United States District Court, W.D. Pennsylvania
Barry Fischer United States District Judge.
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  is denied.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
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).
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). 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.
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).
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.
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.
STANDARD OF REVIEW
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.”).
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)).
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.