United States District Court, D. Maryland
DEBORAH K. CHASANOW UNITED STATES DISTRICT JUDGE
pending and ready for resolution in this case is a motion
filed by Petitioner Sean Clark Sekular
("Petitioner") to vacate, set aside, or correct his
sentence pursuant to 28 U.S.C. § 2255 (ECF No.
The issues have been briefed, and the court now rules, no
hearing being deemed necessary. Local Rule 105.6. For the
following reasons, the motion will be denied.
December 3, 2012, Petitioner was indicted for conspiracy to
distribute and possess with the intent to distribute 100
kilograms or more of marijuana, in violation of 21 U.S.C.
§ 846, and conspiracy to commit money laundering, in
violation of 18 U.S.C. § 1956(h). (ECF No. 1). On May
24, 2013, Petitioner pled guilty to the charges against him.
(ECF No. 139). Pursuant to his signed plea agreement,
Petitioner had a base offense level of 30 under the U.S.
Sentencing Guidelines (the "Guidelines") in effect
at the time. (Id. at 4) . After enhancements and
reductions, Petitioner's overall offense level was
decreased by three levels to level 27, which, combined with
his category I criminal history, provided a Guidelines range
of 70-87 months imprisonment. (Id. at 5; ECF No.
163, at 20) . He was sentenced to a term of 78 months
imprisonment. (ECF No. 219) . Petitioner did not appeal.
On November 26, 2013, he timely filed the pending motion to
vacate, set aside, or correct his sentence pursuant to 28
U.S.C. § 2255. (ECF No. 251). The government opposed
(ECF No. 261), and Petitioner filed a reply (ECF Nos. 301) .
He makes a single claim that he was not sentenced pursuant to
the correct guideline, i.e., for no kilograms of marijuana.
Motion to Vacate, Set Aside, or Correct Sentence
Standard of Review
2255 requires a petitioner asserting constitutional error to
prove by a preponderance of the evidence that "the
sentence was imposed in violation of the Constitution or laws
of the United States, or that the court was without
jurisdiction to impose such sentence, or that the sentence
was in excess of the maximum authorized by law[.]" 28
U.S.C. § 2255(a) . If the § 2255 motion, along with
the files and records of the case, conclusively shows that
the petitioner is not entitled to relief, a hearing on the
motion is unnecessary and the claims raised in the motion may
be summarily denied. See Id. § 2255(b) .
government points out, Petitioner never brought the claim he
brings in this motion on a direct appeal. The ordinary rule
is that "an error can be attacked on collateral review
only if first challenged on direct review." United
States v. Harris, 183 F.3d 313, 317 (4th Cir.
1999); see also United States v. Sanders, 247 F.3d
139, 144 (4th Cir. 2001) . "In order to
collaterally attack a conviction or sentence based upon
errors that could have been but were not pursued on direct
appeal, the movant must show cause and actual prejudice
resulting from the errors of which he complains[.]"
United States v. Mikalajunas, 186 F.3d 490, 492-93
(4th Cir. 1999) . A showing of cause for a
procedural default "must turn on something external to
the defense, such as the novelty of the claim or a denial of
effective assistance of counsel." Id. at 493.
To establish actual prejudice, the petitioner must show that
the error worked to his actual and substantial disadvantage,
rather than merely creating a possibility of prejudice.
Murray v. Carrier, . 477 U.S. 478, 494 (1986) .
alleges that his procedural default is the result of
ineffective assistance of counsel. Claims of ineffective
assistance of counsel are generally governed by the
well-settled standard adopted by the United States Supreme
Court in Strickland v. Washington, 466 U.S. 668
(1984) . To prevail on a Strickland claim, the
petitioner must show both that his attorney's performance
fell below an objective standard of reasonableness and that
he suffered actual prejudice. See Strickland, 466
U.S. at 688. There is a strong presumption that counsel's
conduct falls within a wide range of reasonably professional
conduct, and courts must be highly deferential in
scrutinizing counsel's performance. Strickland,
466 U.S. at 688-89; Bunch v. Thompson, 949 F.2d
1354, 1363 (4th Cir. 1991).
asserts that his counsel refused to file an appeal of his
original sentence. Refusal to file an appeal that a criminal
defendant has requested constitutes ineffective assistance of
counsel regardless of whether it would prejudice the outcome
of defendant's case. U.S. v. Peak, 992 F.2d 39,
41-42 (citing Rodriquez v. U.S., 395 U.S. 327,
329-330 (1969)); see also U.S. v. Wright, 538
Fed.App'x 237 (4th Cir. 2013)
("[C]ounsel's failure to file a notice of appeal as
directed constitutes per se ineffective assistance.")
(unpublished opinion). Petitioner admits, however, that
counsel did not refuse outright, but, rather, "they
convinced him it was an impracticable exercise."
(Id. at 5) . In short, counsel advised against
appeal and he accepted their advice. See Roe v.
Flores-Ortega, 528 U.S. 470, 478 (2000) ("If
counsel has consulted with the defendant, the question of
deficient performance is easily answered: Counsel performs in
a professionally unreasonable manner only by failing to
follow the defendant's express instructions with respect
to an appeal."). Petitioner, therefore, cannot justify
his failure to appeal by way of ineffective assistance of
counsel, and his claim that could have been raised on appeal
is procedurally defaulted.
Petitioner's Base Offense Level
Petitioner had not procedurally defaulted, his claim here
lacks merit. Petitioner contends that the court made an error
in establishing his base offense level of 30 for sentencing
purposes. (ECF No. 251, at 4) . Specifically, he says that
the indictment and plea agreement indicated that he was
charged with possession with intent to distribute 100
kilograms of marijuana, whereas the Guidelines establish a
base level of 30 for a drug quantity of 700-1, 000 kilograms.
(Id.; ECF No. 251-1, at 4) . Under the Guidelines,
he argues, he should have started at a base level of 26,
which covers drug quantities of 100-400 kilograms of
marijuana. (See ECF No. 251-1, at 3) .
Petitioner's argument at face value, he seems to have
confused the quantity identified in the name of crime to
which he pled guilty with the drug quantities actually
involved in his conspiracy. Although the offense for which he
was convicted was "conspiracy to distribute and possess
with intent to distribute 100 kilograms or more of marijuana,
" the government's case against him was not based on
exactly 100 kilograms. Rather, "100 kilograms or
more" meant significantly more in this case. Inclusion
of the quantity 100 kilograms in the name of the offense