Stolkner v. United States

          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 ...