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Bowden v. United States

United States District Court, District of Maine

September 19, 2014

DAREN BOWDEN, Petitioner,
v.
UNITED STATES, Respondent

Defendant (1) Daren Bowden represented by Daren Bowden 07067-036 Devens Federal Medical Center Inmate Mail/Parcels Pro Se

Ronald W. Bourget Law Offices of Ronald W. Bourget

Plaintiff USA represented by Margaret D. McGaughey U.S. Attorney's Office District of Maine

Joel B. Casey Office of the U.S. Attorney DIstrict of Maine

Renee M. Bunker U.S. Attorney's Office District of Maine

Daren Bowden represented by Daren Bowden 07067-036 Devens Federal Medical Center Inmate Mail/Parcels Pro Se

Ronald W. Bourget Law Offices of Ronald W. Bourget

Plaintiff USA represented by Joel B. Casey Office of the U.S. Attorney District of Maine

Margaret D. McGaughey U.S. Attorney's Office District of Maine

Renee M. Bunker U.S. Attorney's Office District of Maine

RECOMMENDED DECISION ON 28 U.S.C. § 2255 MOTION

John C. Nivison U.S. Magistrate Judge

In this matter, Petitioner Daren Bowden moves, pursuant to 28 U.S.C. § 2255, to vacate, set aside or correct the sentences imposed after he pled guilty to (1) conspiracy to possess with intent to distribute oxycodone, and (2) possession of a firearm by an unlawful user of controlled substances. (Motion ECF Nos. 87, 88.)[1] Petitioner claims ineffective assistance of counsel on several grounds, principally regarding issues related to the drug quantity. The Government has moved for summary dismissal. After a review of Petitioner’s motion and the Government’s request for dismissal, the recommendation is that the Court grant the Government’s request, and dismiss Petitioner’s motion.[2]

I. Factual Background and Procedural History

Petitioner was arrested on August 5, 2011, for conspiring to distribute and possess with intent to distribute crack cocaine; counsel was appointed at Petitioner’s initial appearance on August 8, 2011. (ECF No. 9.) Petitioner was indicted on August 17, 2011, on a single count alleging that from January 1, 2009, to March 1, 2010, Petitioner conspired to distribute and to possess with intent to distribute oxycodone, in violation of 21 U.S.C. §§ 846, 841(a)(1). (Indictment, ECF No. 14.)

The amended prosecution version alleged as follows: Through drug deals arranged with his source and his customers, Petitioner distributed pills throughout Piscataquis County. (Amended Prosecution Version, ECF No. 38 at 1.) In March 2009, Petitioner pawned a shotgun to another person to support his addiction to oxycodone. (Id.) Had the case gone to trial, the Government’s evidence would have consisted of the testimony of law enforcement officers and agents to whom Petitioner confessed during two interviews; the testimony of a cooperating defendant who was one of Petitioner’s customers; telephone and business records; and the testimony of an interstate nexus expert with the Bureau of Alcohol, Tobacco, Firearms, and Explosives to establish that the firearm moved in interstate commerce. (Id. at 1-2.) In the first of the two interviews with agents, which interview took place in April 2010, Petitioner stated that he obtained ten pills each day from his source and used about three or four himself. (Sentencing Exh., ECF No. 104-1 at 4; Sentencing Tr., ECF No. 83 at 34, Sentencing Exhibit List, ECF No. 56 at 1.) In the second interview, which occurred in May 2011, Petitioner said that he acquired ten or twenty pills each day. (Sentencing Exh., ECF No. 104-2 at 3.)

On December 28, 2011, the Government filed an information under docket number 1:11-cr-00235-JAW, alleging the firearms charge, i.e., that Petitioner was an illegal user of or addicted to a controlled substance and knowingly possessed a shotgun in violation of 18 U.S.C. § 922(g)(3). On the same date, the parties filed a plea agreement stating that Petitioner agreed to plead guilty to both the firearms charge and the drug trafficking charge. (Plea Agreement, ECF No. 35.)[3] Also on December 28, 2011, the Court held a hearing at which counsel was appointed on the firearms charge; Petitioner waived the indictment on the firearms charge and was arraigned; and, pursuant to Fed. R. Crim. P. 11, Petitioner entered a guilty plea on both the drug trafficking charge and the firearms charge. (Fed. R. Crim. P. 11 (Rule 11) Tr., ECF No. 81 at 14-16.) Based on its colloquy with Petitioner, the Court found that Petitioner was fully informed of his rights and that his decision to waive the indictment and plead guilty to both charges was knowing and voluntary. (Id. at 13, 29-30.)[4]

The revised presentence investigation report included a conservative calculation of the drug quantity. Petitioner had reported that he bought or sold at least ten 80-mg oxycodone pills each day from March 1, 2009, through March 1, 2010, resulting in a purchase of a total of 3, 650 pills. However, based on a confidential source who stated that Petitioner also sold 30-mg pills, probation assumed that half of the pills were 80-mg pills (3, 650/2 x 80-mg = 146 grams) and half were 30-mg pills (3, 650/2 x 30-mg = 54.75 grams), for a total quantity of 200.75 grams (146 54.75 = 200.75) of oxycodone. This was converted to 1, 345 kg of marijuana equivalent, resulting in a base offense level of 32.[5] Two levels were added, pursuant to U.S.S.G. §2D1.1(b)(1), for trading firearms for drugs on multiple occasions, and three levels were subtracted, pursuant to U.S.S.G. § 3E1.1(a), for acceptance of responsibility, resulting in a total offense level of 31. The presentence investigation report placed Petitioner’s criminal history category at III, based on six criminal history points. (Sentencing Tr., ECF No. 83 at 78.) In the report, probation concluded that the sentencing guideline range was between 135 and 168 months of imprisonment. (Id.)

