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United States v. Howard

United States District Court, W.D. Kentucky, Louisville

January 28, 2019

UNITED STATES OF AMERICA PLAINTIFF
v.
Jason HOWARD DEFENDANT

          MEMORANDUM OPINION

          Charles R. Simpson III, United States District Court Senior Judge

         I. Introduction

         This case is before the Court on Jason Howard's motion to vacate, set aside, or correct his sentence in accordance with 28 U.S.C. § 2255, DN 1085, the Findings, Conclusions, and Recommendation of Magistrate Judge Lanny King on that motion, DN 1140, and objections filed thereto, DN 1144. In his motion, Howard argues his counsel was ineffective because counsel did not investigate or argue how Howard's post-offense rehabilitation should be considered by the Court. Finding that Howard's counsel and the Court were permitted to address only limited issues on resentencing (and thus counsel was not ineffective for failing to raise others), the Court will deny the motion and accept and adopt the report of the magistrate.

         II. Factual Background and Procedural History

         From December 2008 to May 2010, Howard was involved with the McCarthy drug ring in Louisville, Kentucky. In that scheme, hundreds of kilograms of cocaine were imported and distributed into the community. After an investigation, Howard was arrested and his home was searched. A grand jury returned a superseding indictment that charged Howard with three counts: (1) conspiring to possess cocaine with the intent to distribute in violation of 21 U.S.C. § 846; (2) possessing cocaine with the intent to distribute in violation of 18 U.S.C. § 841(a)(1); and (3) money laundering in violation of 18 U.S.C. § 1956(a)(1). DN 156. In August 2011, Howard pleaded guilty to all three counts. DN 404.

         At sentencing, this Court found Howard's total offense level was 43 and criminal history was III. As a result, he faced a Guidelines range with a minimum of life in prison. Believing a life sentence to be inappropriately harsh for Howard's crimes, this Court varied downward and sentenced Howard to 360 months' imprisonment. DN 572 at 114; DN 566. Howard appealed. The Sixth Circuit affirmed in part, reversed in part, and remanded for resentencing. United States v. Howard, 570 Fed.Appx. 478, 479 (6th Cir. 2014). Specifically, the Sixth Circuit found that this Court had erred in refusing to grant a reduction for acceptance of responsibility under U.S.S.G. § 3E1.1(a). Id. at 483-84.

         For resentencing, the parties and this Court agreed that Howard should receive the three-point reduction for acceptance of responsibility and an additional two-point reduction under Amendment 782 to the Sentencing Guidelines. This resulted in a new total offense level of 38 with a criminal history of III and a resulting Guidelines range of 292 to 365 months' imprisonment. This Court then sentenced Howard to 292 months' imprisonment followed by five years of supervised release. DN 982. Howard appealed the new sentence to the Sixth Circuit, which affirmed. United States v. Howard, 645 Fed.Appx. 459, 461 (6th Cir. 2016).

         Shortly thereafter, Howard filed his motion to vacate, set aside, or correct his sentence in accordance with 28 U.S.C. § 2255, DN 1085, followed by a memorandum in support, DN 1089. The United States responded. DN 1097. Howard replied. DN 1101. The matter was referred to Magistrate Judge Colin Lindsay and subsequently reassigned to Magistrate Judge Lanny King. DNs 1088, 1139. The magistrate filed his Findings, Conclusions, and Recommendation, recommending that the § 2255 motion be denied. DN 1140. Howard filed objections. DN 1144.

         III. Legal Standard

         The Court makes a de novo determination of the proposed findings or recommendations of the magistrate to which the parties have objected. 28 U.S.C. § 636(b)(1); F. R. Crim. P. 59; F. R. Civ. P. 72. To the extent that no objection is filed, the arguments are waived. Thomas v. Arn, 728 F.2d 813, 815 (6th Cir. 1984), aff'd, 474 U.S. 140, 147-48 (1985).

         IV. Discussion

         A federal prisoner “claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, . . . may move the court which imposed the sentence to vacate, set aside or correct the sentence.” 28 U.S.C. § 2255(a). Howard argues that he is entitled to relief under § 2255 because his right to effective assistance of counsel at resentencing was violated when his counsel failed to investigate and argue Howard's entitlement to a downward sentence variance based on post-offense rehabilitative efforts.

         A. Ineffective Assistance of Counsel

         The basic contours of ineffective assistance of counsel claims are well-defined. To prevail on a claim that he was denied effective assistance, Howard must meet the two-part test established in Strickland v. Washington, 466 U.S. 668 (1984). Specifically, he must demonstrate: (1) counsel made errors so serious and deficient compared to prevailing professional norms that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment; and (2) counsel's deficient performance prejudiced the defense. Id. at 687. The court must be “highly deferential” of counsel's performance and must make every effort to “eliminate the distorting effects of hindsight.” Id. at 689. Therefore, the court must “indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” Id. For the second prong, a ...


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