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Veatch v. United States

United States District Court, N.D. Texas, Fort Worth Division

June 11, 2019

MELISSA VEATCH, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION AND ORDER

          JOHN MCBRYDE, UNITED STATES DISTRICTS JUDGE.

         Came on for consideration the motion of Melissa Veatch ("movant") under 28 U.S.C. § 2255 to vacate, set aside, or correct sentence. After having considered the motion, its supporting memorandum, the government's response, the reply, and pertinent parts of the record in No. 4:16-CR-132-A, styled "United States of America v. Charles Ben Bounds, 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 May 18, 2016, movant was named in a superseding indictment charging her with conspiracy to possess with intent to distribute 50 grams or more of a mixture and substance containing a detectable amount of methamphetamine, in violation of 21 U.S.C. § 84 6. CR Doc.[1] 215. On June 22, 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. CR Doc. 314. 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. 315. 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 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. 1287.

         The probation officer prepared a PSR reflecting that movant's base offense level was 38. CR Doc. 710, ¶ 29. She received a two-level enhancement for importation, id. ¶ 30, a two-level enhancement for maintaining a premises for manufacturing or distributing a controlled substance, id. ¶ 31, and a three-level enhancement for being a manager or supervisor of criminal activity involving five or more participants, id. ¶ 33. She received a two-level and a one-level downward adjustment for acceptance of responsibility. Id. ¶¶ 37-38. Based on a total offense level of 42 and a criminal history category of VI, movant's guideline range was 3 60 months to life. Id. ¶ 117. The statutorily-authorized maximum sentence was 4 0 years; therefore, the guideline imprisonment range became 3 60 months to 480 months. Id.

         Movant filed objections to the PSR. CR Doc. 1380. The probation officer prepared an addendum to the PSR. CR Doc. 818. On November 21, 2016, the court signed an order tentatively concluding that movant's objections were without merit and cautioning that there was a question as to whether she should receive any reduction for acceptance of responsibility. CR Doc. 823 .

         On November 23, 2016, movant appeared for sentencing. CR Doc. 84 0. She withdrew her objections to the PSR except for an objection as to paragraph 11, regarding the amount of methamphetamine for which movant should be held responsible. CR Doc. 1288 at 5-6. The government presented the testimony of Special Agent McCurdy, id. at 10-18, and the court overruled movant's objection. Id. at 18. The court questioned whether movant should be entitled to acceptance of responsibility, but noted that it would not make any difference in her sentence. Id. at 18-19. She was sentenced to a term of imprisonment of 400 months. CR Doc. 84 8. Movant appealed and her sentence was affirmed. United States v. Veatch, 705 Fed.Appx. 338 (5th Cir. 2017). Her petition for writ of certiorari was denied. Veatch v. United States, 138 S.Ct. 1709 (2018).

         II.

         Grounds of the Motion

         Movant asserts four grounds in support of her motion, all alleging ineffective assistance of counsel. Doc.[2] 1. She says her counsel was ineffective (1) for failing to persist in challenging the drug quantity calculation in the PSR, id. at PageID[3] 4, (2) for failing to persist in objecting to the importation enhancement, id. at PageID 6, (3) for failing to persist in objecting to the drug premises enhancement, id. at PageID 9, and (4) for failing to conduct an adequate investigation before withdrawing objections to the PSR, id. at PageID 11.

         III.

         Applicable Legal Standards A. 28 ...


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