United States v. Hill

UNITED STATES OF AMERICA, PLAINTIFF v. OTIS HILL, DEFENDANT

No. 5:19-CR-50053-TLB-MEF-1

United States District Court, W.D. Arkansas, Fayetteville Division

November 29, 2021

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

HON MARK E. FORD, UNITED STATES MAGISTRATE JUDGE

Before the Court is Defendant's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody filed on April 26, 2021. (ECF No. 40). The United States filed its response on May 27, 2021. (ECF No 43). Defendant filed a reply on June 21, 2021, and a supplemental reply on August 31, 2021. (ECF Nos. 45, 46). The matter is ready for report and recommendation.

I. BACKGROUND

On June 26, 2019, Defendant, Otis Hill (“Hill”), was named in an Indictment charging him with three counts of distribution of cocaine, in violation of 21 U.S.C. § 841(a)(1), and one count of possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1). (ECF No. 1). Hill was arrested on June 27, 2019 (ECF No. 6), and he appeared for arraignment before the Hon. Erin L. Wiedemann, United States Magistrate Judge, on July 1, 2019, at which time Hill entered a not guilty plea to the Indictment. (ECF No. 8). John B. “Jack” Schisler (“Schisler”), Assistant Federal Public Defender, was appointed to represent Hill. (ECF No. 10).

On August 1, 2019, Hill appeared before the Hon. Timothy L. Brooks, United States District Judge, for a change of plea hearing. (ECF No. 14). Pursuant to a written Plea Agreement, Hill pleaded guilty to Count Four of the Indictment charging him with knowingly and intentionally possessing with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1). (ECF No. 14; ECF No. 15, ¶ 1). The Court determined that Hill's guilty plea was voluntary and supported by an independent factual basis, his guilty plea was accepted, and the Court deferred approval of the plea agreement until it had an opportunity to review the presentence report. (ECF No. 14).

An initial Presentence Investigation Report (“PSR”) was prepared by the United States Probation Office on September 27, 2019. (ECF No. 16). Timely objections to the PSR were made by both the Government and Hill. (ECF Nos. 19, 20). The PSR was revised to resolve all the objections offered by the Government and Hill, except for Hill's Objection One. (ECF No. 21-1). Hill's Objection One concerned his classification as a career offender. (ECF No. 20, pp. 1-2). The Probation Officer addressed this concern in an Addendum to the PSR, explaining that Hill had had a violent crime conviction and a controlled substance conviction, and thus the sentencing report was correct in utilizing the career offender enhancement calculations. (ECF No. 21-1, pp. 2-3).

A revised final PSR was submitted to the Court on November 21, 2019, with Hill's Objection One remaining unresolved. (ECF No. 24; ECF No. 24-1, p. 1). The PSR determined that Hill was accountable for 59.28 grams of cocaine. (ECF No. 24, ¶ 29). Based on that drug quantity, Hill's base offense level was determined to be 14. (Id., ¶ 35). Classified as a career offender, Hill's offense level was elevated to 32. (Id., ¶ 41). After a three-level reduction for acceptance of responsibility, Hill's total offense level was determined to be 29. (Id., ¶ 42-44). Hill had six criminal history points placing him in criminal history category III, but pursuant to U.S.S.G. § 4B1.1(b), Hill's career offender status placed him in criminal history category VI. (Id., ¶ 80-81). The statutory maximum term of imprisonment for the count of conviction was 20 years.

(Id., ¶ 114). Based upon a total offense level of 29 and a criminal history category of VI, Hill's advisory guidelines imprisonment range was reported to be 151 to 188 months. (Id., ¶ 115).

