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Reed v. United States

United States District Court, D. Connecticut

November 20, 2017

LAMONT REED, Petitioner,



         Lamont Reed, a prisoner incarcerated at the Federal Correctional Institution, Beckley, has moved to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. Mot. Vacate, Set Aside, or Correct Sentence, Doc. No. 1 (“Mot. Vacate”). Reed argues that Amendment 794 to the United States Sentencing Guidelines-effective after his sentence was imposed-applies retroactively and entitles him to a reduction in his advisory sentencing range. The government responds that Amendment 794 does not apply retroactively, and that even if it did, Reed would not be entitled to a reduction in his sentence. I conclude that Amendment 794-a revision to the purely advisory Sentencing Guidelines-does not provide a basis for habeas relief under section 2255. Therefore, I dismiss Reed's habeas petition for lack of jurisdiction.

         I. Standard of Review

         Section 2255 provides a prisoner in federal custody an opportunity to challenge the legality of his or her sentence. To obtain relief under section 2255, the petitioner must show that his or her prior sentence was invalid because the sentence: (1) was “imposed in violation of the Constitution or laws of the United States”; (2) was imposed “without jurisdiction” by the sentencing court; (3) was “in excess of the maximum authorized by law”; or (4) is “otherwise subject to collateral attack.” 28 U.S.C. § 2255(a). The standard is a high one; even constitutional errors will not be redressed through a section 2255 petition unless they have had a “substantial and injurious effect” that results in “actual prejudice” to the petitioner. Brecht v. Abrahamson, 507 U.S. 619, 623 (1993) (internal citations omitted); Underwood v. United States, 166 F.3d 84, 87 (2d Cir. 1999) (applying Brecht's harmless error standard to section 2255 petition).

         A section 2255 petition “may not be employed to relitigate questions which were raised and considered on direct appeal.” Cabrera v. United States, 972 F.2d 23, 25 (2d Cir. 1992); see also Reese v. United States, 329 F. App'x 324, 326 (2d Cir. 2009) (quoting United States v. Sanin, 252 F.3d 79, 83 (2d Cir. 2001)). That limitation prohibits relitigation of issues that were expressly or impliedly decided on direct appeal. United States v. Ben Zvi, 242 F.3d 89, 95 (2d Cir. 2001). A court may only reconsider an earlier decision if it is “confronted with ‘an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice.'” United States v. Becker, 502 F.3d 122, 127 (2d Cir. 2007) (quoting United States v. Tenzer, 213 F.3d 34, 39 (2d Cir. 2000)).

         Furthermore, a section 2255 petition is “not a substitute for direct appeal.” Harrington v. United States, 689 F.3d 124, 129 (2d Cir. 2012) (citing Zhang v. United States, 506 F.3d 162, 166 (2d Cir. 2007)). A court will not review claims that the petitioner failed to properly raise on direct review “unless the petitioner shows (1) good cause to excuse the default and ensuing prejudice, or (2) actual innocence . . . .” Id. (citing Bousley v. United States, 523 U.S. 614, 622 (1998)). In the context of a habeas petition, “‘actual innocence' means factual innocence, not mere legal insufficiency.” Bousley, 523 U.S. at 623.

         The petitioner bears the burden of proving, by a preponderance of the evidence, that he is entitled to relief. See Napoli v. United States, 45 F.3d 680, 683 (2d Cir. 1995). A district court is not required to accept the petitioner's factual assertions as credible “where the assertions are contradicted by the record in the underlying proceeding.” Puglisi v. United States, 586 F.3d 209, 214 (2009). Section 2255 also requires that the district court hold a hearing on the petitioner's motion unless “the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.” Chang v. United States, 250 F.3d 79, 85 (2d Cir. 2001). But “although a hearing may be warranted, that conclusion does not imply that a movant must always be allowed to appear in a district court for a full hearing if the record does not conclusively and expressly belie his claim.” Id. (citing Machibroda v. United States, 368 U.S. 487, 495 (1962)). “If it plainly appears from the [petition], any attached exhibits, and the record of prior proceedings that the [petitioner] is not entitled to relief, the judge must dismiss the [petition].” Puglisi, 586 F.3d at 213.

         II. Background

         Reed's current petition was preceded by a criminal case, United States v. Reed, 3:12-cr-00074 (WWE) (D. Conn.), and an appeal, United States v. Reed, 14-3812 (2d Cir.). Throughout this section, I use “Cr. Doc.” to refer to docket entries in Reed's criminal case, and “App. Doc.” to refer to docket entries in his appeal.

         A. Indictment and Plea

On April 9, 2012, Lamont Reed was indicted (along with seventeen others) for conspiracy to possess with intent to distribute 280 grams or more of a mixture or substance containing a detectable amount of cocaine base (“crack cocaine”), in violation of 21 U.S.C. §§ 841(b)(1)(A)(iii) & 846. Indictment, Cr. Doc. No. 12. The charges were brought after an FBI-led investigation into drug trafficking in New Haven by a street gang known as the Grape Street Crips. Final Presentence Report, Cr. Doc. No. 877, at 6 (“PSR”).

