Melanson v. United States

          MEMORANDUM OPINION AND ORDER

          JOHN MCBRYDE UNITED STATES DISTRICT JUDGE.

         Came on for consideration the motion of Oscar Melanson ("movant") under 28 U.S.C. § 2255 to vacate, set aside, or correct sentence. After having considered the motion, the memorandum in support, the government's response, and pertinent parts of the record in No. 4:16-CR-021-A, styled "United States of America v. Cleto Tarin, et al.," the court has concluded that the motion should be denied.

         I. Background

         Information contained in the record of the underlying criminal case discloses the following:

         On February 10, 2016, movant, along with numerous others, was named in a two-count indictment charging him in Count Two 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. § 846. CR Doc.^[1] 37. On March 25, 2016, movant appeared before the court with the intent to enter a plea of guilty to the offense charged without benefit of a plea agreement. Movant and his 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. 219. Under oath, movant stated that no one had made any promise or assurance of any kind to induce him to plead guilty. Further, movant stated his 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 his guilty plea; movant was satisfied with his counsel and had no complaints regarding his 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. 663 .

         The probation officer prepared a PSR reflecting that movant's base offense level was 34. CR Doc. 297, ¶ 40. Movant received a two-level enhancement for possession of a firearm, id. ¶ 41, and a two-level enhancement for maintaining a premises for manufacturing or distributing a controlled substance, id. ¶ 42. He received a two-level and a one-level adjustment for acceptance of responsibility. Id., ¶¶ 48, 49. Based on a total offense level of 35 and a criminal history category of VI, movant's guideline range was 292 to 365 months. Id. ¶ 118. Because the statutorily-authorized maximum sentence was 20 years, the guideline range became 240 months. Id. Movant filed objections to the PSR. CR Doc. 637. He also filed a motion for sentence variance, arguing that he should not be held responsible for the gun possessed by a co-conspirator, and that he should not be responsible for maintaining a drug premises as he had no possessory interest in the residence where he stayed with his co-conspirator girlfriend. CR Doc. 338. The probation officer prepared an addendum to the PSR. CR Doc. 372.

         On July 21, 2016, the court conducted a hearing to consider the calculation of drug quantities for which movant and others should be held responsible. CR Doc. 469; CR Doc. 516. The probation officer filed a second addendum to the PSR reflecting that further drug testing did not result in any change to movant's guideline computations. CR Doc. 581.

         On October 7, 2016, movant was sentenced to a term of imprisonment of 240 months. CR Doc. 633. The court heard evidence regarding the objection to the lack of reduction for playing a minor role and regarding and the request for variance, finding them to be without merit. CR Doc. 664. The court noted that movant should be denied acceptance of responsibility and should receive an enhancement for obstruction of justice based on his false testimony at sentencing, but it would not make any difference since his sentence was subject to the statutory cap of 240 months. Id. at 38-39.

         Movant appealed. CR Doc. 641. His attorney filed an Anders^[2] brief and the appeal was dismissed as frivolous. United States v. Melanson, 708 P. App'x 213 (5th Cir. 2018).

         II . Ground of the Motion

         Movant asserts one ground in support of his motion. He says that his plea is invalid as a result of ineffective assistance of counsel. Doc.^[3] 1 at PageID^[4] 4. In his supporting memorandum, movant purports to assert additional grounds of ineffective assistance of counsel for failure to make certain objections to the PSR. Doc. 2.

         III. Standards of Review

         A. 28 U.S.C. § 2255

         After 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 ...