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Rodgers v. United States

United States District Court, E.D. Michigan, Southern Division

December 23, 2014

DESMOND REGINALD RODGERS, Movant,
v.
UNITED STATES OF AMERICA, Respondent. Civil Case No. 13-13836

ORDER DENYING MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE [204]

ARTHUR J. TARNOW, Senior District Judge.

On March 21, 2012, Movant pleaded guilty to aiding and abetting a bank robbery, the use of a firearm during the bank robbery, and the robbery of a pharmacy. On September 6, 2012, the Court sentenced Movant to 200 months of imprisonment. Movant filed a Motion to Vacate, Set Aside, or Correct Sentence [204] on September 9, 2013. Movant filed supplements to the motion [222, 224] on June 23 and October 20, 2014. The government filed a Response [223] on July 7, 2014.

For the reasons stated below, Movant's Motion to Vacate, Set Aside, or Correct Sentence [204] is DENIED.

FACTUAL BACKGROUND

In the spring of 2011, Movant served as a lookout and provided a getaway vehicle in the armed robberies of a bank and a pharmacy. On September 13, 2011, a grand jury charged Movant with five counts arising from his role in aiding and abetting the robberies. Count One charged Movant with conspiracy, in violation of 18 U.S.C. § 371. Counts Two and Four charged Movant with robbery of the bank and pharmacy, in violation of 18 U.S.C. § 2113 and § 2118, respectively. Counts Three and Five charged Movant with the use or carrying of a firearm during the robberies, in violation of 18 U.S.C. § 924(c).

Movant was arrested and appointed counsel on September 27, 2011. He and the government entered into a stipulation on November 30, 2011, providing for excludable delay under the Speedy Trial Act from October 31, 2011 to March 21, 2012. On February 15, 2012, Movant's counsel filed a Motion to Withdraw [80]. Two days later, Movant filed a Motion to Dismiss for Ineffective Assistance of Counsel [82]. The Court permitted Movant's counsel to withdraw on February 22, 2012, and Movant was appointed new counsel.

Movant and the government entered a Rule 11 plea agreement on March 21, 2012. At a plea hearing on the same date, the Court found Movant's pleas to be voluntary and supported by a sufficient factual basis. Pursuant to the agreement, the government agreed to dismiss Counts One (conspiracy) and Five (use or carrying of a firearm during the pharmacy robbery). In return, Movant pleaded guilty to aiding and abetting both robberies and the use or carrying of a firearm during the bank robbery (Counts Two, Three, and Four). The parties agreed that Movant qualified as a career offender under United States Sentencing Guidelines § 4B1.1, resulting in a sentencing guideline range of 262 to 327 months.

On July 25, 2012, Movant's second counsel made an oral motion to withdraw, and the Court held a hearing on the motion. Movant attributed the breakdown of the attorney-client relationship to his counsel's ineffective assistance. The Court permitted Movant's second counsel to withdraw, and Movant was appointed new counsel.

Movant filed a Sentencing Memorandum [123] on August 30, 2012, urging the Court to impose a sentence below the sentencing guideline range. Movant acknowledged that his criminal history included "two prior drug offenses and a crime of violence, " qualifying Movant as a career offender, but argued that the resulting guideline range overrepresented the seriousness of his prior offenses. Movant argued that his personal background and relatively minor role in the robberies further justified a downward departure. The Court held a sentencing hearing on September 6, 2012. The Court imposed a sentence well below the guideline range, sentencing Movant to a prison term of 200 months (consisting of a 116-month term on Counts Two and Four and a consecutive, statutorily mandated 84-month term on Count Three).

On September 9, 2013, Movant filed the instant Motion to Vacate, Set Aside, or Correct Sentence [204] pursuant to 28 U.S.C. § 2255. Movant filed a supplement, styled as a Motion for Leave to Supplement the Record [222], on June 23, 2014. The government filed a Response [223] to the motion and supplement on July 7, 2014. Movant filed an additional supplement, styled as a Motion for Argument to Amend 2255 Motion [224], on October 20, 2014.

ANALYSIS

To succeed on a motion to vacate, set aside, or correct a sentence, a movant must allege "(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." Pough v. United States, 442 F.3d 959, 964 (6th Cir. 2006) (quoting Mallett v. United States, 334 F.3d 491, 496-97 (6th Cir. 2003)). Movant argues, primarily, that his convictions and sentence violated his constitutional right to the effective assistance of counsel. He also argues that the Supreme Court's decision in Alleyne v. United States, 133 S.Ct. 2151 (2013), retroactively rendered unconstitutional the Court's consideration of Movant's status as a career offender under the Sentencing Guidelines.

I. Ineffective Assistance of Counsel

Movant alleges a violation of his constitutional right to counsel, "an error of constitutional magnitude." See Pough v. United States, 442 F.3d 959, 964 (6th Cir. 2006) (quoting Mallett v. United States, 334 F.3d 491, 496-97 (6th Cir. 2003)). This claim is exempted from the general rule barring a court from considering, on a motion to vacate sentence under 28 U.S.C.§ 2255, arguments not raised on direct appeal. Massaro v. United States, 538 U.S. 500, 504 (2003). To establish ineffective assistance of counsel, Movant must show that his counsel rendered deficient performance and thereby prejudiced Movant's defense so as to render the outcome of the proceedings ...


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