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United States v. Smith

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

August 18, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
D-3 SHAWN RENARD SMITH, Defendant.

          OPINION & ORDER DENYING DEFENDANT'S MOTION TO VACATE SENTENCE (DKTS. 732, 743), DENYING DEFENDANT'S MOTION FOR TRANSCRIPTS (DKT. 746), DENYING DEFENDANT'S MOTION FOR LEAVE TO FILE A REPLY TO THE GOVERNMENT'S RESPONSE BRIEF (DKT. 747), AND DENYING A CERTIFICATE OF APPEALABILITY

          MICHIGAN MARK A. GOLDSMITH UNITED STATES DISTRICT JUDGE

         On September 5, 2012, judgment entered against Defendant after he was convicted of conspiracy to distribute and possess with intent to distribute controlled substances, 21 U.S.C. §§ 846, 841(a)(1); possession with intent to distribute cocaine, 21 U.S.C. §§ 841(b)(1)(C), 841(a)(1); possession with intent to distribute heroin, id.; felon in possession of a firearm, 18 U.S.C. §§ 922(g)(1), 924(a)(2); and possession of a firearm in furtherance of a drug trafficking crime, 18 U.S.C. § 924(c). See Judgment at 2 (Dkt. 569).

         Defendant, filing pro se, has filed two motions to vacate his sentence (Dkts. 732, 743). The Government has responded. For the reasons set forth below, the motions are denied.

         I. FIRST MOTION TO VACATE SENTENCE (Dkt. 732)

         Defendant invokes the Supreme Court's recent decision in Johnson v. United States, 135 S.Ct. 2551 (2015), which invalidated the so-called “residual clause” in 18 U.S.C. § 924(e) because it was unconstitutionally vague. Defendant, who was convicted of possession of a firearm in furtherance of a drug trafficking crime under 18 U.S.C. § 924(c), argues that “[t]he § 924(e) and § 924(c) residual clause[s] are virtually identical, ” and, as a result, Johnson should invalidate his conviction. See Def. 1st Br. at 2 (Dkt. 732-1).

         This argument fails for two reasons. First, as pointed out by the Government, Defendant was not convicted under the portion of § 924(c) pertaining to crimes of violence. See Gov't Resp. at 3; see also 18 U.S.C. § 924(c)(1)(A) (“any person who, during and in relation to any crime of violence or drug trafficking crime . . ., uses or carries a firearm . . . .” (emphasis added)). Thus, the statute's definitions of crimes of violence, vague or not, are irrelevant to this case. Rather, Defendant was convicted under the portion of § 924(c) that is triggered due to the defendant's drug trafficking crime.

         In addition, it is settled law in this circuit that Johnson does not apply to § 924(c). See United States v. Taylor, 814 F.3d 340 (6th Cir. 2016).

         Accordingly, this motion is denied.

         II. SECOND MOTION TO VACATE SENTENCE (Dkt. 743)[1]

         In Defendant's second motion to vacate, he claims that trial and appellate counsel was ineffective. This argument attacks counsel's performance in two areas: (i) counsel's failure to perform an investigation that allegedly would have revealed that he had a diminished role in the conspiracy; and (ii) counsel's failure to successfully persuade either this Court or the Court of Appeals that the jury should have been instructed that it was free to attribute to Defendant a lesser drug quantity than was attributed to the entire conspiracy. The arguments are related; in each, Defendant seeks to establish that he was responsible for a smaller amount of drugs, either legally or factually. Because Defendant fails to satisfy the ineffective-assistance standard, these motions are denied.

         The Supreme Court set forth a two-prong test for evaluating claims of ineffective assistance of counsel in Strickland v. Washington, 466 U.S. 668 (1984). In order to demonstrate ineffective assistance of counsel, a petitioner must show both (i) that defense counsel's performance was deficient and (ii) that petitioner suffered prejudice as a result. Id. at 687. Deficiency of counsel is found if counsel “made errors so serious that counsel was not functioning as the ‘counsel' guaranteed the defendant by the Sixth Amendment.” United States v. Fortson, 194 F.3d 730, 736 (6th Cir. 1999). There is a presumption that counsel's performance was reasonable. United States v. Foreman, 323 F.3d 498, 503 (6th Cir. 2003). “A court making the prejudice inquiry must ask if the defendant has met the burden of showing that the decision reached would reasonably likely have been different absent the errors.” Strickland, 466 U.S. at 696.

         A. “Multiple Conspiracies” Theory

         In Defendant's first argument, he accuses the Government of erroneously grouping several conspiracies under the umbrella title of the “Dayton Mafia, ” when, in fact, that term referred to “Dayton Mafia Records, ” a legitimate business. See Def. 2nd Br. at 6. Counsel's performance allegedly was deficient for failing to conduct an independent investigation that would have revealed Dayton Mafia Records to be a record label, rather than a drug distribution conspiracy. Id. This fact is relevant, says Defendant, because he was convicted and sentenced for conspiracies other than the one in which co-Defendant Lamonte Watson was running, and the use of a legitimate business to form the “rim” in a hub-and-spoke conspiracy wheel sidestepped the Government's burden to show that the separate conspiracies were, in fact, somehow related. See id. (“The testimony from Woods and Knapp could establish a conspiracy between [Defendant] and them, but in order to connect this to Watson additional evidence was needed.”). In addition to counsel's alleged failure “to investigate this legitimate business venture, ” Defendant asserts that counsel failed “to independently investigate the involvement of [co-conspirators] Woods, Randle, Knapp, and . . . Ratcliff, ” and that this constituted deficient performance because it resulted in this Court refusing to instruct the jury on multiple conspiracies for want of evidence. Id.

         Defendant has failed to show prejudice regarding the term “Dayton Mafia.” The Government points out that the term was never used at trial, see 2nd Gov't Resp. at 10 (citing Tr. Tr. at 57-58 (Dkt. 585) (“Now that treads upon what we had agreed not to bring up and that is the name Dayton Mafia. We have agreed that I'm going to ask Special Agent Wiggins that question substituting DM for Dayton Mafia . . . .”)), and Defendant fails to explain how the use of this term outside the presence of the jury was misleading. Furthermore, as addressed below, Defendants' true objection is not to the misappropriation of the name of a legitimate business, but rather to the fact that too many people were identified as being part of a single ...


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