United States District Court, D. Maine
RECOMMENDED DECISION ON 28 U.S.C. § 2255
MOTION
JOHN
C. NIVISON, U.S. MAGISTRATE JUDGE.
In this
action, Petitioner Scot Stolkner moves, pursuant to 28 U.S.C.
§ 2255, to vacate, set aside or correct his sentence.
(Motion, ECF No. 203.) Following a guilty plea, Petitioner
was convicted of two counts of conspiracy to distribute
controlled substances, and of aiding and abetting the crime;
the Court sentenced Petitioner to 210 months in prison.
(Judgment, ECF No. 173 at 1-2.)
Petitioner
asserts claims his counsel was ineffective because counsel
failed to file a notice of appeal from the sentence (Motion
at 15, 17); failed to investigate adequately prior to the
plea and therefore erroneously advised Petitioner he would be
subject to a career offender sentencing enhancement
(id. at 19-20); and failed to object to sentencing
enhancements for an aggravating role and for knowingly
involving a pregnant woman in the offense (id. at
31-33).
Following
a review of Petitioner's motion, the Government's
request for dismissal, and the record, I recommend the Court
grant the Government's request, and dismiss
Petitioner's motion.
I.
Factual Background and Procedural History
Petitioner
pled guilty to two counts of a superseding indictment that
charged him, pursuant to 21 U.S.C. §§ 841(a)(1),
(b)(1)(C), 846, 851; and 18 U.S.C. § 2, with conspiracy
to distribute and to possess with intent to distribute
controlled substances, and with aiding and abetting the
crime. (Superseding Indictment, ECF No. 54 at 1-2; Judgment
at 1.) Count 1 alleged the crime took place from January 2015
through at least approximately July 2015, and the substances
were heroin, fentanyl, and alpha-pyrrolidinovalerophenone
(a-PVP). (Superseding Indictment at 1.) Count 2 alleged the
crime took place from August 2014 through approximately
December 2014, and the substance was heroin. (Id.)
Petitioner
entered his guilty plea pursuant to a plea agreement pursuant
to which the parties agreed to make binding recommendations
regarding the length of the sentence. Petitioner agreed to
recommend a sentence of 188 months, and the Government agreed
to recommend a sentence of 235 months. (Plea Agreement, ECF
No. 116 at 2-3; Plea Tr., ECF No. 210 at 22-26.) The plea
agreement provided that if the Court imposed a prison term of
more than 235 months, Petitioner was permitted to withdraw
the guilty plea. (Id. at 3.)
The
plea agreement also incorporated a waiver of Petitioner's
right to appeal:
Defendant is aware that Title 18, United States Code, Section
3742 affords a defendant the right to appeal the sentence
imposed. Knowing that, Defendant waives the right to appeal
the following:
A. Defendant's guilty plea and any other aspect of
Defendant's conviction in the above-captioned case; and
B. A sentence of imprisonment that does not exceed 235
months.
(Id. at 4.)
At the
plea hearing, before Petitioner pled guilty, Petitioner
admitted to a prior conviction, alleged pursuant to 21 U.S.C.
§ 851, for a 2008 Maine felony aggravated trafficking of
scheduled drugs, Docket No. PORSC-CR-2007-02973, for which
Petitioner was sentenced to a prison term of eight years.
(Information, ECF No. 100; Plea Tr. at 9-10.) Before
Petitioner admitted the prior offense, in response to the
Court's inquiry, Petitioner told the Court he had read
the information, he had discussed it with counsel, and he
understood it. (Plea Tr. at 9-10.)
Petitioner
also told the Court, in response to the Court's
questioning, that he had reviewed the Government's
version of the offense, he understood it, he had sufficient
time to review it with counsel, and he did not disagree with
any of the evidence set forth in the Government's
version. (Government's Version, ECF No. 115; Plea Tr. at
21-22.)
In
response to the Court's inquiry about the plea agreement,
Petitioner told the Court he signed the agreement
voluntarily, and that he understood, as part of the
agreement, he waived his right to appeal from a sentence of
up to 235 months. (Plea Tr. at 22-26, 28.) The Court
explained that because the plea agreement contained
provisions for binding recommendations regarding the length
of the sentence, the Court would reserve until sentencing its
decision whether to accept the plea agreement. (Id.
at 31.)