Hill appeared with his counsel for sentencing on December 12, 2019. (ECF Nos. 27, 37). Upon inquiry by the Court, Hill stated that he was fully satisfied with his counsel. (ECF No. 37, p. 5). The Court determined that Hill had an opportunity to read and discuss the PSR and revisions with his counsel. (Id., pp. 6-8). AFPD Schisler confirmed that Hill's Objection One to the PSR, an objection to Hill's status as a career offender, remained unresolved. (Id., p. 9). It was clarified that the objection concerned whether Hill's predicate convictions for attempt to commit robbery^[1]and conspiracy to possess with intent to distribute cocaine base^[2], both inchoate offenses, fell within the scope of U.S.S.G. §§ 4B1.1 and 4B1.2. (Id., pp. 9-10). AFPD Schisler presented his argument to the Court and, while acknowledging that Eighth Circuit precedent^[3] held that inchoate offenses could be used in determining career offender status, he contended that such precedent was wrongly decided and noted a split among the circuits. (Id., pp. 11-14). Citing United States v. Brown, 916 F.3d 706, 708 (8th Cir. 2019), the Court found that a defendant's prior state court conviction for attempted robbery was appropriately considered a crime of violence as contemplated in U.S.S.G. §§ 4B1.1 and 4B1.2. (Id., pp. 15-16). Next, referring to Mendoza-Figueroa and United States v. Ramirez, 782 Fed.Appx. 521 (8th Cir. 2019) (unpublished), the Court found that conspiracy to commit a drug offense was properly considered a controlled substance offense within the scope of U.S.S.G. §§ 4B1.1 and 4B1.2. (Id., p. 16). Upon such findings, the Court overruled Hill's PSR objection regarding his status as a career offender. (Id.).

Following argument from counsel and a statement from Hill, the Court discussed the § 3553(a) factors and, noting that the effect of Hill's career offender enhancement was “very drastic” (ECF No. 37, p. 58), the Court varied downward to impose a sentence of 100 months imprisonment, followed by three years of supervised release, and a fine of $1, 900.00. (ECF No. 27; ECF No. 37, pp. 63-67). The remaining counts of the Indictment were dismissed. (ECF No. 27; ECF No. 37, p. 67). Judgment was entered by the Court on December 17, 2019. (ECF No. 28).

Hill filed a direct appeal to the Eighth Circuit Court of Appeals. (ECF No. 30). His counsel challenged the inchoate offenses as not qualifying offenses under U.S.S.G. § 4B1.2. (ECF No. 39-1, p. 2). Hill acknowledged that his appeal was filed for the purpose of preserving the issue for an Eighth Circuit en banc or Supreme Court review. (Id.). In an opinion filed on March 3, 2021, the Eighth Circuit affirmed Hill's sentence, finding that the district court properly applied Eighth Circuit precedent. (Id., p. 3). Hill was granted leave to file a pro se supplemental brief, in which he argued that his convictions for attempt to commit robbery were too old to count as a career-offender predicate crime of violence. (Id.). Explaining that the longer of two suspended sentences was later revoked, and Hill's revocation sentence resulted in his incarceration during the 15-year lookback period, the Eighth Circuit rejected the argument. (Id.).

On March 26, 2021, Hill timely filed his § 2255 motion now before the Court. (ECF No. 40). The motion asserts two grounds for relief: (1) ineffective assistance of counsel for failing to argue U.S.S.G. § 4A1.2(a)(2), and (2) the district court misapplied the sentencing guidelines when it sentenced Hill under the career offender enhancement without considering U.S.S.G. § 4A1.2(a)(2). (ECF No. 40, pp 5-7; No. 40-1; No. 46 p. 1). The United States responded to the motion on May 27, 2021. (ECF No. 43). Hill filed a reply to the response on June 21, 2021 (ECF No. 45), and a supplement to the reply (ECF No. 46) was filed on August 31, 2021.

II. DISCUSSION

“A prisoner in custody under sentence . . . claiming the right to be released upon the ground 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, may move the court which imposed the sentence to vacate, set aside or correct the sentence.” 28 U.S.C. § 2255(a). “If the court finds that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate.” 28 U.S.C. § 2255(b). A thorough review of Hill's § 2255 motion and the files and records of this case conclusively shows that Hill is not entitled to relief, and the denial and dismissal of his § 2255 motion with prejudice is recommended.

A. Standards for Ineffective Assistance of Counsel Claims

To prove a claim of ineffective assistance of counsel, a criminal defendant must demonstrate both that counsel's performance was deficient, and that counsel's deficient performance prejudiced the defense. Strickland v Washington, 466 U.S. 668, 687 (1984). To establish the deficient performance prong of the Strickland test, one must show that counsel's representation fell below the “range of competence demanded of attorneys in criminal cases.” Id. at 688. Review of counsel's performance is highly deferential, and there is a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Id. at 689. Moreover, “[s]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable.” United States v. Rice, 449 F.3d 887, 897 (8th Cir. 2006) (quoting...