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Montgomery v. United States

United States District Court, Fourth Circuit

October 29, 2013

LEONARD EVANT MONTGOMERY, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent. Criminal Action No. RDB-10-0475

MEMORANDUM OPINION

RICHARD D. BENNETT, District Judge.

The pro se petitioner Leonard Evant Montgomery ("Petitioner") has filed a Motion to Vacate, Set Aside, or Correct Sentence (ECF No. 107), pursuant to 28 U.S.C. § 2255. Petitioner argues that this Court improperly found him to be a career offender under the Federal Sentencing Guidelines, and due to this finding, he received a higher sentence than would have otherwise been imposed. Petitioner further claims that he received ineffective assistance of counsel due to his attorney's failure to object to his career offender status. Because this Court properly calculated Petitioner's sentence, Petitioner's Motion to Vacate (ECF No. 107) is DENIED.

BACKGROUND

A. Petitioner's 2011 Sentence for Conspiracy to Distribute and Possess with Intent to Distribute.

On July 19, 2010, Drug Enforcement Administration ("DEA") agents observed two individuals named James Knowlton ("Knowlton") and Lucy Cabrera ("Cabrera") arrive at the Baltimore-Washington International Airport from San Diego, California. Plea Agreement at 8, ECF No. 83. Both individuals then checked into a room at a Motel 6 in Linthicum Heights, Maryland. Id. The agents continued to monitor the motel room, and the following day they observed a third individual, later identified as Petitioner, meeting with Knowlton inside the room. Id. After a brief meeting, Petitioner emerged from the room holding a black object. Id. The agents followed Petitioner's vehicle and conducted a stop for an unrelated traffic violation. Id. During this stop, a trained canine alerted the agents to the presence of narcotics inside Petitioner's vehicle. Id. The agents recovered black tar heroin, in excess of 200 grams, from the vehicle and arrested Petitioner. Id. Knowlton and Cabrera were arrested following Petitioner's detainment. Id.

On August 5, 2010, Petitioner was charged with one count of conspiracy to distribute and possess with intent to distribute 100 grams or more of heroin, in violation of 21 U.S.C. § 846, and one count of possession with intent to distribute 100 grams or more of heroin, in violation of 21 U.S.C. § 841(a)(1). Indictment, ECF No. 25. On October 21, 2010, Petitioner pled guilty to the conspiracy charge pursuant to a plea agreement.

On August 24, 2011, this Court sentenced Petitioner to a prison term of ninety-six months with a four-year period of supervised release. See Petr.'s Mot. to Vacate at 1, ECF No. 107. During Petitioner's sentencing, this Court determined that Petitioner was a career offender as defined by the Federal Sentencing Guidelines under Section 4B1.1.[1] Id. at 9. In making this calculation, this Court deemed that Petitioner's prior escape conviction constituted a crime of violence that counted toward Petitioner's career offender status. Ultimately, this finding qualified Petitioner for a Guideline range of 100 to 125 months of incarceration, as opposed to a forty-six to fifty-seven month range. See Gov.'s Resp. at 3, ECF No. 110. After determining that Petitioner was a career offender, this Court sentenced Petitioner to a period of incarceration that was four months below the minimum recommended sentence under the Federal Sentencing Guidelines. Id.

On July 11, 2012, Petitioner filed the pending Motion to Vacate under 28 U.S.C. § 2255 (ECF No. 107). In his Motion, Petitioner asserts that this Court improperly considered the escape conviction when determining that Petitioner qualified as a career offender under the Federal Sentencing Guidelines. See Petr.'s Mot. 9. Petitioner also claims that his counsel acted ineffectively because counsel failed to object to the characterization of his escape conviction as a crime of violence. See id. On September 28, 2012, the Government filed its Response to Petitioner's Motion to Vacate (ECF No. 110). Petitioner submitted his Reply (ECF No. 115) on October 22, 2012.

B. Petitioner's 2001 Escape Conviction.

Because Petitioner challenges whether his escape conviction[2] qualifies as a predicate for career offender status, this Court also includes the following facts related to that conviction. In September 1997, Petitioner started serving a ten-year prison sentence for distribution of controlled substances. Ct. Tr., Feb. 2, 2001 at 7, ECF No. 110-2. He was housed at the Herman Tolson Boot Camp, which offers prisoners the opportunity to study at a local community college. Id. Petitioner enrolled in a fiber optics course. Id.

