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Person v. United States

United States District Court, N.D. Alabama, Southern Division

February 15, 2018

DEXTER PERSON, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

          MEMORANDUM OPINION

          KARON OWEN BOWDRE CHIEF UNITED STATES DISTRICT JUDGE.

         In 2016, Dexter Person pled guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). (Doc. 16, in N.D. Ala. No. 1:15-cr-00263-KOB-TMP). The court sentenced him to 72 months imprisonment. (Id.). Mr. Person has moved to vacate, set aside, or correct his sentence, under 28 U.S.C. § 2255, contending that his counsel rendered ineffective assistance because (1) counsel failed to argue that Mr. Person's cousin set him up, and (2) counsel conceded that Mr. Person was not entitled to a reduction in his offense level for acceptance of responsibility. (Doc. 1). This court WILL DENY the motion because Mr. Person has not alleged facts demonstrating that counsel performed deficiently or that counsel's alleged deficiencies prejudiced him.

         I. BACKGROUND

         In 2005, Mr. Person pled guilty to the felony offense of second degree assault. (Doc. 29 in N.D. Ala. No. 1:15-cr-00263-KOB-TMP, at 20; Revised PSR ¶ 53). On January 7, 2014, after his release from prison on the assault conviction, Mr. Person fired a pistol into the air. (Doc. 29 in N.D. Ala. No. 1:15-cr-00263-KOB-TMP, at 19). Mr. Person later admitted to police officers that he fired the pistol, and he told them where to find the pistol. (Id. at 19-20). A police officer found the pistol where Mr. Person had said it would be. (Id. at 20).

         In August 2015, Mr. Person and the Government entered a plea agreement. (Doc. 2 in N.D. Ala. No. 1:15-cr-00263-KOB-TMP). In the same month, the court released Mr. Person on bond. (Doc. 8 in N.D. Ala. No. 1:15-cr-00263-KOB-TMP). On August 21, 2015, he pled guilty to the federal charge of being a felon in possession of a firearm. (Doc. 29 in N.D. Ala. No. 1:15-cr-00263-KOB-TMP, at 1). But he remained free on bond pending sentencing.

         A probation officer prepared a presentence investigation report and recommended, among other things, giving Mr. Person a three-point reduction in his total offense level for acceptance of responsibility. (PSR at ¶¶ 27-28). With that reduction, his advisory guidelines range was 46 to 57 months imprisonment. (Id. ¶ 94).

         But in December 2015, while Mr. Person was free on bond, police officers arrested and charged him for being in possession of another firearm. (Revised PSR at ¶¶ 11, 72). As a result, the probation officer revised the presentence investigation report and recommended not giving Mr. Person the three-level reduction in his offense level for acceptance of responsibility. (Id. ¶¶ 19, 28). Without the acceptance of responsibility reduction, his amended advisory guidelines range became 63 to 78 months' imprisonment. (Id. ¶ 94).

         At the sentencing hearing, Mr. Person's counsel stated that “we don't agree with the part [of the revised PSR] about acceptance of responsibility, but other than that position . . . we didn't file any objections.” (Doc. 30 in N.D. Ala. No. 1:15-cr-00263-KOB-TMP, at 3). Counsel argued that Mr. Person “did plead. And if you took away two of his three acceptance points, which I would prefer you not, but even if you do that, I think by pleading and facilitating this court proceeding, I still think he's entitled to at least one.” (Id. at 5). Counsel also said: “I don't particularly want to get into [what happened] because I don't want to lock my client in any positions with the pending charge out there.” (Id.).

         To show that Mr. Person had not accepted responsibility for his actions by voluntarily terminating or withdrawing from criminal conduct, the Government called the two police officers who conducted the stop, search, seizure of the gun, and arrest, to testify. (Id. at 8-17). One of the officers, Deputy Rickey Shaddix, testified that, during a driver safety checkpoint, he stopped a car that Mr. Person was driving. (Id. at 8-10). Deputy Shaddix obtained consent to search the car from the car's owner, and found a partially zipped bag in the trunk. (Id. at 10-11). He testified that he could see the handle of a gun in the bag. (Id. at 11). Mr. Person told Deputy Shaddix that the bag belonged to him, but stated that “he did not know that that weapon was in the car.” (Id. at 12). According to Deputy Shaddix, Mr. Person also denied that the gun was his. (Id. at 13). The other officer, Roger Watts, testified that when Deputy Shaddix asked Mr. Person about the gun, Mr. Person said that the gun belonged to his cousin. (Id. at 15-16).

         The court found by a preponderance of the evidence that Mr. Person possessed the gun because it was in the bag he claimed was his, in the trunk of the car that he was driving. So an acceptance-of-responsibility reduction was not appropriate. (Id. at 17-18). The court sentenced Mr. Person to 72 months imprisonment, within the advisory guidelines range of 63 to 78 months imprisonment. (Id. at 18-19). Mr. Person asserts that, after his federal sentencing, the State dropped the charge stemming from his August 2015 arrest for being in possession of a firearm. (Doc. 1 at 16).

         II. DISCUSSION

         Mr. Person appears to raise two related claims in his § 2255 motion. First, he contends that trial counsel was ineffective for conceding that he was not entitled to an acceptance-of-responsibility reduction. (Doc. 1 at 14-15). Second, he asserts that trial counsel was ineffective for failing to argue that Mr. Person's cousin set him up to be arrested in December 2015 for possession of the gun, because if counsel had made that argument, the court would have given him the acceptance-of-responsibility reduction. (Id. at 4).

         To prevail on a claim of ineffective assistance of counsel, Mr. Person must demonstrate both that (1) his counsel's performance fell below an objective standard of reasonableness; and (2) he suffered prejudice because of that deficient performance. Strickland v. Washington, 466 U.S. 668, 684-91 (1984). To establish deficient performance, the movant “must show that counsel's representation fell below an objective standard of reasonableness under prevailing professional norms.” Ward v. Hall, 592 F.3d 1144, 1163 (11th Cir. 2010). “Judicial scrutiny of counsel's performance must be highly deferential” and the court must presume “that counsel's conduct [fell] within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689. To establish prejudice, the movant “must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694.

         The United States Sentencing Guidelines in effect at the time of Mr. Person's sentencing provide that the court must decrease a defendant's offense level by up to three levels “[i]f the defendant clearly demonstrates acceptance of responsibility for his offense.” United States Sentencing Guidelines § 3E1.1(a), (b) (2015). Application Note 1 to § 3E1.1 explained that, in determining whether to grant the defendant an acceptance-of-responsibility reduction, the court should consider the defendant's “voluntary termination or withdrawal from criminal conduct or associations.” Id. § 3E1.1, cmt. n.1(B) (2015). The court “is authorized to consider subsequent criminal conduct, even if it is unrelated to the offense of conviction, in determining whether a decrease for acceptance of responsibility is appropriate.” United States v. Pace, 17 F.3d 341, 343 (11th Cir. 1994); see also United States v. Wright, 862 F.3d 1265, 1279 (11th Cir. 2017) (“[E]vidence of continued, but unrelated, criminal conduct after an arrest ...


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