Petitioner objected to the revised presentence investigation report regarding both the drug quantity and the criminal history category. First, Petitioner objected to the reliability of information provided by a confidential source regarding drug quantity, and asserted that the quantity was not more than 600 pills, in part because Petitioner was employed out-of-state from September through December 2009 and in part because at times fewer drugs than alleged were involved. Second, Petitioner objected to the firearms enhancement because he sold to a licensed firearms dealer. Finally, Petitioner objected to “the assignment of criminal history points to [a conviction referenced in paragraph 37 of the report] as he has moved to reopen the deferred disposition based on procedural grounds, but the case has not been concluded at this time.”

The Court held two days of sentencing hearings in July and August 2012. (Sentencing Tr., ECF Nos. 82, 83.) At the hearings, the parties again disputed both the number of pills that Petitioner possessed each day and the number of days on which he possessed pills.[6] The Court noted that Petitioner was in an “awkward position” because he was trying to convince the Court that the number of pills that he possessed each day was much lower than the amounts to which he had confessed in April 2010 and May 2011. (Sentencing Tr., ECF No. 83 at 82.) In support of his position at sentencing, Petitioner offered the testimony of a private investigator who had conducted a telephone interview of Michael Weston, who had worked for Petitioner from September to December 2009 at a cable company in Vermont.[7] The private investigator testified that Weston told him that Petitioner told Weston that Petitioner possessed ten pills each week rather than ten each day, and that the drugs were mostly for Petitioner’s personal consumption. (Sentencing Tr., ECF No. 83 at 36-39.)

The Court found that Petitioner’s own statements regarding the drug quantity provided the Court with the most reliable drug quantity estimate. The Court based its conclusion on (1) the fact that Petitioner gave his statements to law enforcement, whereas Weston spoke with a private investigator; (2) Petitioner gave two statements, whereas Weston gave only one; (3) Petitioner’s statements were closer to the pertinent dates, whereas Weston gave his statements a couple of years later; (4) Petitioner’s two statements were consistent as to the drug quantity, even though the two interviews were separated by over a year. (Id. at 83-84.) The Court thus found that Petitioner possessed ten pills each day for the days on which he engaged in drug trafficking. (Id. at 84.)

With respect to Petitioner’s challenge to the number of days on which Petitioner possessed oxycodone, the Government conceded that Petitioner worked in Vermont for 37 days during the fall of 2009, and that Petitioner did not possess oxycodone for 28 days in February; therefore, the 365 days alleged in the revised presentencing report could be reduced by 65 days (37 28 = 65). (Sentencing Tr., ECF No. 83 at 11, 17-18.) Petitioner argued that he was in Vermont for a much longer period, from September 1, 2009, to December 22, 2009. (Sentencing Tr., ECF No. 83 at 10, 84.)

The Court found that Petitioner worked in Vermont from October 10, 2009, to December 22, 2009, i.e., a period of 73 days. (Sentencing Tr., ECF No. 83 at 84-85.) The Court also determined, based on telephone records, that when Petitioner was based in Vermont, he was actually in Maine for many more days than necessary to put the drug quantity of oxycodone well over 1, 000 kilograms of marijuana equivalent. (Sentencing Tr., ECF No. 83 at 86-87.)[8] The Court concluded on that basis that Petitioner’s base offense level was 32. (Sentencing Tr., ECF No. 83 at 87.)

The Court determined the total offense level as follows: Because Petitioner pawned the guns to get cash with which to buy drugs, the Court found a causal connection between the pawned guns and the illicit drugs. (Sentencing Tr., ECF No. 83 at 5-7.) On that basis, the Court applied a two-level sentencing enhancement to the base offense level, pursuant to section 2D1.1(b) of the United States Sentencing Guidelines. (Sentencing Tr., ECF No. 82 at 18, 21.) The Court also applied a three-point reduction for acceptance of responsibility, pursuant to section 3E1.1 of the sentencing guidelines. (Sentencing Tr., ECF No. 83 at 87.)

The Court asked Petitioner specifically whether he had had a chance to review the criminal history portion of the revised presentencing report, and Petitioner responded that he had reviewed it carefully and that the criminal history portion was accurate. (Sentencing Tr., ECF No. 82 at 4-5.) The Court determined that the reopening of a deferred disposition in state court, on a charge of operating after suspension for a habitual offender, would have no effect on Petitioner’s criminal history category for purposes of federal sentencing, because regardless of whether the reopened sentence counted toward Petitioner’s prior convictions, he would remain in criminal history category III. (Sentencing Tr., ECF No. 82 at 21-23.)[9] The Court ...


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