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United States v. Linton

United States District Court, S.D. Texas, Corpus Christi Division

May 7, 2019

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
CHRISTOPHER RANDOLPH LINTON, Defendant/Movant.

          MEMORANDUM OPINION & ORDER

          JOHN D. RAINEY, SENIOR U.S. DISTRICT JUDGE

         Defendant/Movant Christopher Randolph Linton filed a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. D.E. 22.[1] Pending before the Court is the United States of America's (the “Government”) Motion for Judgment on the Record (D.E. 30), to which Movant did not respond.

         I. BACKGROUND

         In May 2017, Movant was stopped at the Sarita, Texas, Border Patrol checkpoint for an immigration inspection. He appeared nervous, and agents referred him to secondary inspection. The liquid in the fuel tank of the Ford F-250 truck Movant was driving tested positive for methamphetamine, and he was arrested. Drug Enforcement Administration (DEA) agents processed the liquid methamphetamine mixture seized from the fuel tank of Movant's vehicle, and the Presentence Investigation Report summarized the tests as follows:

There were 16 representative samples taken from the total amount of fuel and liquid methamphetamine in the gas tank. The agent advised that samples 1A through 1G contained fuel only. Samples 1H through 1P contain methamphetamine and are representative of approximately 28 gallons, weighing 186.6 pounds (82.82 kilograms).

PSR, D.E. 14 ¶ 7.

         Movant was charged with conspiracy to possess with intent to distribute more than 500 grams of a mixture or substance containing a detectable amount of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846 (Count One), and possession with intent to distribute a more than 500 grams of a mixture or substance containing a detectable amount of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A) (Count Two). In June 2017, Movant plead guilty to Count One pursuant to a written plea agreement. At the rearraignment hearing, the Government moved to amend the Indictment to reduce the amount of methamphetamine alleged in Count One from 500 grams to 50 grams, and the Court granted the motion. In exchange for Movant's guilty plea, the Government agreed to dismiss Count Two and recommend that he receive maximum credit for acceptance of responsibility and a sentence within the applicable guideline range. In return, Movant waived his right to appeal or file a motion under 28 U.S.C. § 2255, except to raise a claim of ineffective assistance of counsel.

         The PSR assigned Movant a base offense level of 38 based on the 82.82 kilograms of methamphetamine for which he was held accountable. Two levels were added under U.S.S.G. § 2D1.1(b)(5) because the offense involved the importation of methamphetamine from Mexico. Movant was given a three-level adjustment for acceptance of responsibility. The resulting advisory Guideline range for Level 37, Criminal History Category IV, was 292-365 months' imprisonment.

         Movant's counsel filed written objections to the PSR. D.E. 13. He argued that Movant's base offense level was incorrect because: (1) it included the entire mixture instead of just the amount of pure methamphetamine within the mixture; (2) the testing method was inaccurate because the samples tested could have been taken from a portion of the fuel tank where the methamphetamine was more concentrated; and (3) the weight of the containers should have been deducted. Counsel also requested a reduction based on Movant's minor role in the offense. Both the Probation Officer and the Government responded, explaining that, “because the purity of the methamphetamine seized was not available, the guidelines are based on a mixture or substance containing methamphetamine.” D.E. 15, p. 1; D.E. 17, p. 2. The Government also argued that Movant was not entitled to a reduction for his role in the offense.

         At sentencing, the Court confirmed that Movant had reviewed with his counsel both the PSR and counsel's written objections. Defense counsel then withdrew the drug quantity objection, and Movant agreed. The Court overruled the minor-role objection and adopted the PSR without change, including the advisory Guideline range of 292-365 months. After noting that Movant had waived his right to appeal, the Court departed downward and sentenced Movant to a below-Guideline sentence of 240 months' imprisonment, 5 years' supervised release, and a $100 special assessment.

         Judgment was entered October 19, 2017. Movant's conviction became final on November 2, 2017, the last day on which he could have filed a notice of appeal. He filed the current motion under 28 U.S.C. § 2255 on September 20, 2018. It is timely.

         II. MOVANT'S ALLEGATIONS

         Movant raises two related claims alleging ineffective assistance of counsel:

         A. Counsel failed to hire an expert to test the methamphetamine mixture found in the ...


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