Lewis v. United States

          MEMORANDUM OPINION

          Richard D. Bennett United States District Judge.

         On June 26, 2017, Petitioner Bruce Kevin Lewis ('Petitioner" or "Lewis") pled guilty to one count of conspiracy to distribute and possess with intent to distribute oxycodone, in violation of 21 U.S.C. § 846. (ECF No. 466; ECF No. 1, at 6.) On October 3, 2017, this Court^[1] sentenced Fleming to 60 months of imprisonment. (ECF No. 494.) Currently pending before this Court is Petitioner's Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence. (ECF No. 553.) For the following reasons, Petitioner's Motion (ECF No. 553) is DENIED.

         BACKGROUND

         According to the facts to which the parties stipulated in the Plea Agreement, Lewis and his co-conspirator, Donald Russell, illegally possessed and distributed oxycodone through two wellness clinics, which they owned and operated: PG Wellness Center, LLC located in Prince George's County, Maryland; and A Plus Pain Clinic, LLC, located in the District of Columbia. (Plea Agreement 4, ECF No. 468.) Russell oversaw the business activities of A Plus Pain and Lewis ran the day-to-day operations at PG Wellness. (Id.) Lewis and Russell operated these clinics as "pill mills," that is, they used the clinics to prescribe oxycodone to patients who had no legitimate medical need for the substance. (Id.) They hired and supervised employees, approved financial transactions on behalf of the companies, and they split their profits evenly among themselves. (Id.) Together, they coordinated visits by "runners," individuals who did not have a medical need for oxycodone, to visit both clinics and fill oxycodone prescriptions at pharmacies. (Id.) To facilitate their unlawful activities, Lewis illegally bought and sold oxycodone pills, sometimes in bulk. (Id.)

         On May 2, 2015 the Grand Jury for the District of Maryland issued an indictment against Lewis and others charging them with conspiracy to distribute and possess with intent to distribute oxycodone, in violation of 21 U.S.C. § 846. (ECF No. 1, at 6.) On June 26, 2017, Lewis pled guilty to the offense after entering into a plea agreement. (ECF No. 468). Before his sentencing, the Probation Office submitted a Presentence Investigation Report recommending that Petitioner's Sentencing Guideline Range should be 135 to 168 months, based on an offense level of 31 and a criminal history of III. (ECF No. 485, at 13.)

         On October 3, 2017 this Court held a sentencing hearing. (ECF No. 491.) At the hearing, and over the Government's objections, defense counsel argued that a criminal history of III over-represented Petitioner's history. (Sentencing Tr. 2:11-14, ECF No. 545.) This argument was successful, as this Court noted it would depart from a criminal history of Ill. and apply a criminal history of I instead. (Id. at 2:18-3:5; 17:19-22.) This Court also determined that Petitioner's offense level should be adjusted to 27. (Id. at 3:2-5.) Based on an adjusted offense level of 27 and a criminal history category of I, this Court calculated that Petitioner's Sentencing Guidelines range fell between 70 and 87 months-nearly half of the range recommended by the Presentence Investigation Report. (Id.)

         In light of these calculations, the Government requested a sentence of 70 months, at the low end of the adjusted guideline range. (Id. at 11:1-3.) In response, this Court noted that Alex Mori, a defendant in a related "pill mill" case, had recently been sentenced to only 48 months of incarceration. (Id. at 4:1-2; 14:3-11.) The Government replied that Lewis deserved a harsher sentence than Mori because Lewis and Russell had operated two pill mill clinics whereas Mori and his partner had only operated one. (Id. at 4:11-19; 11:21-25.) Counsel for Defendant argued that Lewis was substantially less culpable than his co-defendant, and, accordingly, deserved a sentence "at or below the sentence that was given to Mr. Mori in this case." (Id. at 8:8-13.) Having entertained these arguments, the Court imposed a 60-month prison sentence-a full 10 months below the adjusted Guidelines range and greatly below the range recommended by the Presentence Investigation Report. (Id. at 14:12-19; ECF No. 494, at 2.)

