United States v. Giovanoni

          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. ...