United States District Court, N.D. Texas, Fort Worth Division
MEMORANDUM OPINION AND ORDER
MCBRYDE UNITED STATES DISTRICT JUDGE.
for consideration the motion of Brandi Lee Braddock
("movant") under 28 U.S.C. § 2255 to vacate,
set aside, or correct sentence. After having considered the
motion (including additional type-written pages attached
thereto), the government's response, and pertinent parts
of the record in No. 4:17-CR-161-A, styled "United
States of America v. Brandi Lee Braddock," the court has
concluded that the motion should be denied.
contained in the record of the underlying criminal case
discloses the following:
September 20, 2017, movant was named in a one-count
information charging her with conspiracy to possess with
intent to distribute a mixture and substance containing a
detectable amount of methamphetamine, in violation of 21
U.S.C. § 84 6. CR Doc. 76. On October 4, 2017, movant
appeared before the court with the intent to enter a plea of
guilty to the offense charged without benefit of a plea
agreement. CR Doc. 80. Movant and her attorney signed a
factual resume setting forth the elements of the offense, the
maximum penalty movant faced, and the stipulated facts
supporting movant's guilt. CR Doc. 83. Movant and counsel
also signed a waiver of indictment. CR Doc. 82. Under oath,
movant stated that no one had made any promise or assurance
of any kind to induce her to plead guilty. Further, movant
stated her understanding that the guideline range was
advisory and was one of many sentencing factors the court
could consider; that the guideline range could not be
calculated until the presentence report (“PSR")
was prepared; the court could impose a sentence more severe
than the sentence recommended by the advisory guidelines and
movant would be bound by her guilty plea; movant was
satisfied with her counsel and had no complaints regarding
her representation; and, movant and counsel had reviewed the
factual resume and movant understood the meaning of
everything in it and the stipulated facts were true. CR Doc.
probation officer prepared a PSR reflecting that movant's
base offense level was 32. CR Doc. 86, ¶ 30. Movant
received three two-level enhancements for possession of a
firearm, id. ¶ 31, importation of
methamphetamine from Mexico, Id. ¶ 32, and
maintaining a premises for manufacturing or distributing a
controlled substance, id. ¶ 33. She
additionally-received a two-level enhancement for obstruction
of justice. Id. ¶ 36. She received a two-level
and a one-level adjustment for acceptance of responsibility.
Id. ¶¶ 39-40. Based on a total offense
level of 37 and a criminal history category of IV,
movant's guideline range was 292 to 365 months, but the
range became 24 0 months, the statutorily authorized
sentence. Id. ¶ 95. Movant objected and the
probation officer filed an addendum to the PSR. CR Doc. 91.
In addition, the probation officer prepared a second addendum
to the PSR following receipt of laboratory documents from the
government confirming the weight and presence of
methamphetamine, not its purity. CR Doc. 96.
February 16, 2018, movant was sentenced to a term of
imprisonment of 200 months. CR Doc. 100. The court heard
testimony in support of the government's motion for
downward departure and granted movant a 40-month reduction
for her cooperation. CR Doc. 107 at 19. The court noted that
it would have imposed "at least that much of a
sentence" even if she had not received the two-level
increase for obstruction of justice. Id. Movant did
Grounds of the Motion
asserts four grounds in support of her motion, all
complaining of ineffective assistance of counsel.
1. First, she says her attorney failed to object to her being
charged with actual methamphetamine. Id. at
PageID 3. Second, her attorney failed to make
objections to the PSR that movant wanted him to make.
Id. at PageID 4. Third, her attorney failed to have
movant's pretrial time count towards her incarceration.
Id. at PageID 5. And, fourth, her attorney failed to
object to the incorrect number of criminal history points.
Id. at PageID 7.
Standards of Review
28 U.S.C. § 2255
conviction and exhaustion, or waiver, of any right to appeal,
courts are entitled to presume that a defendant stands fairly
and finally convicted. United States v. Frady, 456
U.S. 152, 164-165 (1982}; United States v. Shaid,
937 F.2d 228, 231-32 (5th Cir. 1991). A defendant can
challenge his conviction or sentence after it is presumed
final on issues of constitutional or jurisdictional magnitude
only, and may not raise an issue for the first time on
collateral review without showing both "cause" for
his procedural default and "actual prejudice"
resulting from the errors. Shaid, 937 F.2d at 232.
2255 does not offer recourse to all who suffer trial errors.
It is reserved for transgressions of constitutional rights
and other narrow injuries that could not have been raised on
direct appeal and would, if condoned, result in a complete
miscarriage of justice. United States v. Capua, 656
F.2d 1033, 1037 (5th Cir. Unit A Sept. 1981). In other words,
a writ of habeas corpus will not be allowed to do service for
an appeal. Davis v. United States, 417 U.S. 333, 345
(1974); United States v. Placente, 81 F.3d 555, 558
(5th Cir. 1996). Further, if issues "are raised and
considered on direct appeal, a defendant is thereafter
precluded from urging the same issues in a later collateral
attack." Moore v. United States, 598 F.2d 439,
441 (5th Cir. 1979) (citing Buckelew v. United
States, 575 F.2d 515, 517-18 (5th Cir. 1978)).