On October 13, 2000, Petitioner escaped during the middle of a class session. Ct. Tr., Feb. 2, 2001 at 7, ECF No. 110-2. Law enforcement officers located Petitioner running across East Furnace Branch Road in Glen Burnie, MD. Id. A law enforcement officer ordered Petitioner to stop; however, Petitioner continued to flee on foot. Id. at 7-8. Additional police officers arrived on the scene to set up a perimeter. Id. at 8. Law enforcement officers also utilized air support and canine units. Id. After locating Petitioner within the vicinity, law enforcement officers ordered Petitioner to stop running, but Petitioner hid underneath a bush. Id. Petitioner refused to emerge from the underneath the bush. Id. At this time, law enforcement officers released canine units to subdue and apprehend the Petitioner. Id. On February 2, 2001, Petitioner entered a guilty plea for escape under Article 27, Section 139(a) of the Maryland Code. Id. at 3-7.

ANALYSIS

I. Petitioner's Escape Conviction as a Predicate Felony Under Section 4B1.1 of the Federal Sentencing Guidelines.

Petitioner argues that he does not qualify as a career offender under Section 4B1.1 of the Federal Sentencing Guidelines and that he received a higher sentence because of his improper career offender status. Under Section 4B1.1, a defendant is considered a career offender if he is convicted of a serious drug offense or a crime of violence and has two prior such convictions on his record. U.S.S.G. § 4B1.1. A crime of violence includes "any offense under federal or state law, punishable by imprisonment for a term exceeding one year" that "has as an element the use, attempted use, or threatened use of physical force against the person of another or is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another." U.S.S.G. § 4B1.2(a).

Petitioner pled guilty to a serious drug offense-the heroin conspiracy charge-and does not dispute a previous narcotics conviction in a Maryland state court[3]. See Petr.'s Rep. at 1. Petitioner challenges only this Court's use of his conviction for escape as a predicate for Petitioner's career offender status. See id. at 2. Specifically, Petitioner asserts that his escape conviction was a nonviolent offense because he absconded while attending classes at a local community college and that, as such, it does not constitute a crime of violence as defined by Section 4B1.2(a) of the Federal Sentencing Guidelines. See id. at 3. Contrary to Petitioner's argument, the Government states that the escape conviction is a crime of violence because Petitioner actively fled from law enforcement officers who attempted to detain him, which resulted in a police chase and presented a "serious risk of physical injury to another." Gov.'s Resp. 5 (quoting U.S.S.G. § 4B1.2(a)(2)).

A. The Modified Categorical Approach Applies to Petitioner's Case.

The United States Court of Appeals for the Fourth Circuit faced a similar issue in United States v. Bethea, 603 F.3d 254 (4th Cir. 2010). In Bethea, the Fourth Circuit had to determine whether a conviction under South Carolina's escape statute qualified as a violent crime predicate under the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e).[4] The Fourth Circuit noted that, under the traditional categorical approach as set forth in Taylor v. United States, 495 U.S. 575 (1990), a court would normally look to the essential elements of a crime when determining if it was a violent crime predicate. Id. at 256. However, because South Carolina's escape statute "broadly criminalize[d] conduct that could be generally committed in multiple ways, some violent and some not, " the Fourth Circuit applied the modified categorical approach to determine whether the defendant's conduct constituted a violent felony within the purview of the ACCA.[5] Id. at 256. In applying the modified categorical approach, a court must review the particular facts of the offense to determine whether the nature of the crime was that of a violent felony. See id. (citing Shepard v. United States, 544 U.S. 13, 20 (2005); Taylor, 495 U.S. at 602). When analyzing these facts, a court is "limited to the terms of the charging document, the terms of a plea agreement... or to some comparable judicial record of this information." Shepard, 544 U.S. at 26.

