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United States v. Vanderpool

United States District Court, M.D. Pennsylvania

April 4, 2018

UNITED STATES OF AMERICA
v.
AARON LEE VANDERPOOL, Defendant/Petitioner.

          MEMORANDUM

          A. Richard Caputo United States District Judge.

         Presently before me is the Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (Doc. 104) filed by Aaron Lee Vanderpool (“Vanderpool” or “Petitioner”). Vanderpool asserts that his counsel was ineffective in failing to object to impermissible “double-counting” that he claims resulted from the simultaneous application of sentencing enhancements under U.S.S.G. § 2K2.1(b)(5) and § 2K2.1(b)(6)(B). Because Vanderpool cannot demonstrate that he was prejudiced by his counsel's performance, his § 2255 motion will be denied.

         I. Background

         On June 16, 2015, Vanderpool was arrested and charged in this Court pursuant to a criminal complaint. (See Doc. 1, generally). On April 9, 2016, Vanderpool agreed to plead guilty to a two-Count Information charging him with theft of firearms from a federal licensee in violation of 18 U.S.C. § 922(u) (Count One) and distribution of heroin in violation of 21 U.S.C. § 841(a)(1) (Count Two). (See Doc. 70, generally). Specifically, Vanderpool was charged with stealing 48 firearms from a sporting goods store in Wysox, Pennsylvania. (See id.).

         Vanderpool agreed to plead guilty to both counts of the Information. (See Doc. 72, generally). The parties stipulated to application of certain Sentencing Guidelines to Vanderpool's conduct, including: (1) pursuant to § 2K2.1(b)(5), Vanderpool engaged in, aided and abetted the trafficking of firearms; and (2) pursuant to § 2K2.1(b)(6)(B), Vanderpool transferred the firearms with knowledge, intent or reason to believe that they would be used or possessed in connection with another felony offense; namely, controlled substances trafficking. (Id. at ¶ 12). At the guilty plea hearing, the prosecutor highlighted the salient points of the plea agreement, including the stipulations that Vanderpool engaged in trafficking of firearms and that he transferred the firearms with knowledge, intent or reason to believe that they would be used or possessed in connection with another felony offense, i.e., narcotics trafficking. (See Doc. 107, 12:14-19). The prosecutor also set out the facts that would satisfy the elements of the charged offenses, including that Vanderpool stole 48 firearms from a sporting goods store. (See id. at 17:21-18:6). The prosecutor further explained that the Government would introduce evidence that Vanderpool conspired with others to transport the firearms and sell them in exchange for heroin and money. (See id. at 18:7-13). Lastly, the prosecutor noted that Vanderpool was arrested with one of the stolen firearms and a quantity of heroin. (See id. at 18:18-23). Vanderpool, upon questioning at the guilty plea hearing, admitted that those facts were all true, and he pled guilty to Counts One and Two of the Information. (See id. at 19:3-20:6). Vanderpool's guilty plea was accepted. (See id. at 20:7-16).

         Prior to sentencing, the United States Probation Office prepared a presentence report (the “PSR”). Vanderpool's offense level was calculated pursuant to the 2016 edition of the United States Sentencing Commission Guidelines Manual. (See PSR, ¶ 16). The charged offenses were grouped together for the Guidelines calculation, which meant that the applicable offense level was that of the most serious offense, here, the theft of firearms offense. (See id. at ¶ 18). Because Vanderpool was a prohibited person, i.e., a drug user, his base offense level for a violation of 18 U.S.C. § 922(u) was 14. (See id. at ¶ 19). Six levels were then added because the offense involved 48 firearms. (See id. at ¶ 20). Two levels were also added because the offense involved stolen firearms. (See id. at ¶ 21). The total offense level further included two additional specific offense characteristics: (1) a four level increase pursuant to U.S.S.G. § 2K2.1(b)(5) because Vanderpool engaged in the trafficking of firearms; and (2) a four level increase based on § 2K2.1(b)(6)(B) since Vanderpool possessed or transferred firearms with knowledge, intent, or reason to believe that they would be used or possessed in connection with another felony offense. (See id. at ¶¶ 22-23).[1] The PSR then decreased the total offense level by two for acceptance of responsibility under § 3E1.1(a) and one level pursuant to § 3E1.1(b). (See id. at ¶¶ 29-30). Thus, Vanderpool's total offense level was 27. (See id. at ¶ 31). The PSR next determined Vanderpool's criminal history. Based on a variety of prior offenses, the PSR computed Vanderpool's criminal history score to be seven, which corresponded with a criminal history category of IV. (See id. at ¶ 41). With a total offense level of 27 and a criminal history category of IV, the recommended Guidelines sentence was between 100 and 125 months imprisonment. (See id. at ¶ 62).

