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Dickerson v. United States

United States District Court, W.D. Missouri, Western Division

May 23, 2018

JON DICKERSON, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER DENYING MOTION TO VACATE, SET ASIDE, OR CORRECT JUDGMENT

          GREG KAYS, CHIEF JUDGE

         This case arises out of Movant Jon Dickerson's (“Movant”) convictions for conspiracy to cause the unlawful transportation in interstate commerce of stolen goods and four other counts related to his role in stealing various tractor-trailer trucks and their contents. Pending before the Court is Movant's “Motion Under 28 U.S.C. § 2255 to Vacate and Set Aside Conviction and Sentence or for New Sentencing” (Doc. 1).

         Building on the holdings in Lafler v. Cooper, 566 U.S. 156 (2012) and Missouri v. Frye, 566 U.S. 133 (2012), Movant argues he received ineffective assistance of counsel because his attorney failed to advise him that if he rejected the Government's plea offer and was convicted after trial, he likely would face a much higher sentence under the sentencing guidelines. Movant contends counsel did not review the guidelines with him or explain how they worked, and that but for these failures, he would have accepted the plea offer and received a lesser prison sentence than the 188 months the Court imposed.

         Because the record conclusively refutes Movant's allegations, the Court DENIES the motion without a hearing. The Court also declines to issue a certificate of appealability.

         Relevant Factual Background and Procedural History

         Pretrial

         On January 9, 2013, the magistrate judge[1] arraigning Movant informed him that the maximum punishment he faced was five years on Count One plus ten years on each of the other four counts. Min. Entry (Doc. 53 in 4:12-CR-0386).[2]

         On August 9, 2013, counsel for the Government sent Movant's trial counsel a letter extending a formal plea offer. The letter stated:

My assessment of the current conspiracy case in which he is charged has a loss of $1.08 million dollars, which coupled with ten or more victims, and a scheme to steal vehicles, triggers a potential sentencing range of 97-120 months if the matter proceeds to trial. However, based upon the specific evidence against your client, I am able to offer your client a plea to a range [of] 37-46 months. This offer is based upon a plea to a loss of $497, 633.78 as explained in the attached chart. Further, your client would have joint and several liability for restitution of this dollar figure and an asset forfeiture money judgment will also be included.

Plea Offer Letter at 1 (Doc. 1-3). Footnote 1 of the letter contains the Government's estimated sentencing guidelines range of what Defendant faced without a plea deal, which was as follows.

2(B)1.1(a)(2) base offense level of 6; plus 16 for more than $1 million 2B1.1(b)(1)(I); plus 2 for ten or more victims 2B1(b)(2)(A); plus 2 for an organized scheme to steal vehicles 2B1.1(b)(13); plus 4 for leader/organizer of 5 or more 3B1.1(a); for a total of 30; without acceptance gives a sentence of 97-120 months. This assumes Criminal History Category of 1.

Id. Footnote 2 explained how a plea deal charging a lower amount of loss would yield a sentence in the 37-46 months range.

2(B)1.1(a)(2) base offense level of 6; plus 14 for more than $400, 000 2B1.1(1)(G); plus 2 for an organized scheme to steal vehicles 2B1.1(b)(13); plus 2 for leader/organizer 3B1.1(c); minus 3 for acceptance for a total of 21; gives a sentence of 37-46 months. This assumes Criminal History Category of 1.

Id. The letter included a chart explaining in detail which stolen or recovered vehicles would be included in determining the loss and the restitution amount in the proposed plea. Id. at 2. The Government also extended the offer several times so counsel had ample time to discuss it with his client.

         In an affidavit submitted by the Government, trial counsel explained how he conveyed the offer to Movant, and Movant's response to it.

4. In August of 2013 I received a plea offer from Mr. Coonrod which I presented in person as well as over the phone to Dirk.[3]Dirk summarily rejected the offer and we discussed it. I explained to Dirk how the sentencing guidelines were now advisory, that the judge was duly bound to render a reasonable sentence[, ] however the courts tend to follow the guidelines. We discussed the base level of the offense and how the amount of the loss impacted the offense level. We discussed the adjustments to the base level based upon role in the offense, criminal history all as set out in the guidelines. During the meeting that I believe occurred in my office on August 15, 2013 we reviewed the offer in detail and I advised my client that 1) the evidence if believed was sufficient to convict him 2) if convicted he was facing substantially more prison time than if he accepted the terms 3) the reduction of the sentence for acceptance of responsibility and 4) that I had been advised early on that the USA was not interested in his providing substantial assistance. He was not interested in the plea nor would he authorize me to enter into more extensive negotiations with AUSA Coonrod. I brought up the subject of a plea and the potential consequences every time we met before trial, despite Dirk's insistence that he was innocent. During the course of the trial I ask[ed] him if he wanted me to see about working out a plea but he remained uninterested.

White Affidavit ¶4 (Doc. 5-1). Trial counsel also states that

[a]t no time did I ever tell Dirk that if he went to trial and was convicted that he would receive the sentence in the plea offer but to the contrary he could, if convicted, receive a sentence that he would not outlive. Dirk was sure that he was innocent and that no one would believe the damaging testimony of J. Fears and John Strauss.

Id. ¶6. The affidavit also states

During the preparation I was able to meet with Dirk in person at least every six weeks, we also consulted by phone. During our meetings and phone conversations I am confident that we communicated effectively. I do not keep notes of my clients meetings unless I think that the client is not following what ...

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