Guided by the Fourth Circuit's decision in Bethea, this Court finds that the modified categorical approach is required in analyzing Petitioner's escape conviction. Section 139 of Article 27 of the Annotated Code of Maryland defines escape as occurring when "any individual who is legally detained in the State Penitentiary or a jail, house of correction, reformatory, station house or other place of confinement in this state... escapes." The essential elements of the Maryland escape statute under which Petitioner was convicted do not demonstrate that escape is purely a crime of violence because a defendant may be convicted if he or she escapes from custody without partaking in any violent activity or causing a serious risk of physical injury to another. Furthermore, the Maryland Court of Special Appeals has held that Section 139 encompassed both "escape without force" and "escape with force." See Fabian v. State, 239 A.2d 100, 106 (Md. Ct. Spec. App. 1968) ("Thus we feel that escape' as used in Art. 27, § 139 encompasses departure from lawful custody by the use of force or without the use of force as known in the common law, and so includes the common law crime of prison breach."); accord Watkins v. State, 400 A.2d 464, 467 (Md. Ct. Spec. App. 1979) ("We find that the statute simplified the common law by consolidating the three types of escape into one statute and making all escape a felony."). Because the Maryland escape statute prohibits both "escape with force" and "escape without force, " this Court turns to the modified categorical approach to ascertain whether Petitioner's escape conviction constitutes a crime of violence.[6]

B. Petitioner's Escape Conviction is a Crime of Violence Under the Modified Categorical Approach.

The facts of Petitioner's case demonstrate that his escape produced a serious risk of injury because it involved purposeful and aggressive conduct similar to the other enumerated offenses in Section 4B1.2(a) of the Federal Sentencing Guidelines. See Begay v. United States, 553 U.S. 137, 142-46 (2008) (stating that "burglary, arson, extortion, or crimes involving the use of explosives all typically involve purposeful, violent, ' and aggressive' conduct); see also Sykes v. United States, 131 S.Ct. 2267, 2275 (2011) (reasoning that "the purposeful, violent, and aggressive inquiry will be redundant with the inquiry into risk, for crimes that fall within the former formulation and those that present serious potential risks of physical injury to others tend to be one and the same").[7] Similar to burglary, Petitioner's escape produced a serious risk of injury because his flight from law enforcement officers involved aggressive conduct which ended in violent confrontation. See Sykes, 131 S.Ct. at 2273 (2011) ("Burglary is dangerous because it can end in confrontation leading to violence."). Law enforcement officers ordered Petitioner to stop running three times. Ct. Tr. Feb. 2, 2001 at 7-8. Petitioner repeatedly disobeyed these requests. Id. Petitioner's flight compelled the law enforcement officers to construct a perimeter, request air support, and utilize canine units. Id. A canine unit subdued Petitioner only after Petitioner refused to emerge from underneath a bush. Id. As a result, Petitioner's flight ended in a dangerous conflict that produced a significant risk of injury to the apprehending law enforcement officers, the canine unit, and the Petitioner. See Sykes, 131 S.Ct. at 2274 (reasoning that following a vehicle flight, law enforcement officers may need to approach with guns drawn to effect arrest and the resulting confrontation "places property and persons at serious risk of injury"); United States v. Doyle, 678 F.3d 429, 436 (6th Cir. 2012) (reasoning that a criminal defendant produces a significant risk of injury to the pursuing police officers because the "officers must eventually confront those who have already once intentionally disregarded their lawful authority").

Although the Fourth Circuit has held that a criminal defendant's "walk-away escape from an unsecured facility" does not involve conduct that presents a serious potential risk of physical injury, Petitioner's escape is distinguishable because it involved purposeful conduct that escalated the risk of violence to the law enforcement officers, the public, and to Petitioner. See United States v. Clay, 627 F.3d 959, 969 (4th Cir. 2010) (holding that a generic crime of walkaway escape does not qualify as a crime of violence because it does not involve purposeful, violent, and aggressive conduct that is similar to the crimes of burglary, arson, extortion, or crimes involving explosives).[8] Each time Petitioner purposefully resisted law enforcement officers' orders to stop fleeing, the risk of dangerous confrontation accumulated. Specifically, Petitioner's conduct affirmed to the law enforcement officers that Petitioner bore a strong aversion to returning to penal custody and that he would prefer to dispel the officers' attempt to effect final capture rather than yield to it. Accord United States v. Hairston, 71 F.3d 115, 118 (4th Cir. 1995) (stating that an escape "inherently presents the serious potential risk of physical injury to another, because the escapee intent on his goal of escaping, faces the decision of whether to dispel the interference or yield to it"). Thus, Petitioner's conduct increased the likelihood that the law enforcement officers would, in a legitimate and lawful manner, use force to capture Petitioner and to protect themselves. In essence, Petitioner's decision to resist penal custody purposefully created an extremely volatile and potentially lethal environment for him, the law enforcement officers, and the public. See Sykes, 131 S.Ct. at 2273 ("A criminal who takes flight [in a vehicle] and creates a risk of this dimension takes action similar in degree of danger to that involved in arson, which also entails intentional release of a destructive force dangerous to others.").

