United States District Court, D. Nebraska
MEMORANDUM AND ORDER
F. Bataillon Senior United States District Judge
matter is before the court on defendant's Motion under
28 U.S.C. § 2255 to Vacate, Set Aside, or
Correct Sentence by a Person in Federal Custody. Filing
No. 42. The government has answered and objected to the
motion. Filing No. 47. The transcripts for both the
plea and sentencing are filed. Filing Nos. 48 and
government charged defendant in a two count indictment with
conspiracy to distribute 50 grams or more of actual
methamphetamine in violation of 21 U.S.C. §§
841(a)(1), 841(b)(1) and 846, and possession of 50 grams or
more of actual methamphetamine with the intent to distribute,
in violation of 21 U.S.C. §§ 841(a)(1) and
841(b)(1). Filing No. 1. Both offenses carry a
statutory mandatory minimum sentence of 10 years, and were
punishable by up to life imprisonment, a $10, 000, 000 fine,
and not less than 5 years of supervised release. Attorney
Adam Sipple represented the defendant.
September 1, 2015, Medina pleaded guilty to the conspiracy
charge. Filing No. 24. In the Petition to Plead, Medina
stated that he had sufficient time to discuss the case with
his attorney, that he told his attorney everything about the
case, and that he was satisfied with the job his attorney had
done for him. Filing No. 26 at ECF p.2. He further
acknowledged that he understood the charges against him, and
that he knew he had a right to plead not guilty. Id.
at 2-3. He indicated he understood the penalties he faced,
including the 10-year statutory minimum sentence. Filing
No. 26 at ECF p. 6.
plea agreement the government agreed to dismiss Count II. The
elements and the facts were in the plea agreement.
The parties stipulated to a few facts regarding the
application of the Sentencing Guidelines. The parties agreed
to a drug quantity which would establish a base offense level
of 34, that the defendant would receive a 3 level reduction
for acceptance of responsibility, and that Medina was not
eligible for the safety valve. Filing No. 27 at ECF pp.
3-4. The original Plea Agreement stated that Medina
would not request any departures or variances from a
Guideline sentence. The Plea Agreement shows that provision
was changed, by interlineation, to allow Medina to pursue any
departure or variance motions. Filing No. 27 at ECF pp.
4-5. In the Plea Agreement, Medina certified that he had
read the agreement, that he discussed the terms of the
agreement with his attorney, and that he fully understood its
meaning and effect. Filing No. 27 at ECF p.8.
Brief, Filing No. 47 at 2. Following preparation of
the PSR, the base offense level was a 34 and defendant
received a 3 level reduction for acceptance of
responsibility. He had 4 criminal history points and fell in
a criminal history category of III. The guideline range was
135-168 months, and defendant made no objections to the PSR.
At sentencing Mr. Sipple requested a departure and asked the
court to impose the statutory mandatory 10 year minimum. The
court did so.
files this § 2255 motion alleging: (1) he “[d]id
not fully understand the reason why the sentence was so
harsh.” Filing No. 42 at ECF p.4; and (2) he
does not believe that Mr. Sipple “did the best job in
making sure that he [Medina] got the best possible
28 U.S.C. § 2255, a federal prisoner has
“an avenue for relief if his ‘sentence was
imposed in violation of the Constitution or laws of the
United States, or . . . was in excess of the maximum
authorized by law.'” King v. United
States, 595 F.3d 844, 852 (8th Cir. 2010) (quoting 28
U.S.C.A. § 2255(a)). Ineffective assistance of counsel
issues are appropriately raised in collateral proceedings.
See United States v. Hughes, 330 F.3d 1068,
1069 (8th Cir. 2003). “The right to counsel is a
fundamental right of criminal defendants; it assures the
fairness, and thus the legitimacy, of our adversary
process.” Kimmelman v. Morrison, 477 U.S. 365,
374 (1986). Under the Fifth and Sixth Amendments, a criminal
defendant is entitled to assistance of counsel at trial and
at his first appeal of right. See Gideon v.
Wainwright, 372 U.S. 335, 344 (1963); Evitts v.
Lucey, 469 U.S. 387, 392-93 (1985) (the fundamental
right to effective assistance of counsel extends to a
criminal defendant's first appeal of right). The right to
counsel includes the right to reasonably effective counsel.
Strickland v. Washington, 466 U.S. 668, 686 (1984).
In order to make out a claim of ineffective assistance, a
petitioner must satisfy the familiar Strickland
standard, “which requires a showing ‘that his
lawyer's performance fell below the minimum standards of
professional competence (deficient performance) and that
there is a reasonable probability that the result of the
proceedings would have been different if his lawyer had
performed competently (prejudice).'” King v.
United States, 595 F.3d at 852 (quoting Alaniz v.
United States, 351 F.3d 365, 367-68 (8th Cir. 2003)).
performance “is that which falls below the ‘range
of competence demanded of attorneys in criminal
cases.'” Sinisterra v. United States, 600
F.3d 900, 906 (8th Cir. 2010) (quoting Strickland,
466 U.S. at 687). “The standard is an objective one,
viewed in light of professional norms prevailing when the
representation took place.” Id.; Bobby v.
Van Hook, 130 S.Ct. 13, 16 (2009) (per curiam). We must
consider “whether counsel's assistance was
reasonable considering all the circumstances.”
Strickland, 466 U.S. at 688. The reasonableness of
counsel's challenged conduct must be judged on the facts
of the particular case, viewed as of the time of
counsel's conduct. King, 595 F.3d at 853.
establish prejudice under Strickland, a petitioner
must “demonstrate that there is a reasonable
probability that, but for counsel's claimed
unprofessional errors, the result of the proceeding would
have been different.” Christenson v. Ault, 598
F.3d 990, 996 (2010). In the sentencing context, prejudice
can be found with a showing that, had an argument been
presented, a defendant likely would have received a much
shorter sentence. King, 595 F.3d at 852-53.
“An error increasing a defendant's sentence by as
little as six months can be prejudicial within the meaning of
Strickland.” Alaniz, 351 F.3d at 368;
see also United States v. Spigner, 416 F.3d
708, 711 (8th Cir. 2005); King, 595 F.3d at 853-54.