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United States of America v. George Wilson Washington


November 23, 2011


The opinion of the court was delivered by: Claudia Wilken United States District Judge



Movant, a federal prisoner currently incarcerated at the Federal Correctional Institution in Lompoc, California, has filed 14 this motion under 28 U.S.C. § 2255 to vacate, set aside or correct his sentence. Respondent opposes the motion. For the following 16 reasons, the motion is DENIED. 17


On December 18, 2008, Movant was charged in a criminal

19 complaint with one count of distribution of crack cocaine in 20 violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(iii). Movant faced 21 a mandatory minimum prison sentence of ten years and a mandatory 22 minimum five-year term of supervised release. 23

On September 23, 2009, after plea negotiations with Movant's

24 defense counsel, the government filed a superseding information 25 charging Movant with using a telecommunications facility in 26 facilitating or committing a felony under 21 U.S.C. § 843(b). The 27 government also alleged a prior felony narcotics conviction 28 pursuant to 21 U.S.C. § 851. On this charge, Movant faced a statutory maximum sentence of eight years in prison and a three-2 year term of supervised release. Movant plead guilty to the sole 3 count of the superseding information and admitted the facts of his 4 conduct in the plea agreement, which provided for a sentence of 5 ninety-six months' imprisonment and three years' supervised 6 release. At the change of plea hearing, the Court questioned 7

Movant to ensure that he understood the nature and consequences of 8 his plea. Movant answered that he understood the agreement, and 9 the Court made a finding that the plea was knowing and voluntary. 10

Ex. A at 12-19.

On December 9, 2009, the Court sentenced Movant according to

the terms of the plea agreement: ninety-six months' imprisonment, 13 three years' supervised release, a $100 special assessment, and 14 forfeiture of a motor vehicle used in facilitating the offense. 15

On July 23, 2010, Movant filed this motion. Movant claims

16 that he did not receive effective assistance of counsel, arguing 17 that defense counsel failed to object during the sentencing 18 proceeding. He also claims that he did not understand the 19 sentencing proceeding due to the "confusion of the moment." Mot. 20 at 5. 21


I. Section 2255 23

A prisoner, in custody under sentence of a federal court,

24 making a collateral attack against the validity of his or her 25 conviction or sentence must do so by way of a motion to vacate, 26 set aside or correct the sentence pursuant to 28 U.S.C. § 2255 in 27 the court which imposed the sentence. Tripati v. Henman, 843 F.2d 28 1160, 1162 (9th Cir. 1988). Under section 2255, a federal sentencing court may grant relief if it concludes that a prisoner 2 in custody was sentenced in violation of the Constitution or laws 3 of the United States. United States v. Barron, 172 F.3d 1153, 4 1157 (9th Cir. 1999). 5

II. Ineffective Assistance of Counsel 6

The Sixth Amendment right to counsel guarantees effective 7 assistance of counsel. Strickland v. Washington, 466 U.S. 668, 8 686 (1984). To prevail on an ineffective assistance of counsel 9 claim, a defendant must show two things: (1) that counsel's 10 performance was deficient, and (2) that the deficient performance resulted in prejudice to the defendant. Id.

To show that counsel's performance was deficient, a defendant

13 must show that the performance fell below an objective standard of 14 reasonableness. Id. at 688. The relevant inquiry is not what 15 counsel could have done, but whether the choices made by counsel 16 were reasonable. Babbitt v. Calderon, 151 F.3d 1170, 1173 (9th 17

Cir. 1998). A court must indulge a strong presumption that 18 counsel's conduct falls within the wide range of reasonable 19 professional assistance. Strickland, 466 U.S. at 689. 20

The defendant must also show that counsel's deficient

21 performance resulted in prejudice to the defendant. To do this, 22 the defendant must show that there is a reasonable probability 23 that, but for counsel's unprofessional errors, the result of the 24 proceeding would have been different. Id. at 694. A reasonable 25 probability is a probability sufficient to undermine confidence in 26 the outcome. Id. 27 28


I. Ineffective Assistance of Counsel 3

Movant, in the plea agreement, waived his right to make a

§ 2255 motion, except for claims of ineffective assistance of 5 counsel. Plea Agreement ¶ 5. Dkt. 27. 6

A. Failure to Object

Movant argues that his counsel was ineffective because he did 8 not object during the sentencing hearings. He claims that 9 "clearly sustainable objections should have been made with regard 10 to the confusion that ruled throughout the procedure." Mot. at 5.

In claiming "confusion," Movant appears to be referring the exchange between the Court and the parties during the sentencing 13 hearing regarding Movant's criminal history. Ex. B at 4-6. The 14 pre-sentence report alluded to a criminal history of both two and 15 three, while the prosecution indicated that it was two. Once the 16

Court pointed out the discrepancy to the parties, all parties 17 agreed that the correct number was three. Ex. B at 6. 18 Defense counsel enjoys a presumption that his conduct 19 constituted effective assistance. Strickland v. Washington, 466 20

U.S. 668, 689 (1984). Counsel's conduct was not ineffective. He 21 secured a plea agreement providing for ninety-six months' 22 imprisonment when Movant faced a minimum of 120 months in prison 23 if he were to have been convicted of the original charges brought 24 against him. Counsel explained to the Court that the agreement 25 was "a result of extensive bargaining with the Government, the 26 client's been informed all the way along, and it is the result 27 that we have recommended to him." Later in the proceeding, Movant 28 spoke to the Court, thanking defense counsel "for doing [. . . ] all he can, in this situation." Ex. B at 12. There was no need 2 for counsel to object when all parties confirmed the Court's 3 understanding of the criminal history. Even assuming that 4 counsel's negotiation constituted deficient performance, Movant 5 cannot, and does not attempt to, show that he suffered prejudice. 6

B. Movant's Understanding of the Proceeding

Movant also claims that he did not have a full understanding 8 of the sentencing proceeding, positing in his motion that if the 9 Court, the Assistant U.S. Attorney, and the Probation Officer were 10 confused, "how can it be expected of the defendant, a lay person 11 of limited education possibly be confidently believe something or 12 to understand over all of the confusion being presented in this 13 Court proceeding?" Mot. at 5. The transcript provides no 14 indication that Movant or any of the parties present did not 15 understand the proceeding. In fact, his answers at the change of 16 plea hearing demonstrate that he understood and assented to the 17 terms of the agreement. The confusion Movant alludes to is merely 18 a discussion about an inconsistency within the pre-sentence report 19 on the criminal history score, which appeared in the report as 20 both two and three. The parties clarified the issue and agreed 21 that the correct score was three. Movant demonstrated a 22 sufficient understanding of the substantive nature of the charges, 23 the elements required for conviction, and the effects of the plea 24 agreement. See Ex. A at 7-12. 25 26 27 28

CONCLUSION For the foregoing reasons, Movant's motion to vacate his guilty plea and sentence is DENIED. (Docket No. 36). 4 5




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