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Bennett v. United States

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

February 28, 2018

TAMEKA ESTELLE BENNETT, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION AND ORDER

          ED KINKEADE, UNITED STATES DISTRICT JUDGE.

         Before the Court is Tameka Estelle Bennett's (Movant) motion to vacate, set-aside, or correct sentence pursuant 28 U.S.C. § 2255. For the following reasons, the Court denies the motion.

         I. BACKGROUND

         Bennett was charged by second superseding indictment with conspiracy to obstruct justice through evidence concealment in violation of 18 U.S.C. § 1512(b)(2)(B), (k) (Count One); aiding and abetting obstruction of justice through evidence concealment in violation of 18 U.S.C. §§ 1512(b)(2)(B), (c)(1), and 2 (Count Two); obstruction of due administration of justice in violation of 18 U.S.C. § 1503(a) (Count Three); and felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2) (Count Five). (Doc. 50.) Unless otherwise indicated, all document numbers refer to the docket number assigned in the underlying criminal action, 3:10-CR-345-K(1). She pled not guilty, and a jury convicted her of all four of the counts against her. (Doc. 89.)

         The United States Court of Appeals set out the following evidence and proceedings in the appellate opinion:

Around noon on October 29, 2010, Alicia Madrigal allowed two men in green vests posing as termite inspectors to enter her Dallas townhome. The men left without incident. Later that day, they broke into Madrigal's home. One of the men pointed a silver gun with a wooden handle at Madrigal while the other removed a small safe from her bedroom. The men loaded the safe into a silver Dodge Avenger and drove away.
The resulting police investigation located a neighbor who had recorded the Avenger's license plate number. Police determined that Tameka Bennett had rented the car from Enterprise a few days earlier. Moses Coppin was listed as an additional driver in the rental agreement. The police staked out the local Enterprise rental center on the day the vehicle was to be returned and arrested Coppin when he attempted to return the vehicle. They found a fully-loaded handgun in Coppin's possession that matched Madrigal's description of the one used during the burglary. The police arrested Coppin. On his cell phone police discovered photographs of women wearing Madrigal's jewelry.
Bennett was Coppin's girlfriend at the time of his arrest and had the stolen jewelry in her possession. The day after the arrest, Bennett, who owned a local body shop, told one of her employees, James Collins, that she had to recover Coppin's phone from the police “cause those stupid SOBs have the evidence on the phone and they don't know they have it.” Later that day, Bennett visited the county jail and retrieved Coppin's phone from the property room. She then removed the phone's subscriber identity module (“SIM”) card. Not long after Bennett left the jail with the cell phone, the lead detective on Coppin's case received a search warrant for the phone. The detective successfully tracked Bennett down and retrieved the phone from her possession. The phone no longer contained the SIM card, but Bennett had not removed the memory card.
Bennett then reported the day's activities to Coppin, who remained incarcerated in Dallas County Jail, awaiting a detention hearing on an aggravated burglary charge. While they were speaking on the phone, they realized that the cell phone's memory card might also contain evidence. With Coppin on the phone, Bennett contacted Coppin's cell phone provider to ask if the phone's memory could be cleared remotely. She was told that could not be done. In another conversation, Coppin suggested to Bennett that she find someone to claim ownership of the gun in order to avoid a felon-in-possession charge. Bennett, in turn, directly asked Collins to tell the police that the gun was his so that Coppin “wouldn't go to jail.” Collins refused.
Not long after Coppin posted bond in state court, the Government filed a criminal complaint against him on November 16, 2010 for being a felon in possession of a weapon and arrested him the next day. On the day of Coppin's arrest, Bennett again approached Collins and suggested that admitting that the gun was his would be “worth a thousand dollars.” Collins understood Bennett to be offering him $1, 000 to claim that the gun was his. Collins again refused. The district court held a detention hearing on November 18, 2010 and found probable cause to support the criminal complaint. Coppin was detained in federal custody. He was subsequently indicted on the felon-in-possession charge.
While Coppin was being prosecuted for this charge, Bennett had been moving the stolen jewelry between various places in their Dallas home and her body shop in an effort to conceal it from the police. Bennett's daughter, Cabria, contacted the police and reported that Bennett had the stolen jewelry. Cabria secretly arranged with a police officer to leave the jewelry on the front porch of their Dallas home, which was then recovered by the police. Madrigal identified the jewelry as her own and Coppin as one of the burglars. The police then executed a search warrant on Bennett's home and found a loaded revolver under her mattress and two other guns hidden under the floorboards in her closet.

United States v. Coppin, 569 F. App'x 326, 329-30 (5th Cir. 2014).

         The presentence report (PSR) used the 2011 United States Sentencing Guidelines (USSG). (Doc. 97-1 at 11, ¶ 32.) It grouped the obstruction offenses with the count for the underlying offense. (Id. at ¶¶ 33-34.) The cross-reference under USSG § 2K2.1(c)(1) stated that if the defendant used or possessed a firearm in connection with the commission of another offense, USSG § 2X1.1 should be applied to that other offense. (Id. at 12, ¶ 35.) Bennett possessed the firearm in connection with the distribution of a controlled substance. (Id.) Under § 2X.1.1, the base offense level is the base offense level of the substantive offense, which was delivery of a controlled substance. (Id. at ¶ 36). That had a base offense level of 26, which was increased by two levels to 28, because she possessed a revolver, rifle, and shotgun. (Id.) Two levels were added under USSG §3B1.4, because Bennett used or attempted to use a minor in the offense. (Id. at ¶ 39.) Two levels were added for obstruction of justice under USSG § 3C1.1. (Id. at 12-13, ¶ 40.) The total offense level was 32. (Id. at ¶ 44.) With the offense level of 32 and a criminal history category of two, the resulting guideline range was 135-168 months' imprisonment. (Id. at 23, ¶ 85.) The statutory maximum sentence for Counts One, Three, and Five was 10 years, and the statutory maximum sentence for Count Two was 20 years. (Id. at ¶ 84.) Bennett received a sentence of 120 months' imprisonment each for Counts One, Three, and Five to be served concurrently, and 180 months' imprisonment for Count Two to be served concurrently with the sentences for Counts One, Three, and Five, for a total aggregate sentence of 180 month's imprisonment. (Doc. 113.)

         On appeal, the conviction for Count One was vacated, and the case was remanded for resentencing. (Doc. 153); Coppin, 569 F. App'x 326. She was then sentenced to 120 months' imprisonment each for Counts Three and Five to be served concurrently, and 180 months' imprisonment for Count Two to be served concurrently with the sentences for Counts Three and Five, for a total aggregate sentence of 180 month's imprisonment. (Doc. 161.)

         Bennett raises the following grounds in the motion to vacate:

(1) Counsel was ineffective for:
(a) failing to seek the dismissal of Count Two because it did not state an essential element of the offense;
(b) failing to seek the dismissal of Count Two because it charged two distinct offenses;
(c) failing to object to the mis-grouping of the counts under the sentencing guidelines;
(d) failing to object to the use of a cross-reference in the sentencing guidelines to determine the base offense level;
(e) failing to object to the loss amount calculation;
(f) failing to advise her that she could plead guilty and not cooperate with the government and still receive credit for an ...

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