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United States v. Fausnaught

United States District Court, M.D. Pennsylvania

April 20, 2018

UNITED STATES OF AMERICA, Respondent,
v.
STEVEN FAUSNAUGHT, Petitioner.

          MEMORANDUM OPINION

          Robert D. Mariani United States District Judge

         I. Introduction

         On July 30,2007, Petitioner Steven Fausnaught was convicted of conspiracy to distribute more than 500 grams of methamphetamine and more than 100 kilograms of marijuana in violation of 21 U.S.C. § 846; several counts of distribution and possession with intent to distribute controlled substances in violation of 21 U.S.C. § 841(a)(1); and illegal possession of a firearm while being a user of controlled substances in violation of 18 U.S.C. § 922(g)(3). Doc. 401. On December 29,2008, Petitioner was sentenced to 292 months in prison. Doc. 527. Since then, Petitioner has filed several motions to challenge his conviction and/or sentence, including, for the purposes of the instant motion, a previous 28 U.S.C. § 2255 motion for ineffective assistance of counsel, which was denied on January 16,2014, and a second 28 U.S.C. § 2255 motion, which is currently pending before this Court. Doc. 744. Unlike a typical § 2255 motion seeking to vacate or set aside a sentence, the second § 2255 motion claims that Petitioner's sentence is retroactively eligible for a "minor role reduction" pursuant to Amendment 794, which amended the commentary to § 3B1.2 (titled "Mitigating Role") of the Sentencing Guidelines. Id. at 2-3. For the reasons stated below, Petitioner's motion will be denied.

         II. Factual Background

         Petitioner's case has been addressed numerous times by the district court and the Third Circuit Court of Appeals over the past decade. He was convicted on July 30,2007 of several counts related to conspiracy to distribute drugs, including, among other things, conspiracy to distribute and possess with intent to distribute in excess of 500 grams of methamphetamine and in excess of 100 kilograms of marijuana. Doc. 401. During the six-day trial, a law enforcement officer testified that his team seized approximately 15 pounds of marijuana, various drug paraphernalia used to smoke marijuana, packaging materials, long rifles, knives, and a number of books related to the growing of marijuana at Petitioner's home. Doc. 500 at 105. In addition, Petitioner's co-conspirator testified that he had participated in a conspiracy to distribute methamphetamine with Petitioner, who was his methamphetamine supplier. Doc. 501 at 145-154. The co-conspirator testified, among other things, that police officers found about "a pound" of methamphetamine during a search of his home; that he had received the methamphetamine from Petitioner "just a couple [of] days before the police executed their search warrant"; that he had been dealing with Petitioner for about five years; that Petitioner "fronted" him up to two pounds of methamphetamine at a time, which he then sold to others, and that at the time of his arrest, he had owed Petitioner approximately $90,000 to $100,000 for the drugs that Petitioner had "fronted" him. Id. Furthermore, another witness testified about an audio recording of a phone call involving the Petitioner, who referenced obtaining "zip" on the call, which the witness explained was a slang term for methamphetamine. Doc. 502 at 15. At the end of trial, the jury returned a guilty verdict against Petitioner on all charges. Doc. 401. Petitioner was then sentenced to 292 months in prison, which was the bottom of his advisory sentencing guidelines range. Doc. 527.

         On May 20,2010, the Third Circuit affirmed Petitioner's conviction as well as his sentence. United States v. Fausnaught, 380 F.App'x 198,204 (3d Cir. 2010). On March 20,2012, Petitioner filed his first § 2255 motion, arguing that he received ineffective assistance of counsel. Doc. 629. The motion was denied on March 1,2013. Doc. 652. On October 3,2016, Petitioner filed a second § 2255 motion, arguing that he is retroactively eligible for a sentence reduction because he was a minor participant in the conspiracy to distribute methamphetamine. Doc. 744. The government opposes Petitioner's motion, arguing that the Court lacks jurisdiction because the second § 2255 motion was filed without authorization. Doc. 762 at 4-6. In the alternative, the government contends that even if the motion were analyzed under the merits, Petitioner would not qualify for a "minor role reduction" because the evidence at trial does not support his contention that he played only a minor role in the conspiracy for which he was convicted. Id. at 6-8. The motion is now ripe for disposition.

         III. Analysis

         A convicted person who is currently imprisoned may petition the sentencing court to correct, vacate, or set aside the sentence under 28 U.S.C. § 2255. The court may only grant relief if it finds "(1) 'that the sentence was imposed in violation of the Constitution or laws of the United States;' (2) 'that the court was without jurisdiction to impose such sentence;' (3) 'that the sentence was in excess of the maximum authorized by law;' or (4) that the sentence 'is otherwise subject to collateral attack.'" Hill v. United States, 368 U.S. 424,426-27, 82 S.Ct. 468,470, 7 L.Ed.2d 417 (1962).

         "Before a second or successive § 2255 motion may be filed in the district court, the applicant must move in the appropriate court of appeals for an order authorizing the district court to consider the motion." In re Olabode, 325 F.3d 166,169 (3d Cir. 2003). In determining whether an order shall issue, the court of appeals must find that the successive motion contains:

(1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense; or
(2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.

28 U.S.C. § 2255(h). Thus, a district court lacks subject matter jurisdiction over a successive § 2255 motion without authorization from a court of appeals. See Lugo v. Zickefoose, 427 F.App'x 89, 92 (3d Cir. 2011) (affirming denial of § 2255 motion and holding that the district court lacked jurisdiction over petitioner's successive § 2255 motion, given petitioner's failure to obtain prior authorization from the court of appeals).

         "When a second or successive habeas petition is erroneously filed in a district court without the permission of a court of appeals, the district court's only option is to dismiss the petition or transfer it to the court of appeals pursuant to 28 U.S.C. § 1631." Robinson v. Johnson, 313 F.3d 128,139 (3d Cir. 2002). In order to determine if referral to the court of appeals is appropriate, the district court should consider whether the petitioner has "alleged facts sufficient to bring his petition within the gatekeeping requirement of § 2255 permitting 'second or successive' petitions based upon newly discovered evidence or a new rule of constitutional law." Hatches v. Schultz, 381 F.App'x 134,137 (3d Cir. 2010) (citing 28 U.S.C. § 2255(h)).

         In this case, Petitioner filed a successive § 2255 motion without authorization from the Third Circuit. Thus, the Court is without jurisdiction to decide his motion. In addition, Petitioner has not alleged sufficient facts "within the gatekeeping requirement of § 2255" to warrant a referral to the Third Circuit, since he cites no newly discovered evidence or a new rule of constitutional law in support of his petition. Id. Instead, Petitioner's only argument is that he is retroactively eligible for a "minor role reduction" because he did not meaningfully participate in the conspiracy to distribute methamphetamine. Doc. 744. Petitioner bases his argument on Amendment 794 of the Sentencing Guidelines, which took effect on November 1,2015, approximately eight years after he was ...


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