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Whetstone v. United States

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

June 14, 2018




         On February 4, 2015, Marvin Deshawn Whetstone was charged with conspiracy, mail fraud, and theft of government property. On May 4, 2015, after reaching a plea agreement, he pled guilty to mail fraud, and the other charges were dismissed. The charges arose from Whetstone's check- and tax-fraud ring. The presentence report recommended enhancements under the Sentencing Guidelines for a few reasons, e.g., there were more than 10 victims, per Sentencing Guideline § 2B1.1(b)(2)(A). Judge Robert Holmes Bell issued a notice of intent to impose an above-guidelines sentence, and on September 16, 2015, Judge Bell varied upward by 21 months- a total sentence of 84 months. Judge Bell cited, among other factors, the fact that Whetstone had previously been convicted of “virtually the same kind of behavior, ” and that Whetstone started the instant offense and scheme “immediately after” completing his previous sentence. Whetstone appealed, and the Sixth Circuit denied his appeal on June 29, 2016.

         On June 5, 2017, Whetstone filed the instant motion to vacate his sentence under 28 U.S.C. § 2255. (ECF No. 1.) His subsequent reply presents slightly different arguments, as described below, but in his petition, Whetstone alleges three grounds, each of which argues a form of ineffective assistance of counsel by both his trial and appellate counsel.

         Whetstone must show that his “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.” 28 U.S.C. § 2255. In order to establish an ineffective assistance of counsel claim, a movant must show a “reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068 (1984). The standard for analyzing ineffective assistance claims is “simply reasonableness under prevailing professional norms.” Wiggins v. Smith, 539 U.S. 510, 521, 123 S.Ct. 2527, 2535 (2003) (quoting Strickland, 466 U.S. at 688, 104 S.Ct. at 2065). The Court must presume that the lawyer is competent-the burden is on Whetstone, therefore, to demonstrate a constitutional violation. United States v. Cronic, 466 U.S. 648, 658, 104 S.Ct. 2039, 2046 (1984).

         Claims are procedurally defaulted if they were not raised on direct appeal; Whetstone may raise such procedurally-defaulted claims on collateral review only if he can show cause and prejudice. See Massaro v. United States, 538 U.S. 500, 504, 123 S.Ct. 1690, 1693 (2003). Whetstone may not raise his arguments as claims in their own right-he did not raise them on direct appeal and has not shown cause and prejudice to raise them here on collateral review. Therefore, the Court must analyze his claims as ineffective assistance claims only.

         Whetstone's Criminal History Category

         Whetstone asserts that “his prior fraud conviction represented relevant conduct under § 1B1.1.3 and thus it should not have been assigned (criminal history) points under § 4A1.1.” The Government noted that Whetstone was imprisoned for 27 months following Whetstone's prior fraud conviction for passing a bad check in 2006, and therefore, “it is impossible for the prior federal offense to have been part of the relevant conduct for the instant offense” in 2012. (ECF No. 8 at PageID.32.) Whetstone argues that his trial and appellate counsel were ineffective because they did not argue that the 2013 conviction was part of the relevant conduct in his 2016 conviction and, therefore, should not be considered as a prior conviction.

         Whetstone's claim fails. The commentary to U.S.S.G. § 1B1.3 (Relevant Conduct) states, “offense conduct associated with a sentence that was imposed prior to the acts or omissions constituting the instant federal offense (the offense of conviction) is not considered as part of the same course of conduct or common scheme or plan as the offense of conviction.” As an example, the commentary describes the following hypothetical:

The defendant was convicted for the sale of cocaine and sentenced to state prison. Immediately upon release from prison, he again sold cocaine to the same person, using the same accomplices and modus operandi. The instant federal offense (the offense of conviction) charges this latter sale. In this example, the offense conduct relevant to the state prison sentence is considered as prior criminal history, not as part of the same course of conduct or common scheme or plan as the offense of conviction. The prior state prison sentence is counted under Chapter Four (Criminal History and Criminal Livelihood).

Id. This example is directly applicable to Whetstone. Whetstone's argument is unsupported and contrary to the Guidelines. He cannot classify his prior conviction as “relevant conduct” instead of “criminal history.” He cannot claim that his counsel was ineffective for not making an argument that is in direct contradiction to the Sentencing Guidelines' commentary.

         The 10-or-More-Victims Enhancement

         Whetstone received a two-point enhancement under U.S.S.G. § 2B1.1(b)(2)(A)(i) because the Court found that Whetstone had ten or more victims. Whetstone did not raise this issue in his original motion. Raising it for the first time in his reply brief waives the issue. Scottsdale Ins. Co., 513 F.3d at 553. However, the Court will address it.

         Whetstone makes two claims attacking the 10-or-more-victims enhancement. First, he says that not all of the ten victims specifically identified in the presentence report (PSR) sustained actual monetary loss and are, therefore, not “victims” under the Guidelines. Whetstone cites United States v. Yager, 404 F.3d 967, 971 (6th Cir. 2005), which held that an individual whose lost funds were immediately refunded cannot be considered a “victim” under Sentencing Guideline § 2B1.1(b)(2)(A)(i). Whetstone submits that the PSR's listed victims were “impacted, ” but “several of the entities listed in the PSR sustained no loss at all, and some sustained losses that were immediately reimbursed.” (ECF No. 11 at PageID.46.) Besides Yager, which is not directly on point[1], Whetstone offers no legal authority for his argument, nor does he offer facts to demonstrate that the PSR was incorrect.

A defendant cannot show that a PSR is inaccurate by simply denying the PSR's truth. Instead, beyond such a bare denial, he must produce some evidence that calls the reliability or correctness of the alleged facts into question. If a defendant meets this burden of production, the government must then convince the court that the PSR's facts are actually true. But the defendant gets no ...

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