Street v. United States

          ORDER DENYING MOVANT'S MOTION TO VACATE SENTENCE PURSUANT TO 28 U.S.C. § 2255 [174]

          Arthur J. Tarnow Senior United States District Judge.

         On January 27, 2017, Movant, Devon Street, filed the instant Motion to Vacate and Correct Sentence Pursuant to 28 U.S.C. § 2255 [174]. On November 30, 2017, the Government filed a Response [210]. On December 27, 2017, Mr. Street filed a Reply [215]. For the reasons stated below, the Motion to Vacate and Correct Sentence [174] is DENIED.

         Introduction

         This case presents the opportunity to review the state of the law of sentencing. Mr. Street argues that his counsel was ineffective for failing to object to the application of U.S.S.G. § 2D1.1(a)(2) in the calculation of his sentencing guidelines.

         Since the guidelines are not mandatory, but rather advisory, ^[1] a mistake in their calculation will not always constitute reversible error. This is especially so where the Government moves for downward departure pursuant to § 5K1.1; such a motion renders the guidelines of less weight.

         At sentencing, the Court considers both the guidelines' range and the § 5K1.1 motion, along with the important congressional factors set forth in 18 U.S.C. § 3553(a). See Kimbrough v. United States, 552 U.S. 85, 90 (2007). Given the Court's assessment of various factors, an alleged miscalculation of the guidelines has less impact on the sentence imposed.

         Mr. Street cannot show that his counsel was deficient. See Section I. Moreover, even if Mr. Street could show that his counsel were deficient, he fails to establish that he suffered prejudice as a result of his attorney's failure to object to the guidelines. See Section II. The congressional factors, together with the guidelines' range and the amount of cooperation of Mr. Street, resulted in a sentence that was appropriate for Mr. Street. Accordingly, he is not entitled to relief.

         Factual and Procedural Background

         On December 16, 2015, a grand jury returned a Superseding Indictment [70] charging Devon Street, among others, with: Conspiracy to Distribute and to Possess with Intent to Distribute Heroin (Count I); Distribution of Heroin Resulting in Serious Bodily Injury (Count II); Conspiracy to Distribute and to Possess with Intent to Distribute Heroin Within 1000 Feet of an Outdoor Facility Containing a Playground (Count III); Distribution of Heroin (Count V); Conspiracy to Possess Firearms in Furtherance of a Drug Trafficking Crime (Count XIII); and Felon in Possession of a Firearm (Count XVI).

         On April 4, 2016, Mr. Street pleaded guilty to Conspiracy to Distribute and Possession with Intent to Distribute Heroin (Count I)^[2] pursuant to a Rule 11 Plea Agreement (“Plea Agreement”). The Plea Agreement [114] provided that Mr. Street, along with seven other named defendants, agreed to possess and distribute heroin in Detroit from 2012 to 2015. The Plea Agreement included the following Relevant Conduct:

On or about November 25, 2013 . . . DEVON STREET, knowingly and intentionally distributed a mixture and substance containing a detectable amount of heroin, a Schedule I controlled substance, which distribution resulted in the serious bodily injury of another person, N.C., from the use of such substance. All parties agree that N.C. experienced serious bodily injury due to the fact that he was unconscious and barely breathing after ingesting the heroin provided by DEVON STREET. If not for the timely administration of Narcan (also known as Naloxone), a heroin antidote, N.C. faced a substantial risk of death. The parties further agree that the heroin was the “but for” cause of serious bodily injury as it was the sole cause of the injury.

         The Plea Agreement stated that upon the Court's acceptance of the Agreement, the Government would dismiss the five remaining counts against Mr. Street, including Count II which carried a mandatory minimum sentence of 20 years of imprisonment. Applying a base offense level of 38, the Plea Agreement set forth a sentencing guidelines' range of 210-262 months of imprisonment (17 years, 6 months - 21 years, 10 months). [Dkt. #114 at 13]. But, pursuant to Fed. R. Cr. P. 11(c)(1)(C), the parties agreed to a sentencing range of 180-240 months (15-20 years). Id. at 6.

         At the Plea Hearing, Mr. Street testified that he had reviewed the Plea Agreement with his attorney and did not have any questions. Plea Hr'g Tr. 9:19-24, Apr. 4, 2016. Furthermore, the Government clarified that Mr. Street had agreed to the Plea Agreement's Relevant Conduct:

Mr. Corbett: Mr. Street, you mentioned the specific distribution on November 25, 2013. And just to make sure we are on the same page pertaining to page four of the Plea Agreement, that is with regards to the distribution of the person initialed NC resulting in serious bodily injury, is that correct?

The Defendant: Yes, sir.

Mr. Corbett: And you are agreeing that it was heroin that you gave to that person, is that right?

The Defendant: Yes, sir.

STPHRAO [sic]: And that it was the but for cause of the serious ...