United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING DEFENDANT'S MOTION TO
VACATE SENTENCE (DOC. 371) AND THE GOVERNMENT'S MOTION TO
STRIKE (DOC. 374)
CARAM STEEH UNITED STATES DISTRICT JUDGE.
Jennifer Franklin filed a motion to vacate her sentence
pursuant to 28 U.S.C. § 2255, to which the government
has responded. The government also filed a motion to strike
the petition, based upon defense counsel's alleged lack
of membership in the Eastern District of Michigan bar and his
use of another attorney's ECF credentials. The court is
satisfied with defense counsel's response to the
government's motion and denies the motion to strike. For
the reasons explained below, the court also denies
Defendant's motion to vacate sentence.
Franklin, a medical doctor, was charged with conspiracy to
distribute controlled substances. On August 16, 2017, she
pleaded guilty pursuant to a Rule 11 plea agreement. In her
plea agreement, Franklin accepted the following factual basis
for her guilty plea:
The defendant personally wrote prescriptions for more than
200, 000 dosage units of 30 mg oxycodone while employed by
Boris Zigmond. In order to make a conservative estimate of
the quantity of illegitimate prescriptions to be ascribed to
the defendant for sentencing purposes, the parties agree that
at least 3, 500 dosage units of 30 mg oxycodone and 7, 000
dosage units of other Schedule III, IV, and V substances,
were completely illegitimate. The defendant, a licensed
physician, was aware that the controlled substances she
agreed to prescribe were not medically necessary.
Doc. 238 at 2-3. The parties agreed to a sentencing
guidelines range of 57 to 71 months. After Franklin completed
a debriefing that allowed the court to apply the safety valve
under U.S.S.G. § 5C1.2, the court sentenced Franklin to
33 months in prison on February 8, 2018.
judgment was issued on February 12, 2017, and Franklin did
not appeal. Franklin timely filed a petition to vacate, set
aside, or correct sentence on January 24, 2019. The
government filed its response on March 4, 2019.
alleges that she received ineffective assistance of counsel
in violation of the Sixth Amendment of the U.S. Constitution.
To present an ineffective assistance of counsel claim under
28 U.S.C. § 2255, Defendant must show that (1) her
attorney's performance was seriously deficient and (2)
this deficient performance prejudiced her defense.
Strickland v. Washington, 466 U.S. 668, 687 (1984).
To show that counsel's performance was deficient,
Defendant must demonstrate that her counsel's
representation fell below an objective standard of
reasonableness under prevailing professional norms.
Id. at 688. In applying this standard, “a
court must indulge in a strong presumption that counsel's
conduct falls within the wide range of reasonable
professional assistance.” Id. at 689.
“[C]ounsel is strongly presumed to have rendered
adequate assistance and made all significant decisions in the
exercise of reasonable professional judgment.”
Id. at 695.
deficiency results in prejudice if “there is a
reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different.” Id. at 694. To satisfy
the prejudice requirement in the context of sentencing, a
defendant must show that counsel's error resulted in a
longer sentence than would otherwise have been imposed.
See Glover v. United States, 531 U.S. 198, 204
(2001); Ramirez v. United States, 799 F.3d 845, 855
(7th Cir. 2015) (“An attorney's failure to object
to an error in the court's guidelines calculation that
results in a longer sentence for the defendant can
demonstrate constitutionally ineffective
argues that her attorney was ineffective because she advised
her to agree to a drug weight of 105 grams of oxycodone in
the plea agreement, resulting in a base offense level of 28.
See U.S.S.G. § 2D1.1(a)(5), (c)(6). Defendant
argues that this drug weight calculation is incorrect and
that the correct drug weight would have resulted in a lower
sentencing guidelines range. Defendant has not, however,
demonstrated that the drug weight calculation is incorrect.
Franklin agreed to a “conservative estimate” of
“at least 3, 500 dosage units of 30 mg oxycodone”
in the plea agreement. This equates to 105, 000 milligrams
(105 grams) of oxycodone: 3, 500 x 30 = 105, 000. According
to the drug conversion table in § 2D1.1 of the
Sentencing Guidelines, one gram of oxycodone is equivalent to
6700 grams of marijuana. Thus, 105 grams of oxycodone
(multiplied by 6700) is equivalent to 703, 500 grams or 703.5
kilograms of marijuana, which results in a base offense level
of 28. U.S.S.G. § 2D1.1(c)(6). See also U.S. v.
Nassar, 373 Fed.Appx. 564, 565 (6th Cir.
2010) (explaining calculation of drug weight for oxycodone).
This is the base offense level used to calculate
Franklin's sentencing guidelines range, which was reduced
to 25 based upon her acceptance of responsibility. Because
Franklin's drug weight calculation was correct, her
counsel did not err in failing to object to it.
also argues that legitimately prescribed pills were used to
incorrectly increase her drug quantity, and that her attorney
should have objected to the inclusion of Schedule III, IV,
and V substances in her drug quantity. There is no evidence
that Franklin was sentenced based upon legally prescribed
medicines. Indeed, it is clear from the record that she was
sentenced based upon an extremely conservative drug weight.
An agent conducted a random sample of 127 out of 613 of
Franklin's patient files related to the conspiracy. Doc.
227-1. The 127 files contained 219 prescriptions (90 count or
120 count) of Roxicodone (30 mg). Assuming 90 pills per
prescription, 219 prescriptions equals 19, 710 pills, which
is significantly higher than the 3, 500 pills for which
Franklin was held responsible. In addition, the inclusion of the
Schedule III, IV, and V substances in her drug quantity did
not ultimately affect her base offense level or sentencing
range. See U.S.S.G. § 2D1.1(c)(6) (base offense
level 28 includes “at least 700 KG but less than 1, 000
KG of marihuana”). With respect to the drug quantity,
Franklin's counsel did not err, but negotiated a
favorable plea agreement.
Franklin contends that she reviewed her pre-sentence report
and that she had “issues with the language, ”
which were “to be addressed with the Probation
Officer.” An addendum to the report contains several
objections by the Defendant and the probation officer's
responses. Franklin contends that her counsel was ineffective
because Franklin “never reviewed an amended PSR prior
to her sentencing.” However, Franklin does not
articulate any prejudice as a result.
these reasons, Franklin has not demonstrated that her
counsel's performance was deficient or that her
counsel's performance prejudiced her defense. Under the
circumstances, an evidentiary hearing is not required.
See Blanton v. United States, 94 F.3d 227, 235
(6th Cir. 1996) (citing Fontaine v. United
States, 411 U.S. 213, 215 (1973) (“[E]videntiary
hearings are not ...