United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING DEFENDANT'S MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE PURSUANT TO 28 U.S.C. § 2255 (Dkt. 52) AND DENYING CERTIFICATE OF APPEALABILITY
MARK A. GOLDSMITH, District Judge.
Before the Court is Defendant Jermaine Lashawn McClain's motion to vacate, set aside, or correct his sentence, pursuant to 28 U.S.C. § 2255 (Dkt. 52). Defendant claims the Court erred when it sentenced him to 151 months' imprisonment on his conviction for witness tampering, and that his counsel was ineffective for failing to raise this issue. Defendant argues that his sentence should instead have been limited to 120 months' imprisonment. Id . The Government filed a response (Dkt. 56), and Defendant filed a reply (Dkt. 57). Because the Court concludes that Defendant's argument is meritless, the Court denies Defendant's motion.
A federal grand jury returned a superseding indictment against Defendant on February 16, 2011, charging him with two counts: (i) felon in possession of firearms, in violation of 18 U.S.C. § 922(g)(1), and (ii) witness tampering, in violation of 18 U.S.C. § 1512(b)(1). First Superseding Indictment (Dkt. 11). The second count was based on a claim that Defendant "knowingly and corruptly attempted to persuade another person, with intent to influence such person to testify falsely in... the trial of Count One of" the indictment. Id. at 2-3 (cm/ecf pages).
A jury trial commenced on July 25, 2011, and a verdict was reached on July 28, 2011. The jury found Defendant guilty of both counts. Verdict Form (Dkt. 23).
The Probation Department prepared a presentence investigation report ("PSR") thereafter, using the 2010 version of the United States Sentencing Guidelines ("U.S.S.G.") Manual; there were no objections to the report. The report grouped the two convictions for guideline purposes, pursuant to U.S.S.G. § 3D1.2(c). For count one, the PSR calculated a base offense level of 20, with offense-level increases for possession of three to seven guns (2 levels), stolen firearm (2 levels), possessing the firearms in connection with another felony offense (4 levels), and obstruction of justice for the witness tampering conviction, pursuant to U.S.S.G. § 3C1.1 (2 levels). The increases resulted in an adjusted offense level of 30. With an offense level of 30, and a criminal history category of V, Defendant's guideline imprisonment range was 151-188 months. However, for count one, i.e., the felon-in-possession conviction, Defendant faced a maximum statutory term of imprisonment of 120 months. See 18 U.S.C. § 924(a)(2). The conviction for count two, on the other hand, carried a maximum statutory term of imprisonment of 240 months. See 18 U.S.C. § 1512(b).
The Court sentenced Defendant on December 13, 2011. See Sentencing Tr. (Dkt. 43). The Court noted that count two, i.e., the witness tampering charge, was treated as an adjustment to the guideline calculation for count one. Id. at 5-6. The Court then went through each of the level enhancements described above on the firearm conviction, including the addition of two levels for the witness tampering conviction. Id . The Court ultimately sentenced Defendant to 120 months of imprisonment (the statutory maximum) for count one, and 151 months of imprisonment for count two. Id. at 19-20.
Defendant subsequently filed an appeal raising a variety of claims, although not the issue Defendant raises for the first time here. The United States Court of Appeals for the Sixth Circuit ultimately rejected Defendant's appellate arguments, and affirmed the sentence as substantively reasonable because it was within the guideline range. See United States v. McClain, No. 11-2604, 2013 WL 870257, at *2 (6th Cir. Mar. 11, 2013). This motion followed.
III. 28 U.S.C. § 2255 STANDARD
This motion is brought pursuant to 28 U.S.C. § 2255, which provides in pertinent part:
A prisoner in custody under sentence of a court established by Act of Congress 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).
To prevail on a section 2255 motion, "a petitioner must demonstrate the existence of an error of constitutional magnitude which had a substantial and injurious effect or influence on the guilty plea or the jury's verdict." Humphress v. United States, 398 F.3d 855, 858 (6th Cir. 2005). Non-constitutional errors are generally outside the scope of section 2255 relief. See United States v. Cofield, 233 F.3d 405, 407 (6th Cir. 2000). A movant can prevail on a section 2255 motion alleging non-constitutional error only by establishing "a fundamental defect which inherently results in a complete miscarriage of justice, or, an error so ...