         Vanderpool appeared for sentencing on April 10, 2017. (See Doc. 106, generally). After an unopposed motion for a downward departure was granted, I accepted the PSR with an offense level of 24 and a criminal history category of IV, which produced a sentencing range of 77 to 96 months. (See id. at 2:10-18). Vanderpool was sentenced to a 77 month term of imprisonment. (See id. at 12:23-13:2).

         Vanderpool did not file a direct appeal challenging his conviction or sentence. But, on October 24, 2017, he filed the instant § 2255 motion. (See Doc. 104, generally). Vanderpool claims that the application of enhancements under both § 2K2.1(b)(5) and § 2K2.1(b)(6) to calculate his recommended Guidelines sentence constituted “double counting” which is prohibited by the United States Sentencing Commission. (See id. at 4).[2] As a result, Vanderpool contends that his offense level should have been 17 and he should have been sentenced to a 27 month prison term. (See id.). By failing to object to the Guidelines calculation applying enhancements under both § 2K2.1(b)(5) and § 2K2.1(b)(6), Vanderpool insists that his counsel was ineffective pursuant to Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) and he is entitled to be resentenced. (See id.).

         The Government was directed to file a response to the § 2255 motion, which it timely did on February 21, 2018. (See Doc. 110, generally). According to the Government, without conceding that an error occurred in the calculation of the Guidelines here, it argues that even if one did it was at most harmless because “where the allegedly erroneous guidelines calculation and allegedly correct guidelines calculation lead to the same sentencing range, the defendant has not suffered any prejudice.” (Id. at 14-15). So it follows, says the Government, that Vanderpool's collateral attack on his sentence fails for an inability to establish prejudice as required for a Strickland claim. (See id. at 16). Vanderpool's § 2255 motion is fully briefed and ripe for disposition.

         II. Legal Standards

         A. 28 U.S.C. § 2255.

         “Motions pursuant to 28 U.S.C. § 2255 are the presumptive means by which federal prisoners can challenge their convictions or sentences that are allegedly in violation of the Constitution.” Okereke v. United States, 307 F.3d 117, 120 (3d Cir. 2002). Section 2255 permits a prisoner sentenced by a federal court to move the court that imposed the sentence to “vacate, set aside, or correct the sentence” where: (1) the sentence was imposed in violation of the Constitution or laws of the United States; (2) the court was without jurisdiction to impose such sentence; (3) the sentence was in excess of the maximum authorized by law; or (4) the sentence is otherwise subject to collateral attack. See 28 U.S.C. § 2255(a).

         Section 2255(b) generally entitles a petitioner to a hearing on his motion, “[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief. . . .” 28 U.S.C. § 2255(b); see also Rule 4(b), Rules Governing Section 2255 Proceedings for the United States District Courts (“If it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion and direct the clerk to notify the moving party.”). The threshold the petitioner must meet to obtain an evidentiary hearing is considered to be “reasonably low.” United States v. Booth, 432 F.3d 542, 546 (3d Cir. 2005). In considering a § 2255 motion, the “district court must ‘accept the truth of the movant's factual allegations unless they are clearly frivolous on the basis of the existing record.'” Johnson v. United States, 294 F. App'x 709, 710 (3d Cir. 2008) (quoting Booth, 432 F.3d at 545-46). The district court may, however, dispose of “vague and conclusory allegations” contained in a § 2255 petition without further investigation. Id. at 710 (quoting United States v. Thomas, 221 F.3d 430, 437 (3d Cir. 2000)).

         B. Ineffective Assistance of Counsel.

         Among other protections, the Sixth Amendment to the United States Constitution guarantees an accused in a criminal prosecution “to have the assistance of counsel for his defense.” U.S. Const. amend. VI. The applicable federal precedent for ineffective assistance claims is the well-settled two-prong test established by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

         To establish he was denied the effective assistance of counsel under Strickland, the movant must show that (1) the performance of trial counsel fell below an objective standard of reasonableness, and (2) the performance of counsel unfairly prejudiced the defense. Id. at 687-88, 691, 104 S.Ct. 2052. “Both Strickland prongs must be satisfied.” George v. ...


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