         On November 7, 2013, Reed pled guilty before United States Magistrate Judge Holly B. Fitzsimmons, pursuant to a written plea agreement, to the lesser included offense of conspiracy to possess with intent to distribute 28 grams or more of a mixture or substance containing a detectable amount of cocaine base, in violation of 21 U.S.C. §§ 841(b)(1)(B)(iii) & 846. See Plea Agreement, Cr. Doc. No. 673. Judge Fitzsimmons issued findings and recommended that Reed's guilty plea be accepted by the court. Findings & Recommendation, Cr. Doc. No. 674.

         B. Sentencing

         A presentence report was ordered and prepared by the United States Probation Office, which calculated Reed's advisory sentencing guidelines using the 2013 Guidelines manual. Because Reed's conduct “conservatively include[d] at least 203 grams of cocaine base, ” the Probation Office calculated a base offense level of 30 pursuant to U.S.S.G. § 2D1.1(c)(5) (offense involving distribution of at least 196 grams, but less than 280 grams, of cocaine base). PSR, Cr. Doc. No. 877, at 11. The Probation Office subtracted three levels for acceptance of responsibility, resulting in a total offense level of 27. Id. at 12. Reed's criminal convictions were calculated to yield a criminal history score of 17, which placed Reed in criminal history category VI. Id. at 17. Reed's advisory guideline range therefore was 130 to 162 months. Id. at 23. The Probation Office noted, however, that the Sentencing Commission had issued a proposal for public comment-subsequently adopted as Amendment 782-that would reduce Reed's total offense level to 25, which would result in an advisory guideline range of 110 to 137 months. Id. at 25. In its presentencing memorandum, the government did not object to that reduction of Reed's total offense level, see Gov't's Sentencing Mem., Cr. Doc. No. 887, and the Court used a total offense level of 25 at sentencing. See Sentencing Hr'g Tr., Cr. Doc. No. 1014, at 35.

         On September 4, 2014, United States District Judge Warren W. Eginton accepted Reed's proposed guilty plea. Id. at. Judge Eginton then heard argument from counsel and a statement by Reed. Reed's counsel extensively addressed “Reed's involvement” in the criminal conspiracy, and contended that Reed “was only on the phone discussing” crack cocaine and “looking for connections.” Sentencing Hr'g Tr., Cr. Doc. No. 1014, at 7. Reed, his counsel emphasized, “wasn't pounding the streets, [and] wasn't distributing anything.” Id. He “was never . . . alleged as a member of the Grape Street Grips, ” and “was never . . . alleged [to have participated] in any hand-to-hand transactions.” Id. at 8. Reed's attorney also noted that other defendants in Reed's case who were “gang member[s], . . . drug dealer[s], . . . [and] shooter[s] for the gang” had received sentences ranging between 18 and 64 months. See Id. at 9-10. Judge Eginton acknowledged that of the “13 [defendants] sentenced” in Reed's case, “none of them were close to [Reed's guideline minimum of] 110 months, ” but he explained that the apparent disparity was due to Reed's “past history” and extensive criminal record. Id. at 10, 13; see also Id. at 18, 22-23 (Reed's criminal record was “why there seem[ed] to be a disparity . . . between what [Judge Eginton] did with 13 others and what [he] should be doing here.”).

         The government disputed Reed's attorney's characterization of Reed as a minor participant. The Assistant United States Attorney argued that Reed “was a substantial player in [the] drug operation, ” and that Reed and the leader of the Grape Street Crips “pooled their money together several times a week to purchase wholesale quantities of cocaine.” Id. at 15. “[T]he suggestion that [] Reed . . . didn't play a significant role . . . [was] actually inaccurate, ” asserted the government. Judge Eginton “agree[d] with the government” that Reed's role in the offense was not insignificant, and added that he thought “[P]robation agree[d] with the government, ” as well. Id. at 16.

         Reed then made a statement to Judge Eginton, in which he argued that he was “not responsible for [] 203 grams” of crack cocaine, “was [not] a substantial player, ” and was “no big-time drug dealer.” Id. at 27-28. Reed's insistence that he was “not responsible for 203 grams” led his attorney to follow up that Reed did not “want[] to withdraw his plea.” Id. at 30. Reed clarified that he was not seeking to withdraw his plea and was willing to be sentenced “based upon the involvement of 203 grams of cocaine base.” See Id. at 33.

         Judge Eginton proceeded to calculate Reed's advisory guidelines, address the considerations of 18 U.S.C. § 3553(a), and impose a sentence. He began with the base offense level of 30 for 203 grams of crack cocaine. Id. at 35; see U.S.S.G. ยง 2D1.1(c)(5). He reduced three levels for acceptance of responsibility and two levels to account for the proposed amendment to the Sentencing Guidelines, but did not reduce any levels for role in the offense. Sentencing Hr'g Tr., Cr. Doc. No. 1014, at 35. The result, Judge Eginton calculated, was a ...

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