United States District Court, D. Maryland
William M. Nickerson Senior United States District Judge
28, 2014, Defendant Dellando Recardo Campbell entered a plea
of guilty to aiding and abetting Ryan Holness in the killing
of Holness' spouse, Serika Dunkley Holness, in violation
of 18 U.S.C. § 2261(a)(1). ECF No. 27. Defendant's
plea agreement provided for an agreed-to sentence of 360
months pursuant to Federal Rule of Criminal Procedure
11(c)(1)(C), ("C-plea"). Id. On November
6, 2014, the Court imposed a sentence of 360 months
imprisonment with a five year term of supervised release. ECF
No. 33. Defendant did not file an appeal. On September 18,
2015, Defendant filed a Motion under § 2255 to Vacate,
Set Aside, or Correct Sentence by a Person in Federal
Custody, presenting two claims for ineffective assistance of
counsel. ECF No. 40. First, Defendant claims counsel was
ineffective for failing to secure an additional one-level
reduction in his offense level for acceptance of
responsibility. Second, Defendant claims counsel was
ineffective for failing to advise him to take an open plea.
The Government responded to Defendant's motion, ECF No.
48, and Defendant subsequently filed a reply. ECF No. 49.
Upon review of the pleadings and the applicable case law, the
Court finds Defendant's claims are without merit;
therefore, his motion will be dismissed without a hearing.
obtain relief under § 2255 based on ineffective
assistance of counsel, a defendant has the burden of
demonstrating (1) that he received ineffective assistance of
counsel, and (2) that he was prejudiced by that ineffective
assistance. Strickland v. Washington, 466 U.S. 668,
687 (1984). To satisfy the first prong, a defendant must
prove that his attorney's conduct violated the Sixth
Amendment by falling below the reasonable standard of conduct
expected of attorneys. See id., (finding petitioner
must show that his counsel's performance was not
"within the range of competence demanded of attorneys in
criminal cases"). There is a strong presumption that
counsel's conduct was within the wide range of reasonable
professional assistance. Id. at 689. To satisfy the
second prong of Strickland, a defendant must
demonstrate that there exists "a reasonable probability
that, but for counsel's unprofessional errors, the result
of the proceeding would have been different."
Id. at 687-688. "A reasonably probability is a
probability sufficient to undermine confidence in the
outcome." Id. at 694.
Acceptance of Responsibility
claims he was denied effective assistance of counsel as
guaranteed by the Sixth Amendment to the United States
Constitution by counsel's failure to object to the
presentence report in order to secure an additional one level
reduction for acceptance of responsibility under U.S.S.G.
§ 3E1.1(b). ECF No. 40-1 at 3. Section 3E1.1(a) of the
Guidelines provides for a two-level decrease in a
defendant's offense level if he "clearly
demonstrates acceptance of responsibility for his
offense." The next subsection provides:
If the defendant qualified for a decrease under subsection
(a), the offense level determined prior to the operation of
subsection (a) is level 16 or greater, and upon
motion of the government stating that the defendant has
assisted authorities in the investigation or prosecution of
his own misconduct by timely notifying authorities of his
intention to enter a plea of guilty, thereby permitting the
government to avoid preparing for trial and permitting the
government and the court to allocate their resources
efficiently, decrease the offense level by 1
U.S.S.G. § 3E1.1(b). Defendant concedes that he received
the two-level deduction under 3E1.1(a), but contends he
deserved an additional decrease in accordance with §
3E1.1(b) because he accepted responsibility "by
truthfully admitting the conduct comprising the offense of
conviction. Truthfully admitting or not falsely denying any
additional relevant conduct ... and timely notifying
authorities of his intention to enter a plea of guilty."
ECF No. 40-1 at 4.
plea agreement provided that, "[p]ursuant to U.S.S.G.
§ 2A6.2(c) (Domestic Violence, cross reference to
U.S.S.G. § 2A1.1, first degree murder), the parties
stipulate and agree that the offense level for the violation
of 18 U.S.C. § 2261(a)(1) to which the Defendant is
pleading guilty is 43 because the offense involved
the commission of the crime of First Degree Murder and
resulted in the death of Serika Dunkley Holness." ECF
No. 27 at 4. The agreement further provided that
To the extent any applicable adjustment pursuant to U.S.S.G.
§ 3E1.1(a)(acceptance of responsibility) does not result
in a sentence lower than 360 months, this Office does not
oppose a two-level reduction in the Defendant's adjusted
offense level, based upon the Defendant's apparent
recognition and affirmative acceptance of personal
responsibility for his criminal conduct.
