United States District Court, E.D. Michigan, Southern Division
ORDER DENYING MOVANT'S MOTION TO VACATE SENTENCE
PURSUANT TO 28 U.S.C. § 2255
J. Tarnow Senior United States District Judge.
January 27, 2017, Movant, Devon Street, filed the instant
Motion to Vacate and Correct Sentence Pursuant to 28 U.S.C.
§ 2255 . On November 30, 2017, the Government filed
a Response . On December 27, 2017, Mr. Street filed a
Reply . For the reasons stated below, the Motion to
Vacate and Correct Sentence  is DENIED.
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
the guidelines are not mandatory, but rather advisory,
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.
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.
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.
and Procedural Background
December 16, 2015, a grand jury returned a Superseding
Indictment  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).
April 4, 2016, Mr. Street pleaded guilty to Conspiracy to
Distribute and Possession with Intent to Distribute Heroin
(Count I) pursuant to a Rule 11 Plea Agreement
(“Plea Agreement”). The Plea Agreement 
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.
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.
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
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