United States District Court, D. Maine
ORDER RECOMMENDED DECISION ON 28 U.S.C. § 2255
C. NIVISON, U.S. MAGISTRATE JUDGE
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).
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.)
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
Factual Background and Procedural History
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). (Judgment at 1.)
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.
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.)
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
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.
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.
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,
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.
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.
Supreme Court denied Petitioner's petition for a writ of
certiorari on October 2, 2017. Gordon, 138 S.Ct.
asserts that he placed his section 2255 motion in the prison
mailing system on May 9, 2018. (Motion at 12.)
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).
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).
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).
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.
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).
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)).
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 ...