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Magee v. United States

United States District Court, D. Maine

July 3, 2018

RICHARD MAGEE, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent

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

          John C. Nivison U.S. Magistrate Judge.

         In this action, Petitioner Richard Magee moves, pursuant to 28 U.S.C. § 2255, to vacate, set aside or correct his sentence. (Motion, ECF No. 368.) Following a guilty plea, Petitioner was convicted of being a felon in possession of firearms, of distributing cocaine, and of possession with intent to distribute cocaine; the Court sentenced Petitioner to 70 months in prison. (Judgment, ECF No. 301 at 1-3.) The First Circuit affirmed the conviction and the sentence on appeal. United States v. Magee, 834 F.3d 30 (1st Cir. 2016), cert. denied, 137 S.Ct. 1832 (2017).

         In his reply memorandum, Petitioner reiterated that his sole section 2255 claim is that appellate counsel provided ineffective assistance when counsel failed “to raise the relevant conduct drug quantity issue” at sentencing. (Motion at 4; Reply, ECF No. 376 at 2.) Petitioner evidently contends appellate counsel was ineffective based on counsel's failure to argue in accordance with the issue discussed in the concurring opinion in the First Circuit's decision on Petitioner's appeal. (Id.) Magee, 834 F.3d at 38-39 (Torruella, J., concurring).[1] Petitioner cites Nelson v. Colorado, ___ U.S. ___, 137 S.Ct. 1249 (2017), in further support of the claim. (Notice of Supreme Court Decision, ECF No. 371.) In addition, Petitioner contends appellate counsel provided ineffective assistance when counsel conceded one of the two factual bases for the drug quantity calculation. (Memorandum in Support of Motion, ECF No. 370-1 at 5.)

         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 four drug charges and to being a felon in possession of firearms, pursuant to 18 U.S.C. §§ 922(g)(1), 924(a)(2) (Count 1 for felon in possession); and pursuant to 21 U.S.C. § 841(a)(1), (b)(1)(C) (Counts 5, 6, and 7 for distribution of cocaine, and Count 18 for possession with intent to distribute cocaine). (Judgment at 1-2.) The Court sentenced Petitioner to a total concurrent prison term of 70 months, to be followed by concurrent terms of three years of supervised release. (Judgment at 3-4.)

         Under the plea agreement, Petitioner agreed to be sentenced to a prison term of not more than 20 years on the drug charges. (Plea Agreement, ECF No. 248 at 1-2.) The plea was conditioned on Petitioner's right to appeal from several decisions on evidentiary issues and other issues. (Conditional Plea, ECF No. 247.)

         At sentencing, counsel raised the due process argument that Petitioner includes in his section 2255 motion - i.e., that the use of relevant uncharged conduct to enhance the sentence was improper;[2] the Court rejected the argument, explaining that Circuit precedent provided that relevant conduct, including conduct for which Petitioner was not charged or convicted, may be considered at sentencing. (Sentencing Tr., ECF No. 323 at 164-65.)

         Counsel also argued at sentencing that the Government's evidence of the drug quantity was speculative because Petitioner - by using the term “a thousand” during an intercepted telephone conversation with David Jones, which call was referred to as “Call 3869” - may have meant 1, 000 grams; $1, 000; or something else. (Sentencing Tr., ECF No. 323 at 160, 163-65, 171, 180.)[3]

         Petitioner appealed from both the conviction and the sentence, and the First Circuit affirmed the judgment. Magee, 834 F.3d at 31. The First Circuit addressed both the drug quantity and the criminal history calculation.[4] Id. at 35-38. Regarding the drug quantity, the First Circuit noted that this Court “attributed over 1, 000 grams of cocaine to Magee as relevant uncharged conduct.” Id. at 35. The Court noted Petitioner's argument that the drug quantity testimony of Michael Paul was “too unreliable to credit as a general matter, given Paul's admitted memory problems.” Id. at 36.

         The Court concluded, however, that Petitioner had waived the drug quantity issue on appeal, because he failed to contest other evidence that supported the drug quantity:

[T]he District Court found that the [presentence investigation report's] drug quantity calculation was correct based on Paul's drug quantity testimony “and the other evidence . . . [it] cited.” That “other evidence” included an intercepted call in which Magee discussed drug quantity with Jones (“Call 3869”). The government argued below that Call 3869 itself was sufficient to establish that Magee was responsible for 1, 000 grams of cocaine and thus that a [base offense level (BOL)] ¶ 24 was warranted. On appeal, the government again contends that Call 3869 independently establishes that Magee dealt in 1, 000 gram quantities of cocaine and thus that the District Court did not err in calculating a BOL of 24 for Magee. The government further contends that Magee, by virtue of his failure to address Call 3869, waived any challenge to the District Court's drug quantity and BOL determinations.
In his briefing to this Court, Magee did not address Call 3869. At oral argument, moreover, Magee conceded that the District Court's drug quantity and BOL determinations were adequately supported. Magee clarified that the purpose of his objection to Paul's drug quantity testimony was to contest the District Court's criminal history calculation, and not the District Court's drug quantity and BOL calculations. Under these circumstances, we conclude that Magee has waived any challenge to the District Court's drug quantity and BOL determinations.

         Id. at 36-37 (footnotes omitted) (citing United States v. Taveras, 118 Fed.Appx. 516, 517-18 (1st Cir. 2004) (per curiam)).[5]

         The Supreme Court denied certiorari in April 2017. Magee, 137 S.Ct. 1832. Petitioner states he placed his section 2255 motion in the prison mailing system on December 12, 2017. (Motion at 12.)

         II. Discussion

         A. ...


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