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United States v. Wingate

United States District Court, E.D. Kentucky, Central Division, Lexington

March 14, 2018

JEFFREY S. WINGATE, Movant/Defendant.



         This matter is pending for consideration of Movant/Defendant Jeffrey Wingate's motion to vacate, set aside or correct his sentence under 28 U.S.C. § 2255. [Record No. 447] The motion was referred to United States Magistrate Judge Edward B. Atkins for review and issuance of a Report and Recommendation (“R&R”) pursuant to 28 U.S.C. § 636(b)(1');">1)(B). Magistrate Judge Atkins issued a R&R on January 25, 201');">18, recommending that the motion be denied. [Record No. 474] Wingate filed his amended objections to the R&R on February 20, 201');">18.[1');">1" name= "FN1');">1" id="FN1');">1">1');">1] [Record No. 480]

         Although this Court must make a de novo determination of those portions of the Magistrate Judge's recommendations to which objections are made, 28 U.S.C. § 636(b)(1');">1)(C), “[i]t does not appear that Congress intended to require district court review of a magistrate's factual or legal conclusions, under a de novo or any other standard, when neither party objects to those findings.” Thomas v. Arn, 1');">140');">474 U.S. 1');">140, 1');">150 (1');">1985). Nevertheless, the Court has examined the record and, having conducted a de novo review of the matter, agrees with the Magistrate Judge.


         Law enforcement officers conducted a traffic stop on June 1');">12, 201');">14, and found Defendant Wingate in possession of three ounces of heroin and approximately 1');">1, 1');">100 Oxycodone 30 milligram pills. [Record No. 296] They subsequently found 2, 500 Oxycodone 30 milligram pills and a .38 caliber revolver in a pool house on Wingate's property. The officers also found firearms and approximately $200, 000 inside the main residence. [Id.] Wingate was arrested and admitted to conspiring to distribute Oxycodone pills and heroin during a Mirandized interview. [Id.] He was charged with one count of conspiring to distribute heroin, three counts of possessing with intent to distribute heroin and Oxycodone, and one count of being a felon in possession of a firearm. [Record No. 9] Because Wingate “had already confessed to his involvement with the drugs, ” and “stated [that] it was his desire to cooperate with law enforcement to possibly reduce his sentence, ” Wingate's attorney recommended entering into a plea agreement. [Record No. 466-1');">1, ¶¶ 4-5]

         Wingate pleaded guilty to one count of possessing Oxycodone pills with intent to distribute in violation of 21');">1 U.S.C. § 841');">1(a)(1');">1). [Record No. 296] Wingate admitted in the plea agreement that he conspired with others to distribute Oxycodone and heroin by obtaining the drugs from an out-of-state supplier and then selling them to his co-conspirators, who in turn sold them to customers. [Id.] The plea agreement also recommended the following guidelines calculations: a base offense level of 32 under United States Sentencing Guideline (“U.S.S.G.”) § 2D1');">1.1');">1(c)(4), based on the marijuana equivalency for the amount of Oxycodone pills and heroin attributable to Wingate; a two-level offense level increase under U.S.S.G. § 2D1');">1.1');">1(b)(1');">1), based on Wingate's possession of a dangerous weapon; a four-level offense level increase under U.S.S.G. § 3B1');">1.1');">1(a), because Wingate was an organizer or leader of criminal activity that involved five or more participants or was otherwise extensive; and a two or three-level offense level decrease under U.S.S.G. § 3E1');">1.1');">1, based on Wingate's acceptance of responsibility. [Id.]

