Fraction v. United States

MARCAL FRACTION, Petitioner v. UNITED STATES OF AMERICA Respondent

CASE NO. 3:14-CR-305

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF PENNSYLVANIA

September 29, 2017

(MANNION, D.J.)

MEMORANDUM

Pending before the court is petitioner Marcal Fraction's ("Fraction") pro se Motion to Vacate, Set Aside, or Correct his 120-month sentence of imprisonment imposed on August 16, 2017. (Doc. 540). Fraction is currently serving his prison sentence at FCI-McKean in Bradford, Pa. Fraction's motion is filed pursuant to 28 U.S.C. §2255 and is based upon ineffective assistance of counsel claims against his trial counsel. Fraction claims that his counsel was ineffective for failing to file a requested appeal alleging that the court erred in determining that he was a career offender under the Sentencing Guidelines and, he requests the court to reinstate his appeal rights and to resentence him without the career offender classification. Upon the court's review of the record in this case, Fraction's motion, (Doc. 540), as well as the government's response, (Doc. 543), Fraction's motion will be DENIED without the need for an evidentiary hearing.

I. BACKGROUND¹

On November 25, 2014, an Indictment was filed against Fraction and several co-defendants. (Doc. 47). On October 5, 2016, Fraction pled guilty to Count 1 of the Indictment charging him with conspiracy of possession with intent to distribute cocaine, in violation of 21 U.S.C. §846, pursuant to a plea agreement. (Doc. 401, Doc. 412). The court directed that a pre-sentence report ("PSR") be prepared. The final PSR was filed on January 20, 2017. (Doc. 496). The PSR found that Fraction was a career offender based on his three prior drug trafficking convictions.

The PSR calculated a base offense level of 16, given the amount (100 grams but less than 200 grams) of cocaine involved in Fraction's offense. The PSR, (Doc. 496 at 8), then found that Fraction was a career offender and stated as follows:

The defendant was at least 18 years old at the time of the instant offense of conviction; the instant offense of conviction is a felony that is a controlled substance offense; and the defendant has at least two prior felony convictions of controlled substance offenses (paragraphs 34, 36, and 38); therefore, the defendant is a career offender. The offense level for a career offender is 32 because the statutory maximum term of imprisonment is 20 years, under USSG §4B1.1(b)(3).²

Fraction's offense level was also reduced by three levels for acceptance of responsibility, pursuant to USSG §3E1.1(a) and §3E1.1(b), rendering his total offense level a 29. (Id.).

The maximum term of imprisonment Fraction faced was 20 years pursuant to of 21 U.S.C. §841(b)(1) (C). The PSR concluded that based upon a total offense level of 29 and a criminal history category of VI, Fraction's guideline imprisonment range was 151 to 188 months. (Id. at 14).

Fraction filed objections to the PSR, (see Doc. 497), claiming, in part, that he was entitled to a downward departure from the guidelines pursuant to USSG §4A1.3(b) based on an over representation of his criminal history. He then filed a sentencing memorandum on February 22, 2017. (Doc. 513).

Fraction's sentencing hearing was held on February 23, 2017. (Doc. 522). Fraction's counsel argued that if Fraction technically was a career offender under the guidelines, the career offender guideline substantially over represented his criminal history. The court overruled Fraction's objections and adopted the PSR, (Doc. 526), and then sentenced Fraction to a term of 120 months imprisonment, which was below the recommended guideline range, followed by a 3-year term of supervised release. Fraction was also ordered to pay a special assessment of $100. (Doc. 525). Fraction began serving his 120-months prison sentence on March 17, 2017.

Fraction did not file a direct appeal of his sentence to the Third Circuit Court of Appeals.

