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United States v. Mercer

United States District Court, M.D. Pennsylvania

October 31, 2019




         Before the court for disposition is Defendant Desmond Mercer's pro se motion to vacate and correct his sentence under 28 U.S.C. § 2255. (Doc. 463). The parties have briefed their respective positions, and the matter is ripe for disposition.

         Background and Procedural History

         On October 21, 2014, a grand jury indicted Defendant Mercer, along with several other defendants, on conspiracy to distribute heroin and related charges. (Doc. 36, Indictment). Pursuant to the terms of a Rule 11 plea agreement, Defendant Mercer pleaded guilty to one count of conspiracy to distribute and possess with intent to distribute heroin in violation of 21 U.S.C. § 846. (Doc. 228, Plea Agreement at 1-2). The parties agreed to recommend that Defendant Mercer be sentenced to a 168-month term of imprisonment. (Id. at 9).

         The United States Probation Office then filed a presentence report (“PSR”) regarding Defendant Mercer. (Doc. 296, PSR). Based on at least two prior convictions, the PSR designated Defendant Mercer as a “career offender” pursuant to § 4B1.1 of the United States Sentencing Guidelines Manual (the “Guidelines” or “U.S.S.G.”). (Id. at 8). The PSR additionally found that Defendant Mercer had a criminal history score of fifteen (15), which assigned him a criminal history category of VI. (Id. at 13). Given these findings, the PSR determined that Defendant Mercer's applicable Guidelines range was 151 to 188 months of imprisonment. (Id. at 18).

         On March 2, 2016, the court sentenced Defendant Mercer to the parties' recommended 168 month-term of imprisonment. (Doc. 302, Judgment). Defendant Mercer subsequently appealed his sentence to the United States Court of Appeals for the Third Circuit on March 16, 2016. (Doc. 307, Notice of Appeal). The Third Circuit affirmed his sentence on February 1, 2017. (Docs. 391 & 398, Judgment and Mandate of the U.S.Ct. of Appeals). Defendant Mercer then filed a pro se motion for reduction of sentence under 18 U.S.C. § 3582(c), (Doc. 403), which the court denied by way of memorandum and order on October 7, 2019. (Docs. 505 & 506).

         On January 19, 2018, while his § 3582(c) motion remained pending, Defendant Mercer filed the instant pro se motion to vacate, set aside or correct sentence under 28 U.S.C. § 2255. (Doc. 463). In his supporting memorandum of law, Defendant Mercer alleges that his attorney, Jason Asbell (“Attorney Asbell”), provided ineffective assistance of counsel in the following two respects: (1) by failing to challenge the calculation of his criminal history score, which erroneously accounted for a previously dismissed offense carrying three (3) criminal history points; and (2) by failing to object to his classification as a career offender, given that one of his prior convictions under 35 Pa. Cons. Stat. Ann. § 780-113(a)(30) did not constitute a “predicate offense” under the Guideline's career offender provision.[1] (Doc. 486, Def.'s Mem. in Supp. at 3-11). The Government filed a brief in opposition on May 17, 2018 and argued that the career offender section of the Guidelines applied to Defendant Mercer for sentencing enhancement purposes. (Doc. 487). Defendant Mercer then filed a reply brief on June 22, 2018. (Doc. 492).

         Upon review of Defendant Mercer's reply brief, the court temporarily stayed this case pending the outcome of United States v. Glass, 701 Fed.Appx. 108 (3d Cir. 2017). (Doc. 493). In Glass, the Third Circuit addressed the issue of whether a controlled substance offense under 35 Pa. Cons. Stat. Ann. § 780-113(a)(30) also qualified as a predicate offense pursuant to U.S.S.G. § 4B1.1. On March 27, 2019, the court lifted the stay and directed the parties to file supplemental memoranda regarding the Third Circuit's decision in United States v. Glass, 904 F.3d 319 (3d Cir. 2018) cert. denied, no. 18-1748, 2019 WL 113432 (U.S. Jan. 7, 2019). (Doc. 495). The government filed a supplemental brief on March 20, 2019, asserting that the Glass decision foreclosed Defendant Mercer's arguments in support of § 2255 relief. (Doc. 496). After receiving two extensions of time, (Docs. 500 & 502), Defendant Mercer filed a supplemental brief on October 18, 2019, (Doc. 507), bringing the case to its present posture.


         As Defendant Mercer brings his motion under 28 U.S.C. § 2255, we have jurisdiction under 28 U.S.C. § 1331 (“The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.”). We also have jurisdiction under 28 U.S.C. § 2241 (“Writs of habeas corpus may be granted by . . . the district courts[.]”).

         Standard of review

         Generally, a federal prisoner in custody under the sentence of a federal court may, within one year from when the judgment becomes final, move the sentencing court to “vacate, set aside, or correct” a sentence “imposed in violation of the Constitution or laws of the United States.” 28 U.S.C. § 2255(a). A federal prisoner may also file a § 2255 motion within one year from “[t]he date on which the right asserted was initially recognized by the Supreme Court, if that right was newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review.” 28 U.S.C. § 2255(f)(3). A § 2255 motion may attack a federal prisoner's sentence on any of the following grounds: (1) the judgment was rendered without jurisdiction; (2) the sentence imposed was not authorized by law or otherwise open to collateral attack; or (3) there has been such a denial or infringement of the Constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack. 28 U.S.C. § 2255(b).

         Section 2255 does not, however, afford a remedy for all errors that may have been made at trial or sentencing. United States v. Essig, 10 F.3d 968, 977 n.25 (3d Cir. 1993). Rather, § 2255 permits relief for an error of law or fact constituting a “fundamental defect which inherently results in complete miscarriage of justice.” United States v. Eakman, 378 F.3d 294, 298 (3d Cir. 2004) (citing United States v. Addonizio, 442 U.S. 178, 185 (1979)). If the court determines that the sentence was not authorized by law, was unconstitutional, or is otherwise open to collateral attack, the court may vacate the judgment, resentence the prisoner, or grant the prisoner a new trial as appropriate. See 28 U.S.C. § 2255(b).

         Standard of review for ineffective assistance of counsel claims

         As noted above, the instant petition raises issues of ineffectiveness of counsel. The Sixth Amendment to the United States Constitution guarantees criminal defendants the right to counsel. U.S. Const. Amend. VI. In Strickland v. Washington, the United States Supreme Court determined that “‘the right to counsel is the right to the effective assistance of counsel.'” 466 U.S. 668, 686 (1984) (quoting McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970)). Counsel is ineffective when “counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Strickland, 466 U.S. at 686. As such, to succeed on an ineffectiveness claim under Strickland, a defendant must convince the court of two factors: 1) deficient performance by counsel; and 2) prejudice from that deficient performance. Id. at 687.

         Satisfying the first factor requires a “showing that counsel made errors so serious that counsel was not functioning as the ‘counsel' guaranteed the defendant by the Sixth Amendment.” Id. In assessing an attorney's performance, courts apply a highly deferential level of scrutiny. See Marshall v. Cathel, 428 F.3d 452, 462 (3d Cir. 2005) (quoting Strickland, 466 U.S. at 689). This deference is afforded because ‚Äúcounsel is strongly presumed to have rendered adequate ...

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