United States District Court, M.D. Pennsylvania
Richard Caputo United States District Judge.
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
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
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).
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). 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).
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
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). 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.).
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
28 U.S.C. § 2255.
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).
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)).
Ineffective Assistance of Counsel.
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).
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. ...