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Patterson v. United States

United States District Court, N.D. Texas, Dallas Division

May 31, 2017

UNITED STATES OF AMERICA, Respondent. Criminal, 3:14-CR-378-L-01


          Sam A. Lindsay United States District Judge

         On August 17, 2016, Petitioner filed a motion to vacate sentence under 28 U.S.C. § 2255. The Government filed a response in opposition, and Petitioner has filed a reply. Upon review of the relevant pleadings, record, and applicable law, and for the reasons that follow, the court denies the section 2255 motion.

         I. Background

         Petitioner pled guilty to conspiring to traffic in counterfeit goods and was sentenced well below the calculated guidelines range to 24 months' imprisonment and a two-year term of supervised release, and was ordered to pay restitution in the amount of $27, 670.07. Crim. Doc. 48. He did not file a direct appeal but, subsequently, filed this timely section 2255 motion asserting ineffective assistance of counsel at sentencing. Doc. 1. Specifically, Petitioner argues the infringement value (loss amount) erroneously included a double count of over $400, 000 worth of counterfeit goods and counsel failed to consult with Petitioner about the infringement amount and object to it at sentencing. Doc. 1 at 6, 14. Petitioner also raises other challenges to the calculation of the infringement value, which he alleges counsel failed to present to the Court at sentencing - namely the use of market price to appraise the counterfeit items and the inclusion of “order inquiries” in the value. Doc. 1 at 15-20.

         The Government acknowledges that: (1) the infringement value was inadvertently double counted, and (2) the correct infringement value should have been approximately $1.3 to $1.4 million (instead of $1.7 million), which would have resulted in a guidelines imprisonment range of 46 to 57 months, rather than 57-60 months. Doc. 12 at 5, 13-15. The Government, nevertheless opposes Petitioner's ineffective assistance claim, arguing that defense counsel was not constitutionally deficient for failing to discover the error and that Petitioner cannot show prejudice. Doc. 12 at 5-6. The Government also suggests an evidentiary hearing may be necessary to resolve these issues. The Government, however, opposes Petitioner's additional challenges to the calculated infringement value that he contends would have resulted in an even lower guidelines imprisonment range of 37 to 46 months. Doc. 12 at 14; Doc. 1 at 23.

         Petitioner replies that as a result of the guidelines calculation error, he suffered “inherent harm” which was not “inconsequential, ” and that his “Strickland prejudice is neither illusory nor speculative, even if difficult to quantify.” Doc. 16 at 1, 7. Petitioner avers, “Only Judge Lindsay knows what effect the false start had on the movant's en[dg]ame.” Doc. 16 at 7; see also Doc. 1 at 25 (“This Court is the only one who can know whether Mr. Patterson suffered prejudice, because it is the one that decided on a sentence and granted a downward variance from what it erroneously was led to believe was a 57-60 month guidelines range.”). Agreeing with this last contention and for the sake of judicial economy, the court vacates the referral of the case to the magistrate judge made pursuant to Special Order 3 and addresses the section 2255 motion, which is now ripe for review.

         II. Analysis

         After conviction and exhaustion or waiver of the right to direct appeal, the court presumes that a petitioner stands fairly and finally convicted. See United States v. Cervantes, 132 F.3d 1106, 1109 (5th Cir. 1998) (citing United States v. Shaid, 937 F.2d 228, 231-32 (5th Cir. 1991) (en banc)). “Relief under 28 U.S.C. § 2255 is reserved for transgressions of constitutional rights and for a narrow range of injuries that could not have been raised on direct appeal and would, if condoned, result in a complete miscarriage of justice.” United States v. Vaughn, 955 F.2d 367, 368 (5th Cir. 1992). Under section 2255, a petitioner can collaterally challenge his conviction “only on issues of constitutional or jurisdictional magnitude.” United States v. Willis, 273 F.3d 592, 595 (5th Cir. 2001).

         Petitioner contends that counsel rendered ineffective assistance at sentencing. To establish ineffective assistance of counsel, a petitioner must show that counsel's performance was deficient and that the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687-688 (1984). Failure to establish either deficient performance or prejudice defeats the claim. Id. at 697. Indeed, if a determination as to the prejudice prong “is easier” and disposes of an ineffectiveness claim, then “that course should be followed.” Id. at 698.

         To prove prejudice, a petitioner “must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694. In the context of ineffective assistance of counsel at sentencing, a petitioner must demonstrate that the sentence was increased by the deficient performance of defense counsel. Glover v. United States, 531 U.S. 198, 200, 203-204 (2001); see also United States v. Grammas, 376 F.3d 433, 437-438 (5th Cir. 2004). As noted in Glover, “any amount of actual jail time has Sixth Amendment significance.” 531 U.S. at 203.

         Here, Petitioner cannot establish that counsel's alleged failure to object at sentencing prejudiced him. Even considering a revised guidelines range of 46-57 months, or even the lower range of 37-46 months that Petitioner argues would have resulted if all of his objections were lodged and sustained, the undersigned would not have reduced Petitioner's sentence below 24 months, and definitely would not have considered probation. At sentencing, the court explained in detail its reasons for granting the significant downward variance and imposing a 24-month sentence as follows:

The Court is tasked with coming up with a sentence that is fair, just, and reasonable in this case. The Court also takes into account paragraph (a)(1) of Section 3553, (a)(1) allows the Court to consider the history and characteristics of the Defendant. There are a number of things in that regard. As the record reflects, the type of conduct in which Mr. Patterson engaged went on for a number of years. In fact, it predates the time of the indictment. I think the indictment goes from January 2010 to December of 2013, approximately four years.
As the Court stated earlier, there is an indication that Mr. Patterson was engaged in this type of conduct prior to the time of the indictment. In fact, there was a cease-and-desist letter. After that letter was issued, Mr. Patterson closed down the business.
There are other things that the Court can look at. As the Court stated earlier, the 25 character letters. The Court mentioned that earlier. There is also a binder that chronicles Mr. Patterson's life. There are a number of things he has done right. He has acknowledged that he has made a mistake. Of course, when someone comes before me, I expect at a minimum that he or she acknowledge a mistake has been made because as far as I am concerned, when a person acknowledges until a person acknowledges that a mistake has been made, there really can be no road to recovery or any ...

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