding, the Court was presented with a fully executed Rule 11(c)(1)(C) plea agreement for a stipulated sentence of eighty-four months' incarceration signed by the parties, including Defendant and her counsel. The Court addressed the terms of the plea agreement directly with Defendant, who assented, under oath, that: she had discussed all relevant matters pertaining to the plea agreement with her counsel; and, she was knowingly and voluntarily accepting the terms of the plea agreement and the waivers contained therein, including waiving her right to appeal the judgment and sentence to the Court of Appeals. She also confirmed that she was agreeing to the specific term of eighty- four months' incarceration.

         As part of the presentence process, Defendant objected to the Probation Office's conclusion that a two-level enhancement applied under Guideline § 2D1.1(b)(1) for her possession of a firearm and to the factual summary of one of her prior convictions. (Docket No. 320). The Court overruled her objections to same for reasons set forth fully in its Tentative Findings and Rulings of July 21, 2015. (Docket No. 333). With respect to Defendant's first objection, the Court, in applying the well-settled law of the Third Circuit, determined that Guideline § 2D1.1(b)(1) was applicable based upon the totality of the circumstances present in the case. (Id. at 4-5). Specifically, the Court found that the Government had met its initial burden of production because there was a sufficient temporal and spatial relation between the firearm and the drug trafficking to demonstrate by a preponderance of the evidence that the enhancement should be applied. (Id. at 5-6). The Court rejected Defendant's argument that she lawfully possessed the firearm to protect her from a former abusive boyfriend against whom she had obtained a Protection From Abuse Order, explaining that the Third Circuit has held that the lawful acquisition and possession of a firearm does not preclude the application of the enhancement. (Id. at 6). Because Defendant had failed to demonstrate that the drug-weapon connection was “clearly improbable, ” the Court overruled her objection. (Id. at 7). The Court noted, however, that the enhancement would have no bearing on Defendant's sentence if the Court accepted their plea agreement for a specific sentence of eighty-four months' incarceration. (Id. at 4). The Court also overruled Defendant's second objection, finding that the factual disputes would have no impact on Defendant's sentence because she was assessed 0 criminal history points and remained in a criminal history category I. (Id. at 7-8). Based upon the guidelines calculations, the Court determined that the advisory guideline range for imprisonment was 108-135 months. (Id. at 10).

         At the sentencing hearing on October 19, 2015, the Court accepted the parties' Rule 11(c)(1)(C) plea agreement, and Defendant was sentenced to eighty-four months' incarceration; three years' supervised release; and a $100.00 special assessment. (Docket No. 385). Defendant did not appeal her sentence.

         Defendant filed her pro se Motion and supporting Brief on August 16, 2016. (Docket Nos. 466, 468). The Court issued an Order on August 16, 2016, advising Defendant of her right to elect if the Court should resolve the pending motion or if she wished to file an all-inclusive § 2255 motion within thirty days. (Docket No. 469). After Defendant filed a response to the Court's Order, wherein she requested the right to amend her motion within 120 days, the Court ordered Defendant to file any amendments to her motion by December 29, 2016. (Docket Nos. 470, 471). Because Defendant did not file any amendments to her motion, the Court ordered the Government to file a response, which was filed on February 10, 2017. (Docket Nos. 472, 476). Hence, this matter is now ripe for review.


         A prisoner in federal custody may move to vacate his or her sentence under 28 U.S.C. § 2255(a) if such “sentence was imposed in violation of the Constitution or laws of the United States.” 28 U.S.C. § 2255(a). “A prisoner seeking relief on the grounds of ineffective assistance of counsel bears the burden to demonstrate two requirements, ” United States v. Seeley, 574 F. App'x 75, 78 (3d Cir. 2014), which were initially set forth by the Supreme Court of the United States in Strickland v. Washington, 466 U.S. 668 (1984). To prevail on a claim of ineffective assistance of counsel under Strickland, a defendant “must establish that (1) the performance of counsel fell below an objective standard of reasonableness; and, (2) counsel's deficient performance prejudiced the defense.” United States v. Otero, 502 F.3d 331, 334 (3d Cir. 2007) (citing Strickland, 466 U.S. at 687-88); see also Roe v. Flores-Ortega, 528 U.S. 470, 476-477 (2000) (citing Strickland, 466 U.S. at 688, 694) (same). The United States Court of Appeals for the Third Circuit has “endorsed the practical suggestion in Strickland [that the Court may] consider the prejudice prong before examining the performance of counsel prong ‘because this course of action is less burdensome to defense counsel.'” United States v. Lilly, 536 F.3d 190, 196 (3d Cir. 2008) (quoting United States v. Booth, 432 F.3d 542, 546 (3d Cir. 2005), which quoted United States v. McCoy, 410 F.3d 124, 132 n.6 (3d Cir. 2005)); see also Strickland, 466 U.S. at 697 (“If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.”).

         Generally, a district court must order an evidentiary hearing in a federal habeas case if a criminal defendant's § 2255 allegations raise an issue of material fact. United States v. Biberfeld, 957 F.2d 98, 102 (3d Cir. 1992). But, if there is “no legally cognizable claim or the factual matters raised by the motion may be susceptible of resolution through the district judge's review of the motion and records in the case, ” the motion may be decided without a hearing. United States v. Costanzo, 625 F.2d 465, 470 (3d Cir. 1980); see also Lilly, 536 F.3d at 195. If a hearing is not held, the district judge must accept the criminal defendant's allegations as true “unless they are clearly frivolous on the basis of the existing record.” Gov't of Virgin Islands v. Bradshaw, 726 F.2d 115, 117 (3d Cir. 1984). Similarly, “‘vague and conclusory allegations contained in a § 2255 petition may be disposed of without further investigation.'” United States v. Knight, Nos. 03-CV-416, 98-CR-3, 2009 WL 275596, at *13 (W.D. Pa. Feb. 4, 2009) (quoting United States v. Thomas, 221 F.3d 430, 437 (3d Cir. 2000)).


         Defendant argues that her § 2255 Motion should be granted because her counsel was ineffective. (Docket Nos. 466, 468). She also asserts that her sentence is disproportionate to her husband's sentence and that her sentence should be reduced for her minor role and post-sentence rehabilitation. (Id.). The Government opposes both arguments. ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.