August 12, 2013
DALE S. FISCHER, District Judge.
Proceedings: (In Chambers) Order DENYING Motion to Vacate, Set Aside, or Correct Sentence
In light of the dismissal of Defendant's direct appeal by the Court of Appeals, the stay in this matter is lifted.
Defendant makes two arguments. First, he claims that trial counsel was ineffective for failing to argue that the revised mandatory minimums or sentencing guidelines pursuant to the Fair Sentencing Act should apply to him. But Defendant was not sentenced to a mandatory minimum revised by the Fair Sentencing Act. The statutory minimum at the time of sentencing was 10 years. Defendant was sentenced to 240 months, which was below the applicable Sentencing Guidelines range of 262-327 months. His offense level and criminal history category were determined by the career offender provisions of § 4B1.1 of the Sentencing Guidelines. Neither were changed by the Fair Sentencing Act.
Second, Defendant argues that trial counsel was ineffective for failing to adequately argue Defendant's medical condition as a mitigating circumstance at sentencing. Defendant's complaint appears to be that counsel did not present expert testimony as to Defendant's medical condition and the effects of that condition on his incarceration. But even from the face of the motion it is clear that trial counsel attempted to present expert testimony and was prevented from doing so by the Court. The record further confirms this. (See Dkt. Nos. 1295, 1389.) Defendant's real complaint is one of error by the Court, not ineffective assistance of counsel.
The motion is DENIED.
No cerificate of appealablity will issue as there has not been a substantial showing of the denial of a constitutional right
IT IS SO ORDERED.