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Gordon v. United States

United States District Court, D. Maine

November 16, 2018

MARCO GORDON, Petitioner,



         In this action, Petitioner Marco Gordon moves, pursuant to 28 U.S.C. § 2255, to vacate, set aside or correct his sentence. (Motion, ECF No. 430.) Following a guilty plea, Petitioner was convicted of two drug offenses; the Court sentenced Petitioner to 132 months in prison. (Judgment, ECF No. 272 at 1-2.) The First Circuit affirmed the sentence on appeal. United States v. Gordon, 852 F.3d 126 (1st Cir. 2017), cert. denied, 138 S.Ct. 256 (2017).

         Petitioner alleges counsel provided ineffective assistance at sentencing because counsel failed to argue the rule of lenity; failed to investigate and secure witnesses to establish that Petitioner's primary occupation was as a barber; failed to investigate and oppose a gun enhancement; and failed to oppose the preponderance of the evidence standard of proof for the sentencing enhancements. (Motion at 4-8.) Petitioner also contends the Government should be estopped from asserting inconsistent positions on the issue of Petitioner's primary occupation; the Court erred in applying a sentencing enhancement based on a finding Petitioner had assumed a supervisory or managerial role in the offense; the Court erred by failing to permit allocution after remand; and the sentence was not substantively reasonable. (Motion at 13.)

         Following a review of Petitioner's motion, the Government's request for dismissal, and the record, I recommend that the Court grant the Government's request, and dismiss Petitioner's motion.

         I. Factual Background and Procedural History

         Petitioner pled guilty to conspiracy to possess with intent to distribute in excess of 28 grams of cocaine base (Count 1), 21 U.S.C. §§ 841(a)(1), (b)(1)(B), 846; and possession with intent to distribute in excess of 28 grams of cocaine base (Count 4), 21 U.S.C. § 841(a)(1), (b)(1)(B).[1] (Judgment at 1.)

         The Court applied the sentencing guidelines as follows: based on the Court's acceptance of the parties' agreement to recommend a base offense level of 30, the base offense level was 30. (Sentencing Tr., ECF No. 319 at 25-26.) The Court determined that the following enhancements applied: two levels, pursuant to USSG § 2D1.1(b)(1), because Petitioner possessed a firearm; two levels, pursuant to USSG §§ 2D1.1(b)(15)(E), 4B1.3, because Petitioner committed the offense as part of a pattern of criminal conduct engaged in as a livelihood; and three levels, pursuant to USSG § 3B1.1(b), because Petitioner acted as a manager or supervisor in the offense, and the criminal activity involved five or more persons. (Sentencing Tr. at 16-17, 20-21, 24, 35-36.) The Court subtracted three levels, pursuant to USSG § 3E1.1, for acceptance of responsibility. (Id. at 36.) The total offense level was 34; a criminal history category of III applied; and the sentencing guidelines range was 188-235 months. (Id. at 36.)

         The Court sentenced Petitioner to prison terms of 132 months on each of the counts, to run concurrently, to be followed by terms of five years of supervised release on each of the counts, to run concurrently. (Judgment at 2-3.)

         Petitioner appealed from the sentence. The First Circuit noted the case involved issues of first impression concerning the enhancement for criminal livelihood:

The criminal livelihood enhancement applies where the government proves, by a preponderance of the evidence, that two conditions have been met: (1) the defendant committed the relevant offense as “part of a pattern of criminal conduct” and (2) the defendant was engaged in that conduct “as a livelihood.” [USSG] §§ 2D1.1(b)(15)(E), 4B1.3. On appeal, Gordon argued only that the government had failed to meet its burden as to the second condition.
The Guidelines further divide that second condition into two prongs. A defendant was engaged in a pattern of criminal conduct “as a livelihood” only if:
(A) the defendant derived income from the pattern of criminal conduct that in any twelve-month period exceeded 2, 000 times the then existing hourly minimum wage under federal law[, ] [meaning $14, 500 in the instant case]; and
(B) the totality of circumstances shows that such criminal conduct was the defendant's primary occupation in that twelve-month period (e.g., the defendant engaged in criminal conduct rather than regular, legitimate employment; or the defendant's legitimate employment was merely a front for the defendant's criminal conduct).
Id. § 4B1.3 app. n.2. Gordon argued on appeal, as he had before the district court, that the government had failed to meet its burden as to both prongs.

852 F.3d at 128.

         The First Circuit noted that at sentencing, counsel argued that only net income should be included in determining whether Petitioner's income from criminal activity exceeded $14, 500. Id. at 129. (Sentencing Tr. at 18-19.) The First Circuit also noted that because this Court had not explicitly stated whether its finding that Petitioner's income exceeded $14, 500 was based on net income or gross income, the First Circuit had remanded the case for clarification on the issue. 852 F.3d at 129.