On June 12, 2017, Fraction sent a letter to this court, (Doc. 533), asking whether he was eligible for re-sentencing under United States v. Jordan, 853 F.3d 1334 (10^th Cir. 2017), and United States v. Jenkins, 854 F.3d 181 (2d Cir. 2017). Fraction stated that in Jenkins, the Second Circuit "reversed a with-in guidelines sentence as substantively unreasonable where the court neglected to consult a readily available guideline sentencing statistic from the U.S. Guidelines Sentencing Commission." Specifically, Fraction contends that:

This also may have happened in my case as it is completely not understood by me how I received the major amount of time as opposed to my eight co-defendants that were also sentenced in this district court. If anyone had been the least culpable in my case, it was me, not them, but most likely due to their cooperation with the feds against me, it was used to distribute to me the most time. 120 months I was given and they themselves received a fraction of this and again, I had the least culpability of all of us.

As relief in his letter, Fraction asks the court to appoint him new counsel to determine if he is eligible for re-sentencing based on the alleged "new guidelines and provisions" and based on Jordan and Jenkins.

On August 16, 2017, Fraction timely filed his instant Motion to Vacate, Set Aside, or Correct his February 23, 2017 sentence pursuant to 28 U.S.C. §2255, seeking reinstatement of his right to appeal and re-sentencing without career criminal classification. (Doc. 540). He simultaneously filed a brief insupport. (Doc. 541). On September 7, 2017, the government filed a brief in opposition. (Doc. 543). Fraction did not file a traverse and the time within which it was due has expired.

II. STANDARD

When a district court judge imposes a sentence on a defendant who believes "that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, [the defendant] may move the court which imposed the sentence to vacate, set aside or correct the sentence." 28 U.S.C. §2255, ¶1; see United States v. Eakman, 378 F.3d 294, 297-98 (3d Cir. 2004).

The rule states that "[i]f 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." See United States v. Bendolph, 409 F.3d 155, 165 n. 15 (3d Cir. 2005) (stating district courts have the power to dismiss petitions sua sponte during the Rule 4 stage of habeas proceedings).

A §2255 motion "is addressed to the sound discretion of the district court." United States v. Williams, 615 F.2d 585, 591 (3d Cir. 1980). "[A] motion under 28 U.S.C. §2255 is the proper procedure for a federal prisonerto raise a collateral attack on his or her federal sentence for any error that occurred at or prior to sentencing." Paulino v. U.S., 2010 WL 2545547, *2 (W.D.Pa. June 21, 2010) (citations omitted). "In order to prevail on a §2255 motion to vacate, set aside, or correct a sentence, a Petitioner must show '(1) an error of constitutional magnitude; (2) a sentence imposed outside the statutory limits; or (3) an error of fact or law that was so fundamental as to render the entire proceeding invalid.'" U.S. v. Bates, 2008 WL 80048, *2 (M.D.Pa. Jan. 7, 2008) (quoting Mallet v. U.S., 334 F.3d 491, 496-97 (6^th Cir. 2003)). "The petitioner bears the burden of proof under §2255 and must demonstrate his right to relief by a preponderance of the evidence." U.S. v. Ayers, 938 F.Supp.2d 108, 112 (D.D.C. 2013) (citation omitted). Fraction's instant claims fall within the purview of §2255 since they challenge the validity of his sentence. Bates, 2008 WL 80048, *3 ("Claims of ineffective assistance of counsel may be brought in the first instance by way of a §2255 motion regardless of whether the movant could have asserted the claim on direct appeal.") (citing Massaro v. U.S., 538 U.S. 500, 504, 123 S.Ct. 1690 (2003)).

The Sixth Amendment to the United States Constitution guarantees a criminal defendant "the assistance of counsel for his defense." U.S. Const. amend. VI. The U.S. Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984) established a two-prong test to evaluate the effectiveness of the assistance of counsel. In the first prong, the defendant must show "that counsel's performance was deficient," id., 687, and must prove this by"showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. In addition, the defendant must show that "counsel's representation fell below an objective standard of reasonableness." Id., 687-88.

A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy.

Id., 689.

In the second prong, a defendant must show that counsel's deficient performance "prejudiced the defense," because "counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id., 687. "It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding. Virtually every act or omission of counsel would meet that test, cf. United States v. Valenzuela-Bernal, 458 U.S. 858, 866-867 (1982), and not every error that conceivably could have...