United States District Court, S.D. California
ORDER DENYING MOTION UNDER 28 U.S.C. §
LARRY ALAN BURNS CHIEF UNITED STATES DISTRICT JUDGE
Javay Boyd pled guilty pursuant to a plea agreement to one
count of importation of methamphetamine and one count of of
cocaine. Because she imported 6.9 kilograms of
methamphetamine (actual), she was subject to a mandatory
minimum sentence of 10 years. The second count involved 2
kilograms of cocaine, and carried a mandatory minimum
sentence of five years. Because the two sentences would run
concurrently, the mandatory minimum for the second count did
not affect the sentence she ultimately received. The Court
departed downward based on a motion under 18 U.S.C. §
3553(e) and USSG 5K1.1, and sentenced her to 84 months'
imprisonment. She did not file an appeal, but instead filed a
motion under 28 U.S.C. § 2255, asking the Court to
sentence her to time served.
motion is entirely conclusory, and gives no cognizable
reasons for her claims.
first claim involves the Court's reliance on her criminal
history and the nature of the offense at sentencing, but she
does not explain how she thinks the Court erred. According to
the presentence report as well as both sides' sentencing
summary charts, she was in criminal history category IV. The
report also discussed the nature of the offense Boyd was
being sentenced for. She does not argue that her criminal
history or the description of her offense was inaccurate, nor
does she explain why the Court should not have taken them
into account at sentencing.
may be asserting that when sentencing her, the Court could
not permissibly rely on past convictions or the nature of the
offense she pled guilty to. If this is what she means, her
claim fails. The Court is required to take into
account a defendant's criminal history as well as the
nature of the offense she is being sentenced for. 18 U.S.C.A.
even if Boyd is claiming that the Court erred in some way
when calculating her criminal history category or when it
took into account the facts of her offense, such a claim
would also fail. Boyd waived collateral attack on a sentence
at or below the statutory mandatory minimum term. (Plea
Agreement (Docket no. 21) at 11:23-12:2.) Because she was
sentenced below the mandatory minimum, she waived her first
claim. Furthermore, claims based on the Court's
calculation of the criminal history and consideration of the
nature of the offense are ordinarily raised on direct appeal.
With exceptions not applicable here, such claims may not be
raised in a § 2255 motion. See United States v.
Schlesinger, 49 F.3d 483, 485 (9th Cir. 1994) (holding
that nonconstitutional sentencing errors not raised on direct
appeal generally may not be reviewed by way of a § 2255
this claim is entirely conclusory, and is unsupported by any
factual allegations. See United States v. Hearst,
638 F.2d 1190, 1194 (9th Cir. 1980) (holding that mere
conclusory assertions in a § 2255 motion are
insufficient to warrant a hearing).
also argues that her lawyer was ineffective, because he
“did not fight” for her. (Mot. (Docket no. 40) at
5.) Instead, she says, he told her there was no way he could
have gotten a better deal than she did, and she was lucky to
be sentenced to only 84 months. (Id.) Boyd's
plea agreement did not waive this claim. (See Docket
no. 21 at 11:27-28.)
record confirms that Boyd's lawyer's advice was
accurate, and that in fact he advocated for an even lower
sentence than the Court imposed. (See Docket nos. 29
(government's sentencing summary chart); 30 (Boyd's
sentencing summary chart).) She got the benefit of
adjustments for minor role and acceptance of responsibility.
(Id.) Even with these, the guideline range was 121
to 151 months. (Id.) But with the benefit of a
downward departure, the resulting guideline range as
calculated by her lawyer was 84 to 105 months. (Docket no.
30.) And even after this, her lawyer asked for a sentence of
only 77 months. (Id.) By contrast, the government
calculated the guideline range at 120 to 120 months, and
recommended a sentence of 120 months. (Docket no. 29.)
aside a sentence based on ineffective assistance of counsel,
a defendant must satisfy the two-pronged test under
Strickland v. Washington, 466 U.S. 668, 687-88
(1984). This requires a showing that counsel's
performance was objectively unreasonable, and that as a
result, the defendant was prejudiced. Id. Boyd
supports her claim of ineffective assistance of counsel with
nothing but a conclusory assertion that her counsel
“did not fight” for her. But her claim is
unsupported by any factual allegations suggesting that his
performance was anything other than competent. Furthermore,
the record shows he obtained excellent results for her, and
advocated for an even lower sentence than the Court imposed.
No hearing is required, and this claim can be denied on the
basis of the record. See United States v. Blaylock,
20 F.3d 1458, 1465 (9th Cir. 1994) (holding that a district
court need not hold a hearing on a § 2255 motion where
the record conclusively shows the prisoner is entitled to no
relief); Hearst, 638 F.2d at 1194.
motion is DENIED.