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Sekular v. United States

United States District Court, D. Maryland

November 8, 2016

SEAN CLARK SEKULAR
v.
UNITED STATES OF AMERICA Criminal No. DKC 12-0624-002

          MEMORANDUM OPINION

          DEBORAH K. CHASANOW UNITED STATES DISTRICT JUDGE

         Presently 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. 251)[1] 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.

         I. Background

         On 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.[2] (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.

         II. Motion to Vacate, Set Aside, or Correct Sentence

         A. Standard of Review

         Section 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) .

         B. Procedural Default

         As the 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) .

         Petitioner 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).

         Petitioner 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.[3] 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.

         C. Petitioner's Base Offense Level

         Even if 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) .

         Taking 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 could ...


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