United States District Court, D. Maryland
Richard D. Bennett United States District Judge.
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 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)
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.)
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.)
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.
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.)
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.
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).
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)).
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.
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