United States District Court, W.D. Michigan, Northern Division
OPINION
Paul
L. Maloney, United States District Judge.
Before
the Court is Defendant's motion to vacate, set aside, or
correct sentence under 28 U.S.C. § 2255 (ECF No. 353)
and supplement thereto (ECF No. 354). The Government has
filed a response (ECF No. 382) arguing that the motion should
be denied. The Court agrees with the Government.
I.
Background
In
2014, a grand jury charged Defendant Anthony Peter Giovanoni
and three other individuals with conspiracy to distribute
methamphetamine. The grand jury determined that Defendant was
responsible for conspiracy to distribute 50 grams or more of
a mixture or substance containing methamphetamine, in
violation of 21 U.S.C. § 841(b)(1)(B)(viii). (Second
Superseding Indictment, ECF No. 68, PageID.225-226.)
In
February 2015, Defendant pleaded guilty to the charge against
him. In the plea agreement, Defendant agreed to cooperate
with the Government and the Government agreed not to oppose a
two-level reduction in his offense level for acceptance of
responsibility, or to bring additional charges against him
for his drug trafficking activity. It also agreed to file a
motion for downward departure or reduction of his sentence if
he provided substantial assistance to the Government in its
prosecution of others.
Before
sentencing, the final presentence investigation report
(“Final PIR”) calculated Defendant's range of
sentence under the Sentencing Guidelines as 168 to 210
months, based on an offense level of 31 and a criminal
history score of V. (Final PIR, ECF No. 218, PageID.782.) The
Government asked the Court to make a downward departure due
to Defendant's cooperation, reducing his range of
sentence to 120 to 150 months. (ECF No. 229, PageID.833.)
On July
23, 2015, United States District Judge R. Allan Edgar granted
the downward departure and sentenced Defendant to a term of
120 months, at the bottom of the adjusted guidelines range.
Defendant's
two-page motion and supplement raise the following grounds
for relief: (1) Defendant “was told” that his
sentence had a five year statutory minimum, but a law library
clerk told him that it has 10 year mandatory minimum; (2)
Defendant is entitled to a “minimum/minor rol[e]
adjustment, ” and his attorney should have asked for
one; and (3) Defendant's attorney provided inadequate
assistance. (§ 2255 Motion, ECF No. 353; Suppl. to
§ 2255 Motion, ECF No. 354.)
II.
Standards
A.
Merits
A
prisoner who moves to vacate his sentence under § 2255
must show that the sentence was imposed in violation of the
Constitution or laws of the United States, that the court was
without jurisdiction to impose such a sentence, that the
sentence was in excess of the maximum authorized by law, or
that it is otherwise subject to collateral attack. 28 U.S.C.
§ 2255. To prevail on a § 2255 motion “a
petitioner must demonstrate the existence of an error of
constitutional magnitude which had a substantial and
injurious effect or influence on the guilty plea or the
jury's verdict.” Humphress v. United
States, 398 F.3d 855, 858 (6th Cir. 2005) (quoting
Griffin v. United States, 330 F.3d 733, 736 (6th
Cir. 2003)). Non-constitutional errors are generally outside
the scope of § 2255 relief. United States v.
Cofield, 233 F.3d 405, 407 (6th Cir. 2000). A petitioner
can prevail on a § 2255 motion alleging
non-constitutional error only by establishing a
“fundamental defect which inherently results in a
complete miscarriage of justice, or, an error so egregious
that it amounts to a violation of due process.”
Watson v. United States, 165 F.3d 486, 488 (6th Cir.
1999) (quoting United States v. Ferguson, 918 F.2d
627, 630 (6th Cir. 1990) (internal quotations omitted)).
B.
Hearing
The
court must hold an evidentiary hearing to determine the
issues and make findings of fact and conclusions of law
“[u]nless the motion and the files and records of the
case conclusively show that the prisoner is entitled to no
relief. . . .” 28 U.S.C. § 2255(b). No. hearing is
required if Defendant's allegations “cannot be
accepted as true because they are contradicted by the record,
inherently incredible, or conclusions rather than statements
of fact.” Arredondo v. United States, 178 F.3d
778, 782 (6th Cir. 1999) (quotation omitted).
III.
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