United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
JEAN C. HAMILTON, District Judge.
This matter is before the Court on Movant James Whitiker's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody. (ECF No. 1). The Motion has been fully briefed and is ready for disposition.
On December 7, 2011, Whitiker pled guilty to counts 1, 3, 4, and 5 of a six-count indictment. (Plea Agreement, Case No. 11-cr-352, ECF No. 136, at 2-3). Count 1 charged conspiracy to commit the crimes of access device fraud, bank fraud, and social security fraud ("conspiracy to defraud"). Id. at 2. Counts 3 and 5 were separate charges for possession or use of another person's identification in relation to the felony offenses of bank fraud and access device fraud ("aggravated identity theft"). Id. at 3. Count 4 charged intentional defrauding of several banks with assets insured by the United States government ("bank fraud"). Id. Whitiker was sentenced to a total term of imprisonment of 153 months. (Judgment, Case No. 11-cr-352, ECF No. 270, at 3). This sentence consisted of 60 months for Count 1, 105 months for Count 4, and 24 months for each of Counts 3 and 5. Id. The terms for Counts 1 and 4 were ordered to run concurrently. Id. The term for Count 3 was to run consecutively to the terms for Counts 1 and 4. Id. The term for Count 5 was to run consecutively to the terms for Counts 1, 3, and 4. Id.
Whitiker timely filed this Motion on August 16, 2012 pursuant to 28 U.S.C. § 2255. (ECF No. 1). In his Motion, Whitiker seeks to have his sentence reduced based on claims for ineffective assistance of counsel.
§ 2255 STANDARD
Under § 2255, a federal prisoner may seek relief on the ground that "the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack...." 28 U.S.C. § 2255(a). A reviewing court must hold an evidentiary hearing to consider claims in a § 2255 motion "[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.'" Shaw v. United States, 24 F.3d 1040, 1043 (8th Cir. 1994) (alteration in original) (quoting 28 U.S.C. § 2255(b)).
Whitiker raises four grounds for relief: (1) that his "counsel was ineffective for failure to properly object to the incorrect calculation of [Whitiker's] Criminal History" in the Presentence Investigation Report ("PSR"); (2) that his counsel was ineffective for failing to object to the addition of two offense levels "for trafficking of an unauthorized access device when the enhancement of Aggravated Identity Theft was to be applied[;]" (3) that his "counsel was ineffective for failing to object to the imposition of consecutive sentences for the enhancement for Aggravated Identity Theft[;]" and (4) that his "counsel was ineffective for failing to properly argue that [Whitiker] was responsible for more than 10 victims but less than 50 victims." (Motion Supplement, ECF No. 1-1, at 4-5).
The Government concedes that Whitiker is entitled to relief on Ground 2 of his Motion. (Government Response, ECF No. 5, at 10-11). In Ground 2, Whitiker contends his counsel was ineffective for failing to notice that a two-level enhancement for trafficking of an unauthorized access device was improperly added to the base offense level for Counts 1 and 4. (Motion Supplement at 13-14). The Government agrees that, under United States v. Lyons, 556 F.3d 703 (8th Cir. 2009), this two-level enhancement was improper. (Government Response at 10-11). Without the two-level enhancement, the guideline range for Counts 1 and 4 would have been 70-87 months instead of the 84-105 month range on which the Court based Whitiker's sentence. The Government therefore requests, as does Whitiker, that the Court vacate the original sentence and re-sentence Whitiker based on the appropriate guideline range. The Court agrees that this is an appropriate course of action, and an order will be entered granting the parties' request. The rest of Whitiker's grounds for relief, however, are in dispute, and it is necessary to determine whether any presents a basis for further reduction of his sentence.
A. Ground 1
In Ground 1, Whitiker claims his counsel was ineffective for failing to raise two objections to the Criminal History level calculated in the PSR. (Motion Supplement at 7-13). The first objection Whitiker contends his counsel should have raised relates to three points that were added for each of the convictions listed in paragraphs 60 and 63 of the PSR even though Whitiker was only 16 years old at the time of those convictions. Id. 8. Whitiker contends that, in accordance with United States Sentencing Guideline ("U.S.S.G.") § 4A1.2(d), neither of these offenses should have been included, resulting in the erroneous addition of six points to his Criminal History. Id. at 8-10. The second missed objection relates to three points Whitiker received for each of the offenses listed in paragraphs 62 and 64 even though he was sentenced for those offenses on the same day and there was no intervening arrest. Id. at 10. Whitiker contends that, pursuant to U.S.S.G. § 4A1.2(a)(2), those offenses should have counted as a single offense and therefore added only three points to his Criminal History instead of six. Id. at 11. Whitiker maintains that both of these missed objections prejudiced him because they resulted in a higher sentence than he otherwise would have received.
In order to prevail on an ineffective assistance of counsel claim, a claimant must show that his attorney's performance was "deficient, " and "that the deficient performance prejudiced the defense." Strickland v. Washington, 466 U.S. 668, 687 (1984). To demonstrate counsel's deficiency, the claimant must prove that, "in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance." Id. at 690. To demonstrate prejudice, the claimant must show "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. The Supreme Court has held that an increased sentence resulting from an error in the application of the Sentencing Guidelines satisfies Strickland 's prejudice prong. Glover v. United States, 531 U.S. 198 (2001). Thus, Whitiker will be entitled to relief if he can show that his attorney's deficient performance caused a misapplication of the Sentencing Guidelines.
There are two problems with the contentions Whitiker presents in Ground 1. The first is that Whitiker's counsel actually did object to the addition of the six Criminal History points in paragraphs 60 and 63. Counsel objected first by filing a motion prior to the issuance of the final PSR. (Objections to PSR, Case No. 11-cr-352, ECF No. 185 ("The Presentence Report incorrectly states that James Whitiker was convicted as an adult in each of these matters.")). She objected again at a hearing prior to sentencing, during which the issue was discussed in detail. (Pre-Sentence Hearing Tr., Case No. ...