At the
sentencing hearing, the Court asked Petitioner whether he had
read the entire revised presentence investigation report,
whether he had had sufficient time to discuss it with
counsel, whether counsel had answered his questions about the
report, and whether Petitioner understood the report;
Petitioner responded affirmatively to all of the questions.
(Sentencing Tr., ECF No. 222 at 5-6.) In response to the
Court's additional questions, Petitioner asserted that
the report contained no inaccuracies, and the information in
the report was true to his personal knowledge. (Id.
at 7.) The Court found the facts as set forth in the report.
(Id. at 56.)
The
sentencing guidelines calculation was determined as follows:
the base offense level was 30, pursuant to USSG §
2D1.1(a), (c)(5). Two levels were added, on either of two
alternate bases: (1) that Petitioner was subject to an
adjustment under USSG § 2D1.1(b)(15)(B)(iii), because
Petitioner had an aggravating role in the offense, pursuant
to USSG § 3B1.1, and he knew one of the participants in
the conspiracy was pregnant; or (2) that Petitioner had an
aggravating role and earned in excess of a specified amount
from the heroin sales.[1] Four levels were added, pursuant to USSG
§ 3B1.1(a), because Petitioner was an organizer or
leader of a criminal activity that involved the five
participants (including Petitioner) named in the
Government's version (ECF No. 115 at 2). The adjusted
offense level, therefore, was 36.
The
report explained that because the adjusted offense level of
36 was above the career offender level of 34, the higher
adjusted offense level of 36 applied, pursuant to USSG §
4B1.1(b). Three levels were subtracted for acceptance of
responsibility, pursuant to USSG § 3E1.1, and thus the
total offense level was 33. Although Petitioner's career
offender status did not determine his adjusted offense level,
it increased his criminal history category to Category VI,
pursuant to USSG § 4B1.1(b); without career offender
status, it would have been Category V. (Report ¶¶
21-33 (offense level computation), ¶¶ 52-53
(criminal history computation).) The revised presentence
investigation report also discussed the effect of the plea
agreement, and it reiterated that the plea agreement provided
that Petitioner waived his right to appeal any sentence that
did not exceed a total of 235 months. (Report ¶ 74.)
After
the Court found the facts as set forth in the revised
presentence investigation report and determined the guideline
range to be from 235 to 293 months, the Court next considered
the sentencing factors, pursuant to 18 U.S.C. § 3553(a).
(Sentencing Tr. at 57.) The Court focused particularly on the
seriousness of the drug conspiracy, given the significant
period of time over which it occurred, the massive quantities
of drugs, and the resulting harm to the community.
(Sentencing Tr. at 60.) The Court declined to grant a
downward variance for the career offender criminal history
category, as it found Category VI did not overstate
Petitioner's criminal history. (Id. at 63.) The
Court, however, concluded the enhancement under USSG §
2D1.1(b)(15)(B)(iii) overstated the seriousness of
Petitioner's awareness that the participant was pregnant,
because he knew about the pregnancy for only a few days
before he was apprehended. (Id. at 63-64.) Regarding
the alternate basis for the two-level enhancement based on
the amount of money Petitioner earned, the Court noted that
the sentence took into account both the enhancement and the
uncertainties involved in the calculation of the amount of
money Petitioner earned. (Id. at 64.) The Court also
considered Petitioner's age and the length of the
sentence in the downward variance. (Id. at 65.)
The
Court sentenced Petitioner in November 2016 to a
below-guidelines prison term of 210 months on each count,
with the terms to be served concurrently, to be followed by
concurrent terms of six years of supervised release.
(Sentencing Tr. at 67; Judgment at 2-3.) The Court found that
because the sentence did not exceed 235 months, Petitioner
waived his right to appeal, pursuant to the plea agreement.
(Sentencing Tr. at 72-73.)
Petitioner
asserts that he placed his section 2255 motion in the prison
mailing system on a date in October 2017; the Government does
not contest the ...