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Turner v. United States

United States District Court, D. Maine

September 6, 2018

CHRISTIAN TURNER, 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 Christian Turner moves, pursuant to 28 U.S.C. § 2255, to vacate, set aside or correct his sentence. (Motion, ECF No. 735.) Following a guilty plea, Petitioner was convicted of conspiracy to distribute and possess with intent to distribute 280 grams or more of cocaine base, 21 U.S.C. §§ 846, 841(a)(1), 841(b)(1)(A) (Count 1); and conspiracy to violate federal firearms laws, 18 U.S.C. §§ 371, 924(a)(1), 922(a)(3), 922(a)(5) (Count 3); the Court sentenced Petitioner to prison terms of 300 months on Count 1, and 60 months on Count 3, to be served concurrently.[1] (Judgment, ECF No. 542 at 1-2.)

         Petitioner challenges the Court's finding of a two-level sentencing guidelines enhancement for engaging in the offense conduct as a livelihood, USSG § 2D1.1(b)(15)(E) (imposed if the court finds “the defendant committed the offense as part of a pattern of criminal conduct engaged in as a livelihood”). (Motion at 1; Sentencing Tr., ECF No. 625 at 59.) Petitioner contends he is entitled to relief because, he alleges, sometime after his conviction, consent decrees were issued based on a federal finding concerning “a ‘pattern of racially motivated bias' and ‘racist policies [and] practices'” by various law enforcement agencies involved in Petitioner's past arrests. (Motion at 1.)

         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

         At sentencing, although Petitioner's counsel asserted several factual disputes with the revised presentence investigation report, counsel did not dispute the facts in support of the enhancement for engaging in criminal conduct as a livelihood. (Sentencing Tr., at 4-10.) Petitioner told the Court, in response to the Court's inquiry, that other than the issues identified by counsel, Petitioner believed the information in the report to be true. (Id. at 10.)

         The Court determined the guidelines calculation as follows: the base offense level was 34, because the offense involved at least 10, 000 kilograms but less than 30, 000 kilograms of marijuana equivalent, pursuant to USSG § 2D1.1(c)(3). (Id. at 59.) In addition to the two-level criminal livelihood enhancement, pursuant to USSG § 2D1.1(b)(15)(E), two levels were added for possession of a firearm, pursuant to USSG § 2D1.1(b)(1). (Id.) Four levels were added, pursuant to USSG § 3B1.1(a), because the Court found Petitioner was an organizer or leader of a conspiracy involving at least ten individuals. (Id. at 60.) The Court subtracted 3 levels for acceptance of responsibility, pursuant to USSG § 3E1.1. (Id.) The total offense level was 39. (Id.) Petitioner's criminal history category was V, which, combined with a total offense level of 39, resulted in a guidelines range of 360 months to life in prison. (Id.)

         Petitioner did not object to the guidelines range. (Id. at 61.) The Court concluded as to Count 1 that the upper end of the guidelines range was too harsh, and it imposed a 300-month sentence on Count 1, and 60 months on Count 3, to be served concurrently; the Court imposed supervised release terms of five years on Count 1, and three years on Count 3, to be served concurrently. (Id. at 78-79.) Judgment was entered on July 7, 2016. (Judgment at 1.)

         Petitioner did not appeal from the conviction or the sentence. Petitioner states he signed and dated his section 2255 motion on April 2, 2018.[2] (Motion at 1.) The motion was filed on April 6, 2018. (Id.)

         II. Discussion

         A. Legal Standards

         A person may move to vacate his or her sentence on one of four different grounds: (1) “that the sentence was imposed in violation of the Constitution or laws of the United States”; (2) “that the court was without jurisdiction” to impose its sentence; (3) “that the sentence was in excess of the maximum authorized by law”; or (4) that the sentence “is otherwise subject to collateral attack.” 28 U.S.C. § 2255(a); see Knight v. United States, 37 F.3d 769, 772 (1st Cir. 1994).

         The burden is on the section 2255 petitioner to establish by a preponderance of the evidence that he or she is entitled to section 2255 relief. David v. United States, 134 F.3d 470, 474 (1st Cir. 1998); ...


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