United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Smith Camp Senior United States District Judge.
matter is before the Court on the Defendant's Motion
Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct
Sentence by a Person in Federal Custody (§ 2255 Motion),
ECF No. 48. Defendant Chadwick Board also submitted a
Memorandum with Points and Authorities in Support of his
Motion, ECF No. 49.
4(b) of the Rules Governing Section 2255 Proceedings for the
United States District Courts requires initial review of a
§ 2255 motion, and describes the initial review process:
The judge who receives the motion must promptly examine it.
If it plainly appears from the motion, any attached exhibits,
and the record of prior proceedings that the moving party is
not entitled to relief, the judge must dismiss the motion and
direct the clerk to notify the moving party. If the motion is
not dismissed, the judge must order the United States
attorney to file an answer, motion, or other response within
a fixed time, or to take other action the judge may order.
pled guilty to Counts I and II of a four-count Indictment,
charging him with conspiracy to distribute or possess with
intent to distribute 50 grams or more of a mixture or
substance containing methamphetamine in violation of 21
U.S.C. §§ 841(a)(1), 841 (b)(1), and 846 (Count I),
and use of a firearm during and in relation to a drug
trafficking crime that may be prosecuted in federal court, in
violation of 18 U.S.C. § 924(c)(1)(A) (Count II). In his
plea agreement, ECF No. 31, Board agreed that he should be
held responsible, beyond a reasonable doubt, for at least 50
grams, but less than 200 grams of a mixture or substance
containing methamphetamine. Id. at Page ID 65. With
respect to the firearm, Board agreed that the following facts
were undisputed: A search of his residence “revealed 20
firearms including a Glock 9 mm handgun found near drug
paraphernalia indicative of drug dealing.” Id.
at Page ID 63. In his plea agreement, Board also waived his
right of appeal. Id. at Page ID 67.
was sentenced on April 9, 2018, to a term of 77 months
incarceration on Count I and five years incarceration on
Count II, to be served consecutively, followed by five years
of supervised release on Counts I and II, to be served
concurrently. His sentence on Count I was at the lowest end
of the applicable Sentencing Guideline range of 77 to 96
months, and his sentence on Count II was the statutory
mandatory minimum sentence, made consecutive by operation of
§ 2255 Motion was timely filed and it is his first such
Motion. He asserts that his legal counsel was ineffective in
three respects: (1) Failure to object to the finding in the
Presentence Investigation Report that Board should be held
responsible for a total of 187.1 grams of a mixture of
methamphetamine, because the quantity determination was based
largely on the statements of confidential informants; (2)
Failure to argue that the Court should vary downward from the
applicable Guideline range on Count I in light of the
mandatory consecutive sentence imposed on Count II; and (3)
Failure to argue that the Glock 9 mm handgun allegedly used
in connection with the drug trafficking crime was new and
still in its box, and therefore could not have been used in
furtherance of the drug trafficking offense.
establish ineffective assistance of counsel, Board must
satisfy both prongs of the test articulated by the United
States Supreme Court in Strickland v. Washington,
466 U.S. 668 (1984). The performance prong requires a showing
that counsel performed outside the wide range of reasonable
professional assistance and made errors so serious that
counsel failed to function as the kind of counsel guaranteed
by the Sixth Amendment. Id. at 687-89. The prejudice
prong requires a movant to demonstrate that seriously
deficient performance of counsel prejudiced the defense.
Id. at 687. “To establish prejudice, the
defendant must demonstrate a reasonable probability that the
result of the proceeding would have been different, but for
counsel's deficiency.” United States v.
Luke, 686 F.3d 600, 604 (8th Cir. 2012).
with respect to counsel's alleged failure to object to
the finding in the Presentence Investigation Report that
Board should be held responsible for a total of 187.1 grams
of a mixture of methamphetamine, Board ignores the fact that
he pled guilty to conspiracy to distribute, or possess with
intent to distribute, 50 grams or more of a mixture or
substance containing methamphetamine, and that he stipulated
in his plea agreement that he was responsible, beyond a
reasonable doubt, for at least 50 grams, but less than 200
grams of a mixture of methamphetamine. In view of the plea
and the plea agreement, an objection to the factual findings
regarding drug quantity in the Presentence Investigation
Report would have been senseless and fruitless. His guideline
range under the Sentencing Guidelines was not altered by a
finding that he was responsible for 187.1 grams of a mixture
or substance containing methamphetamine, rather than 50
grams. See U.S.S.G. § 2D1.1(c)(8).
Board argues that his lawyer should have brought to this
Court's attention the decision of the United States
Supreme Court in Dean v. United States, 137 S.Ct.
1270 (2017), and informed this Court that it had the power to
vary downward on his sentence on Count I, taking into
consideration the mandatory consecutive nature of the
sentence on Count II. This Court was aware of the holding in
Dean and this Court's ability to vary downward
from the guideline range on Count I and to consider the
mandatory consecutive nature of the sentence on Count II.
This Court fashioned a total sentence which it considered to
be sufficient but not greater than necessary to satisfy all
the sentencing objectives of 18 U.S.C. § 3553(a). Among
the factors considered was Board's extensive criminal
history, yielding 21 criminal history points.
with respect to Board's firearms, he acknowledged
possession of 20 firearms in his home; that the Glock 9 mm
handgun was near drug paraphernalia indicative of drug
dealing; and that a cooperating witness would state that he
had seen Board in possession of a Glock 9 mm handgun during a
drug transaction. See Plea Agreement, ECF No. 31 at
Page ID 63. He further acknowledged that he “kept my
guns, in the garage where the drugs I had for sale to support
my own habit were kept.” Plea Petition, Filing No. 30
at Page ID 57. His lawyer did not provide ineffective
assistance by failing to argue that the ...