Id. The Government asserts that while Defendant
qualified for a three level adjustment, the plea agreement
itself provided that the binding C-plea superseded the
application of Section U.S.S.G. § 3E1.1, and that the
two level adjustment was subject to the parties'
agreement to a sentence of 360 months. ECF No. 48 at 5;
see ECF No. 27 at 5 ("the parties stipulate and
agree pursuant to Federal Rule of Criminal Procedure
11(c)(1)(C) that a sentence of 360 months
imprisonment (30 years) is the appropriate disposition of
this case"). As such, the Government asserts that
counsel did not err because "[t]he limiting effect of
the C-plea on a two-level adjustment for acceptance
was obviously just as applicable to a three-level
adjustment." ECF No. 48 at 6.
Government postulates that Defendant raises this §
3E1.1(b) argument because defense counsel asked the Court at
sentencing to grant a one-level downward departure in
Defendant's Criminal History Category (CHC), from III to
II. ECF No. 48 at 6-7; See Sentencing Transcript,
ECF No. 47 at 4. The Government did not oppose this request
since defense counsel and the Court agreed that it would not
affect the C-plea and the agreed upon sentence of 360 months.
ECF No. 47 at 4-5. The Court found that the one-level CHC
departure was appropriate. Id. at 5. With a CHC of
III, the sentencing range resulting from either a two or a
three-level adjustment for acceptance was 360-life. ECF No.
48 at 7. With a CHC of II, with a two-level adjustment for
acceptance, the range was similarly 360-life, but with a
three-level adjustment for acceptance, the resulting range
was 324-405 months. Id.
believes he would have benefited from a three-level departure
for acceptance of responsibility. He argues that
counsel's failure to object to the presentence report and
the Government's refusal to move for the additional
reduction prejudiced him; and that "there is a
reasonable probability that but for counsel's error, the
outcome would have been different." ECF No. 40-1 at 5.
In support of his argument, Defendant cites United States
v. Divens, 650 F.3d 343 (4th Cir. 2011). In
Divens, the defendant pled guilty to possession with
intent to distribute cocaine. Id. at 344. The
defendant signed an acceptance of responsibility agreement
admitting guilt of the charged crime and expressing remorse
but declined to sign a plea agreement which would waive
certain rights to appellate review and collateral attack.
Id. "Solely because Divens would not waive
these rights, the Government refused to move for an
additional one-level reduction for acceptance of
responsibility under U.S.S.G. § 3E1.1(b)."
Id. The defendant objected to the guidelines
calculation, arguing that his unwillingness to execute the
appellate waiver did not justify the Government's refusal
to file a motion for an additional reduction. Id. At
sentencing, the district court overruled the defendant's
objection, finding that the decision to move for an
additional one level reduction lay "completely in the
discretion of the Government." Id. The
defendant appealed, challenging the district court's
failure to compel the Government to move for the §
3E1.1(b) reduction. Id. The Fourth Circuit found
that the government's reasoning for withholding that
reduction was insufficient and remanded for resentencing.
Id. at 350. That court concluded that "the
Government retains discretion to refuse to move for an
additional one-level reduction, but only on the basis of an
interest recognized by the guideline itself" as opposed
to "any conceivable legitimate interest."
Id. at 347.
argument based on Divens is unavailing, as the facts
of that case are distinguishable from those before this
Court; notably, Divens did not involve a binding
plea agreement pursuant to Rule 11(c)(1)(C) in which the
parties agreed to the sentence regardless of the otherwise
applicable guidelines. Although Defendant entered a timely
plea of guilty, his C-plea superseded the application of
§ 3E1.1(b). Here, unlike in Divens, the
Government did not unreasonably withhold a reduction under
§ 3E1.1(b) at sentencing, nor did the Government assert
that it did not apply. In fact, whether Defendant received a
two or three level departure for acceptance of responsibility
would not have made a difference once the Court accepted the
C-plea. Once a C-plea is accepted, this Court may impose a
sentence pursuant to that plea agreement even if the sentence
falls outside the otherwise applicable guidelines.
See, e.g., United States v.
Bernard, 373 F.3d 339, 343-344 (3rd Cir. 2004)
("sentencing court has the authority to accept a plea
agreement stipulating to a sentencing factor or a provision
of the sentencing guidelines that otherwise would not apply,
or specifying a sentence that falls outside the applicable
guidelines range. Once the District Court has accepted such
an agreement, it is binding").
note, if Defendant had received a three-level downward
departure for acceptance of responsibility, and also received
the reduction in his CHC from III to II, the guideline range
would have been 324-405 months; therefore, the 360 month
sentence was well within the sentencing range propounded by
Defendant. The Court finds that due to the binding nature of
the plea agreement and the dictates of Rule 11(c)(1)(C),
counsel did not err or ...