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United States v. Phillips

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

September 21, 2017

United States of America, Plaintiff,
v.
Deon Lamont Phillips, Defendant.

          OPINION

          Paul L. Maloney United States District Judge

         This matter is before the Court on Defendant's motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255. (ECF No. 73.)

         Defendant first claims he was improperly sentenced based on Johnson v. United States, 135 S.Ct. 2551 (2015), and its alleged application to the career-offender enhancement of the Sentencing Guidelines. However, the Supreme Court has since concluded that the vagueness analysis of the Armed Career Criminal Act's residual clause in Johnson does not apply to the Guidelines. Beckles v. United States, 137 S.Ct. 886 (2017).

         Defendant also argues that his counsel was constitutionally ineffective on two grounds. First, Defendant alleges that his counsel was ineffective because he failed to challenge whether Defendant's 2004 conviction for conspiracy to deliver a controlled substance could be a predicate offense for career offender scoring. Second, in Defendant's view, the nine-month sentence imposed for his 2004 conviction was insufficient to be considered a predicate offense for career offender purposes.

         However, Defendant is precluded from collaterally attacking his conviction and sentence by virtue of his plea agreement. Even if he were not precluded, his arguments do not meet the high bar necessary for relief under Section 2255. Therefore, the Court will deny Defendant's motion.

         I. Background

         On August 1, 2014, Deon Lamont Phillips pled guilty to a charge of conspiracy to distribute and possess with intent to distribute 500 grams or more of cocaine. (ECF No. 38 at PageID.74-77.) Pursuant to the plea agreement, a second count was dismissed and Defendant agreed to waive an appeal and collateral attack. (Id. at 78, 80.)

         The Probation Department prepared a presentence report recommending that Phillips be sentenced as a career offender based on: (1) a 1997 conviction for conspiracy to deliver less than 50 grams of cocaine, (2) a 2004 conviction for conspiracy to deliver less than 50 grams of cocaine, and (3) a 2011 conviction for fleeing and eluding in the fourth degree. (ECF No. 49.) Based on these convictions, the Probation Department calculated Phillip's career offender guidelines to be level 31 with a criminal history category of VI, for a guidelines range of 188-235 months. (Id. at PageID.136.) Phillip's counsel objected that the 1997 conviction was too old to be included in career offender scoring and fleeing and eluding was not a crime of violence. (ECF No. 52.) The Court denied the objections and sentenced Phillips to 188 months.

         Phillips then filed a notice of appeal. (ECF No. 65.) His counsel filed a motion to withdraw and an Anders brief after concluding that the appeal was without merit. Phillips responded to the Anders brief, arguing, as he has here, that the 2004 conspiracy conviction was not a controlled substance offense, and second, that the fleeing and eluding conviction was void in light of Johnson. United States v. Phillips, No. 14-2621 (6th Cir. Aug. 6, 2015).

         The Sixth Circuit granted counsel's motion to withdraw and affirmed Phillips' sentence. United States v. Phillips, No. 14-2621 (6th Cir. Oct. 7, 2015). The court first addressed the Phillips' waiver of appeal and collateral attack as part of the plea agreement. After reviewing the circumstances, the court concluded that the waiver was enforceable. Id. at 3. The court went on to conclude that the 2004 conviction was appropriately counted because a conviction for conspiracy to commit a controlled substances crime is itself considered a controlled substances crime for career offender purposes. Id. at 5. The court concluded that the sentence imposed was valid-although the fleeing and eluding conviction may not have been a crime of violence-because Phillips still had two other qualifying predicate offenses. The court declined to consider Phillips' ineffective assistance of trial counsel claims.

         Defendant now returns with the same or nearly the same arguments: (1) Johnson invalidates the residual clause under the career offender enhancement of the Guidelines; (2) his counsel was ineffective for not challenging whether the 2004 conspiracy conviction could be scored as a controlled substance predicate offense; and (3) counsel was ineffective because he failed to challenge the 2004 conviction on the grounds that the term of imprisonment was too short to qualify as a predicate offense.

         II. Legal Framework

         To obtain relief under § 2255, a petitioner must show: (1) “the sentence was imposed in violation of the Constitution or laws of the United States, ” (2) “the court was without jurisdiction to impose such sentence, ” or (3) “the sentence was in excess of the maximum authorized by law or is otherwise subject to collateral attack.” 28 U.S.C. § 2255.

         One constitutional defect claimed here is a violation of the Sixth Amendment's guarantee of effective assistance of counsel. U.S. Const. amend. VI. The standard for ineffective assistance of counsel, as established in Strickland v. Washington, requires a petitioner to prove (1) that defense counsel's performance fell below an objective standard of reasonableness, and (2) there is a reasonable probability that, but for the unprofessional errors, the outcome of the proceedings would have been different. 466 U.S. 668, 694 (1984). Either prong may be addressed first, and the failure to demonstrate prejudice obviates the need for the court to address the counsel performance prong, and vice versa. I ...


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