United States District Court, N.D. Alabama, Southern Division
OWEN BOWDRE CHIEF UNITED STATES DISTRICT JUDGE.
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.
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).
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
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).
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).
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
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).
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).
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).
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.
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 ...