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Dowell v. United States

United States District Court, D. Maryland, Southern Division

February 2, 2018

JADDAI DOWELL, Petitioner,
v.
UNITED STATES Respondent.

          MEMORANDUM OPINION

          GEORGE J. HAZEL UNITED STATES DISTRICT JUDGE

         On May 30, 2017. Petitioner Jaddai Dowell filed a Motion to Vacate, Set Aside or Correet Sentence Pursuant to 18 U.S.C. § 2255. ECF No. 64. The Government filed a brief in opposition on August 4. 2017. ECF No. 67. to which Petitioner has not filed a response. No hearing is necessary to resolve the Motion. See 28 U.S.C. § 2255(b). For the reasons that follow. Petitioner's Motion will be denied.[1]

         I. BACKGROUND

         On March 22. 2016. Dowel I walked on to the Suitland Federal Center properly in Suitland. Maryland when a Federal Protective Service officer stopped him and found a gun in his possession. ECF No. 67-1 at 9 (Plea Agreement Stipulated Facts).[2] Prior to this incident. Dowell. in September of 2008. was convicted of robbery/complicity in violation of Ohio Revised Code Section 2911.02. Id. Because Dowell had been previously convicted of an offense carrying a maximum penalty of more than one year imprisonment, and his civil rights had not been restored, lie was ineligible to possess a firearm and ammunition and charged with one count of possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1).

         Dowell. while represented by Attorney John Chamble of the Office of the Federal Public Defender, entered a plea of guilty pursuant to an agreement with the Government on August 5, 2016. In the agreement. Dowell expressly waived his right to appeal his sentence as follows:

The Defendant and this Office knowingly waive all right, pursuant to 18 U.S.C. § 3742 or otherwise, to appeal whatever sentence is imposed (including the right to appeal any issues that relate to the establishment of the advisory guidelines range, the determination of the Defendant's criminal history, the weighing of the sentencing factors, and the decision whether to impose and the calculation of any term of imprisonment, fine, order of forfeiture, order of restitution, and term or condition of supervised release), except as follows: (i) the Defendant reserves the right to appeal any term of imprisonment above the advisory guidelines range resulting from an adjusted base offense level of 17; (ii) and this Office reserves the right to appeal any term of imprisonment below the advisory guidelines range resulting from an adjusted base offense level of 12.

ECF No. 67-1 at 6.

         At the August 5 hearing, the Court engaged in a colloquy with Dowell as required by Federal Rule of Criminal Procedure 11 whereby the Court asked Dowell if he was aware that he was "waiving all rights to appeal any term of imprisonment above the advisory guideline range resulting from an adjusted base offense level of 17." ECT No. 67-2 at 17-18. Dowell indicated that he understood. Id. As set forth in the plea agreement, the Government's position was that the base offense level for Dowell's charge was 20 pursuant to the United States Sentencing Guidelines ("U.S.S.G") § 2K2.1 (a)(4)(A) because his 2008 conviction was "a crime pf violence." Dowell disagreed that the prior conviction was a crime of violence and posited that the base offense level should be 14. Id. at 4. The agreement also noted that the Government would not oppose a three level reduction for acceptance of responsibility if the Court determined the base offense level was 20, ECF No. 67-1 at 4.[3]

         The case came before the Court for sentencing on October 13, 2016. While United States Probation prepared a presentence report with a recommended base offense level of 14. alter concluding that the 2008 conviction was not a crime of violence, the Government objected consistent with its position in the plea agreement. See ECF No. 67-3 at 4 (Sentencing 1 tearing Transcript). After oral argument, the Court found that Dowell"s prior conviction under the Ohio Robbery Statute was a crime of violence for sentencing purposes and designated a base offense level of 20. Id. at 15. The Court reduced the offense level by 3-levels to an offense level of 17 based on acceptance of responsibility. Further, it was agreed that Dowell was in criminal history category III. which the Court calculated to result in a sentencing guideline range of 30-37 months, Id. Ultimately, the Court departed downward from this range and sentenced Dowell to a period of 27 months, Id. at 26. Had the Court adopted Dowell's recommended base offense level of 14. and a two-level reduction as agreed to by the Government, he would have been sentenced under a guidelines range of 1 5-21 months.

         Following sentencing. Dowell tiled an appeal as to whether his prior conviction under the Ohio Robbery Statute constituted a crime of violence. However, on April 10. 2017. the Fourth Circuit found that Dowell had waived his right to appeal as a part of his plea agreement and dismissed the appeal without addressing the merits. See United Stales v. Dowell, No. 16-4703 (4th Cir. April 10. 2017) (provided as ECF No. 67-4). Dowell"s Petition followed.

         II. DISCUSSION

         In order to be entitled to relief under 28 U.S.C. § 2255. a petitioner must 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): see also United States v. Moore, 993 F.2d 1541 (4th Cir. 1993) (unpublished) (citing Vanater v. Boles. 377 F.2d 898 (4th Cir. 1967)). Dowell advances three theories in support of his motion: 1) his conviction was imposed in violation of his right to effective assistance of counsel: 2) his sentence was invalid because the Court errored in finding that his 2008 conviction constituted a crime of violence: and 3) his appeal waiver was not knowing and voluntary. See ECF No. 1 ¶¶ 13-15. Each theory is addressed in turn.[4]

         A. Ineffective Assistance of Counsel

         Dowell alleges that Chamble incorrectly advised him that the Court's crime of violence determination was appealable, an error, he argues, constituting ineffective assistance of counsel under the Sixth Amendment. See ECF No. 1 ¶ 3; ECF No. 1 -1. To succeed on an ineffective assistance of counsel claim. Dowell must first show that his counsel's performance fell below an objective standard of reasonableness. Strickland v. Washington. 466 U.S. 668. 669 (1984). Specifically. Dowell must show that "counsel made errors so fundamental that counsel was not functioning as the counsel guaranteed by the Sixth Amendment." Harrington v. Richter.562 U.S. 86. 88 (2011) (citing Strickland. 466 U.S. at 694). The core question under Strickland is whether "an attorney's representation amounted to incompetence under prevailing professional norms, not whether it deviated from hest practices or most common custom." Id., Dowell must also demonstrate prejudice by showing "a reasonable ...


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