         Consistent with the recommendations in the plea agreement, the Presentence Investigation Report (“PSR”) prepared in advance of Wingate's sentencing hearing provided for a base offense level of 32 based on the marijuana equivalency for the amount of Oxycodone pills and heroin attributable to Wingate. It also recommended a two-level increase for possession of a dangerous weapon, a four-level increase for being the organizer or leader of criminal activity involving five or more participants, and a three-level reduction for acceptance of responsibility. [Record No. 305, ¶¶ 50-58] The resulting total offense level was 35. [Id. ¶ 58] When combined with Wingate's criminal history (Category I), this produced a guideline imprisonment range of 1');">168 to 21');">10 months. [Id. ¶ 99]

         The parties did not object to the PSR, and the Court adopted its findings and guidelines calculations at the sentencing hearing. [Record No. 338, p. 3] The Court also noted that the enhancements the PSR applied were well supported. [Id. at 8] A sentence in the middle of the guideline range would have been 1');">189 months imprisonment. [Id.] However, the Court sustained the government's motion for a 20 percent reduction, and reduced the sentence by 39 months to 1');">150 months imprisonment. [Id. at 1');">18-1');">19, 27-28]

         Wingate now moves to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. [Record No. 447] He makes the following three arguments in support of his motion: (i) his counsel was conflicted due to prior representation; (ii) his counsel's ineffective assistance and coercion prevented him from entering into a knowing and voluntary plea agreement; and (iii) his counsel's many mistakes resulted in cumulative error. [Id.] For the reasons that follow, and those stated by the Magistrate Judge, the Court finds each argument to be unpersuasive. Accordingly, Wingate's § 2255 motion will be denied.


         Wingate's first argument is that his counsel was unconstitutionally conflicted based on (i) his prior representation of government informant David Knell during a separate action in 201');">13, and (ii) legal advice he allegedly gave to Morgan Culberson (Wingate's son-in-law) during the criminal investigation. [Record No. 447-1');">1, p. 3, 5-6] Wingate also contends that attorney Brandon Marshall, who assisted him at sentencing, was unconstitutionally conflicted based on his representation of Culberson during the criminal investigation. [Id. at 7] In particular, Wingate alleges that his attorney and Marshall told Culberson to deny possession of the firearm found in the pool house and instructed Wingate to admit possession of that same gun. [Id. at 5-8]

         “[T]o prevail on a claim of ineffective assistance of counsel as a result of a conflict of interest, a petitioner who has entered a guilty plea must establish: ‘(1');">1) that there was an actual conflict of interest; and (2) that the conflict adversely affected the voluntary nature of the guilty plea entered by the defendants.'” Moss v. United States, 323 F.3d 445, 467 (6th Cir. 2003) (quoting Thomas v. Foltz, 1');">18 F.2d 476');">81');">18 F.2d 476, 480 (6th Cir. 1');">1987)). To show an actual conflict of interest, a defendant “must make a factual showing of inconsistent interests and must demonstrate that the attorney made a choice between possible alternative courses of action, such as eliciting (or failing to elicit) evidence helpful to one client but harmful to the other.” Thomas, 81');">18 F.2d at 481');">1 (quotation marks and citations omitted). To show an adverse interest, a defendant must demonstrate that “counsel was influenced in his basic strategic decisions by the interests of the former client as where the conflict prevents an attorney from arguing the relative involvement and culpability of his clients in order to minimize the culpability of one by emphasizing the other.” Id. at 466. “Joint, or dual, representation occurs where a single attorney represents two or more co-defendants in the same proceeding.” Id. at 455 (emphasis added). “Successive representation occurs where defense counsel has previously represented a co-defendant or trial witness.” Id. at 459 (emphasis added).

         Knell and Culberson were not co-defendants or witnesses in this action. Wingate's attorney (McCoy) did not represent Culberson, and Wingate has not shown that McCoy's prior representation of Knell several years before the instant action affected any strategic decisions. Further, Wingate's claim that his attorneys pressured him to admit possession of the gun so they could contend that Culberson did not possess the gun fails because possession is not an exclusive concept. In other words, whether or not Culberson possessed the gun would have no conclusive effect on whether or not Wingate possessed the gun. See United States v. Chesney, 86 F.3d 564, 573 (6th Cir. 1');">1996) (“[T]wo or more persons may share possession of an item.”). As a result, ...

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