         Following the remand, and following supplemental briefing in which the parties agreed the Court should not take further evidence on the issue, this Court “conclude[d] that a plain reading of ‘derived income' in the Guidelines calls for the consideration of gross income, rather than net income.” (Order in Response to First Circuit Remand, ECF No. 394 at 1, 4.)

         On appeal after this Court's order after remand, the First Circuit concluded: “We find no error in the district court's interpretation of § 4B1.3 app. n.2(A), absent further clarification by the [United States Sentencing] Commission. Even if we are wrong in reaching that conclusion, we affirm anyway, as the government's harmless error argument is correct.” Id. at 134 (citing United States v. Gordon, 2017 WL 383349, at *3 (D. Me. Jan. 27, 2017)). The Government's harmless error argument was in turn based on this Court's finding that “[e]ven without the livelihood enhancement, the Court would have imposed this same sentence.” (Order in Response to First Circuit Remand at 6.) 852 F.3d at 130.

         The First Circuit also noted that this Court found at sentencing Petitioner's primary occupation was drug trafficking, not his work as a barber. 852 F.3d at 128-29. Counsel argued at sentencing that the Government had not met its burden to prove drug trafficking was Petitioner's primary occupation. (Sentencing Tr. at 19-20.) This Court found Petitioner had worked as a barber, but not in “any substantial degree during the period of time in question.” (Id. at 21.)

The First Circuit concluded:
We affirm Gordon's sentence because the district court did not commit legal error when it used Gordon's gross, rather than net, income derived from drug trafficking to determine that his income surpassed the $14, 500 threshold, nor did the court commit factual error when it concluded that drug trafficking was Gordon's primary occupation.

Gordon, 852 F.3d at 127.

         The Supreme Court denied Petitioner's petition for a writ of certiorari on October 2, 2017. Gordon, 138 S.Ct. 256.

         Petitioner asserts that he placed his section 2255 motion in the prison mailing system on May 9, 2018. (Motion at 12.)

         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); United States v. DiCarlo, 575 F.2d 952, 954 (1st Cir. 1978). When “a petition for federal habeas relief is presented to the judge who presided at the petitioner's trial, the judge is at liberty to employ the knowledge gleaned during previous proceedings and make findings based thereon without convening an additional hearing.” United States v. McGill, 11 F.3d 223, 225 (1st Cir. 1993).

         A collateral challenge is not a substitute for an appeal. United States v. Frady, 456 U.S. 152, 165 (1982); Berthoff v. United States, 308 F.3d 124, 127 (1st Cir. 2002). “Accordingly, a defendant's failure to raise a claim in a timely manner at trial or on appeal constitutes a procedural default that bars collateral review, unless the defendant can demonstrate cause for the failure and prejudice or actual innocence.” Berthoff, 308 F.3d at 127-28. Procedural default is an affirmative defense. Sotirion v. United States, 617 F.3d 27, 32 (1st Cir. 2010). The First Circuit has recognized that “federal courts have the authority to consider procedural default sua sponte.Rosenthal v. O'Brien, 713 F.3d 676, 683 (1st Cir. 2013) (citing Brewer v. Marshall, 119 F.3d 993, 999 (1st Cir. 1997)); see also Daniels v. United States, 532 U.S. 374, 382-83 (2001) (recognizing that “procedural default rules developed in the habeas corpus context apply in § 2255 cases”) (citing Frady, 456 U.S. at 167-68).

         An allegation of ineffective assistance of counsel can excuse a procedural default if the petitioner demonstrates that counsel's representation “fell below an objective standard of reasonableness.” Strickland v. Washington, 466 U.S. 668, 688 (1984). The petitioner must also demonstrate that “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694. A district court reviewing a claim of ineffective assistance of counsel need not address both prongs of the test because a failure to meet either prong will undermine the claim. Id. at 697.

         If a petitioner's “claims fail on the merits, his related claims that counsel rendered ineffective assistance in failing to press the claims at trial or on appeal must also fail.” Tse v. United States, 290 F.3d 462, 465 (1st Cir. 2002) (per curiam).

         “Evidentiary hearings on § 2255 petitions are the exception, not the norm, and there is a heavy burden on the petitioner to demonstrate that an evidentiary hearing is warranted. An evidentiary hearing ‘is not necessary when a [§] 2255 petition (1) is inadequate on its face, or (2) although facially adequate, is conclusively refuted as to the alleged facts by the files and records of the case.'” Moreno-Morales v. United States, 334 F.3d 140, 145 (1st Cir. 2003) (citation omitted) (quoting DiCarlo, 575 F.2d at 954 (quotation marks omitted)).

         Summary dismissal of a motion is permitted when the allegations are “‘vague, conclusory, or palpably incredible, '” even “‘if the record does not conclusively and expressly belie [the] claim.'” David, 134 ...

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