         On June 8, 2018 Petitioner filed the pending Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (ECF No. 553.) In his Motion, Petitioner contends that his counsel was constitutionally ineffective at sentencing, despite securing a sentence about half as long as the sentence that the Probation office recommended and fell 10 months below the adjusted Guidelines range.

         STANDARD OF REVIEW

         This Court recognizes that Petitioner is pro se and has accorded his pleadings liberal construction. See Erickson v. Pardus, 551 U.S. 89, 94 (2007); see also Alley v. Yadkin County Sheriff Dept., No. 17-1249, 698 Fed.Appx. 141, 142 (4th Cir. Oct. 5, 2017) (citing Erickson for the proposition that "[p]ro se complaints and pleadings, however inartfully pleaded, must be liberally construed and held to less stringent standards than formal pleadings drafted by lawyers"). Under 28 U.S.C. § 2255, a prisoner in custody may seek to vacate, set aside or correct his sentence on four grounds: (1) the sentence was imposed in violation of the Constitution or laws of the United States, (2) the court was without jurisdiction to impose the sentence, (3) the sentence was in excess of the maximum authorized by law, or (4) the sentence is otherwise subject to a collateral attack. Hill v. United States, 368 U.S. 424, 426-27 (1962) (citing 28 U.S.C. § 2255). "[A]n error of law does not provide a basis for collateral attack unless the claimed error constituted 'a fundamental defect which inherently results in a complete miscarriage of justice.'" United States v. Addonizio, 442 U.S. 178, 185 (1979) (quoting Hill, 368 U.S. at 428).

         The scope of a § 2255 collateral attack is far narrower than an appeal, and a '"collateral challenge may not do service for an appeal.'" Foster v. Chatman, ___ U.S. ___, 136 S.Ct. 1737, 1758 (2016) (quoting United States v. Frady, 456 U.S. 152, 165 (1982)). Thus, procedural default will bar consideration under § 2255 of any matters that "could have been but were not pursued on direct appeal, [unless] the movant show cause and actual prejudice resulting from the errors of which he complains." United States v. Pettiford, 612 F.3d 270, 280 (4th Cir. 2010) (citing United States v. Mkalajunas, 186 F.3d 490, 492-93 (4th Or. 1999)).

         ANALYSIS

         Petitioner argues that his counsel was ineffective at sentencing because he failed to present national sentencing statistics for this Court's consideration and did not argue for a substantially lesser sentence than the one imposed upon Mori, a defendant in a similar "pill mill" case. A freestanding claim of ineffective assistance of counsel may properly be asserted for the first time in a § 2255 petition. United States v. DeFusco, 949 F.2d 114, 120-21 (4th Cir. 1991). To state a claim for relief based on a Sixth Amendment claim of ineffective assistance of counsel, a petitioner must satisfy the two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 671 (1984). The first, or "performance," prong of the test requires a showing that defense counsel's representation was deficient and fell below an "objective standard of reasonableness." Id. at 688. In making this determination, courts apply a strong presumption that counsel's actions fell within the "wide range of reasonable professional assistance." Id. at 688-89. The second, or "prejudice" prong, requires that a petitioner demonstrate that his counsel's errors deprived him of a fair trial. Id. at 687.

         In applying the Strickland test, the United States Court of Appeals for the Fourth Circuit has noted that there is no reason to address both prongs if the defendant makes '"an insufficient showing on one.'" Moore v. Hardee,723 F.3d 488, 500 (4th Cir. 2013) (quoting Strickland, 466 U.S. at 697). Thus, ineffective assistance of counsel claims may be disposed of based solely on a deficiency in satisfying either the "performance" prong or the "prejudice" prong. See Strickland, 466 U.S. at 697. The Fourth Circuit has noted further that the mere possibility of a ...