Because Petitioner's purposeful flight from law enforcement officers produced a significant risk of injury, Petitioner necessarily pled guilty to escape with force, which qualifies as a crime of violence under U.S.S.G. § 4B1.2(a). See Clay, 627 F.3d at 966 (reasoning that in order to consider a prior offense as a crime of violence, the charging documents, including the transcript of colloquy between judge and defendant, "must necessarily show (plausibility or even likelihood is insufficient) that the defendant pleaded guilty to generic conduct that would constitute a crime of violence"). Petitioner could not have pled guilty to simple walk-away escape because the charging documents, including the court transcript, definitively show that his conduct necessarily caused law enforcement officers to use destructive force in order to apprehend him. Petitioner's conduct included engaging in a dangerous flight from law enforcement officers that required officers to construct a perimeter, request air support, and utilize K-9 units in order to subdue the Petitioner. Ct. Tr., Feb. 2, 2001 at 7-10. Petitioner's conduct definitely distinguishes his conviction from a non-violent, walk-away escape because he acted in a violence-provoking manner when he decided to disobey law enforcement officers' orders. See United States v. Lee, 586 F.3d 859, 874 (11th Cir. 2009) (reasoning that simple walk-away escape does not include violence-provoking conduct that could jeopardize guards or bystanders).

II. Ineffective Assistance of Counsel Claim.

Because this Court finds that Petitioner's escape conviction qualifies as a predicate for his career offender status, Petitioner's ineffective assistance of counsel claim is meritless. In order to establish a claim for ineffective assistance of counsel, Petitioner must prove both elements set forth by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 671 (1984). First, a petitioner must show that his counsel's performance was so deficient as to fall below an "objective standard of reasonableness." Id. at 688. In assessing whether counsel's performance was unconstitutionally deficient, courts "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689. Second, a petitioner must show that his counsel's performance was so prejudicial as to "deprive the defendant of a fair trial." Id. at 687. In order to establish this level of prejudice, the petitioner must demonstrate that there is a "reasonable probability that, but for counsel's [alleged] unprofessional errors, the result of the proceeding would have been different." Id. at 694. Satisfying either of the two parts of the test alone is insufficient; rather, the petitioner must meet both prongs of the Strickland test in order to be entitled to relief. See id. at 687. ("Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.").

In this case, Petitioner did not suffer prejudice, and as a result, he cannot prove the second prong of the Strickland claim. Even if Defense Counsel had challenged Petitioner's career offender status, this Court still would have imposed the same sentence because this Court finds that Petitioner's escape conviction qualifies him for career offender status. As a result, Defense Counsel's failure to challenge the career offender status did not impact Petitioner's ultimate sentence.

CONCLUSION

Petitioner's claim of ineffective assistance fails due to lack of prejudice because this Court finds that Petitioner's escape conviction qualifies as a predicate for career offender status. For the reasons stated above, Petitioner's Motion to Vacate, Set Aside, or Correct Sentence (ECF No. 107) is DENIED.

A certificate of appealability shall not issue absent "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2) (2000). A petitioner satisfies this standard by demonstrating that reasonable jurists would find that an assessment of the constitutional claims is debatable and that any dispositive procedural ruling dismissing such claims is likewise debatable. Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003); Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir. 2001). Because reasonable jurists would not find Petitioner's claims debatable, a certificate of appealability is DENIED.

A separate Order follows.


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