United States District Court, D. Maine
RECOMMENDED DECISION ON 28 U.S.C. § 2255
C. Nivison U.S. Magistrate Judge.
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).
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). 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.)
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
Factual Background and Procedural History
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.)
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.)
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; 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.)
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.)
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. 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.
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.
at 36-37 (footnotes omitted) (citing United States v.
Taveras, 118 Fed.Appx. 516, 517-18 (1st Cir.
2004) (per curiam)).
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.)