United States District Court, E.D. Kentucky, Northern Division, Covington
ORDER ADOPTING REPORT AND RECOMMENDATION
L. Bunning United States District Judge.
matter is before the Court on Defendant Joshua L. Abney's
pro se Motion to Vacate his sentence under 28 U.S.C. §
2255. (Doc. # 200). Consistent with local practice, this
matter was referred to United States Magistrate Judge Hanly
A. Ingram for the purpose of reviewing the Motion and
preparing a Report and Recommendation
(“R&R”). On October 25, 2018, Judge Ingram
issued his R&R, wherein he recommends that
Defendant's Motion be denied. (Doc. # 226). Defendant
having filed Objections to the R&R (Doc. # 228), and the
time for filing a response having expired, the R&R is now
ripe for the Court's review. For the reasons set forth
herein, Defendant's Objections (Doc. # 228) are overruled
and the R&R (Doc. # 226) is adopted as the findings of
fact and conclusions of law of the Court.
FACTUAL AND PROCEDURAL BACKGROUND
August 11, 2016, Defendant Joshua Abney was indicted on
multiple counts relating to his involvement in a conspiracy
to distribute methamphetamine and oxycodone. (Doc. # 1).
Defendant Abney later pled guilty to conspiring to distribute
fifty or more grams of methamphetamine. (Docs. # 79 and 81).
In return, the United States agreed to dismiss two additional
counts: one for possessing with intent to distribute “a
mixture or substance containing five grams or more of actual
methamphetamine” and one for possessing oxycodone with
the intent to distribute. (Doc. # 81 at 1).
plea agreement, Defendant admitted that he “conspired
with others to distribute controlled substances, including
more than 50 grams of actual methamphetamine.”
Id. at 2. Abney's conspiracy involved packages
of meth and other drugs that were sent from California to
multiple addresses in northern Kentucky. Id. at 3.
Defendant also admitted in his plea agreement that “the
relevant conduct of the conspiracy reasonably attributable to
him includes between 150 and 500 grams of actual
methamphetamine, as well as quantities of oxycodone and
Xanax. Id. The agreement stipulated that the base
offense level under the sentencing guidelines would be 32
“based on the reasonably foreseeable amount of
substances in this case.” Id. at 4. Finally,
by pleading guilty, Defendant waived his right to appeal his
conviction and sentence and, with the exception of
ineffective assistance of counsel (“IAC”), also
waived his right to collaterally attack the guilty plea,
conviction, and sentence. Id. at 4-5.
27, 2017, Defendant was sentenced to 210 months in prison,
followed by five years of supervised release. (Doc. # 180).
Abney did not appeal his sentence, which was at the low end
of the guideline range of 210-262 months. (Doc. # 207 at 3,
7, 2018, Defendant filed a Motion to Vacate his sentence
under 28 U.S.C. § 2255. (Doc. # 200). In his Memorandum
supporting his Motion to Vacate, Defendant argued that his
trial counsel was ineffective for failing to object to an
incorrect criminal history score and for allowing him
“to accept responsibility for far more actual
methamphetamine than supported by the evidence.”
Id. at 3. He also argued that his counsel was
ineffective for failing to inform him that he could take an
open plea, “thereby preserving his appeal rights and
the opportunity to dispute sentencing factors.” (Doc. #
208 at 2).
further argued that his criminal history score was
incorrectly calculated. (Doc. # 200 at 4) and that there was
insufficient evidence to support an enhanced penalty based on
50 or more grams of methamphetamine being involved.
Id. at 5. Defendant asserts that he can raise these
last two issues notwithstanding the collateral-attack waiver
in his plea agreement because his plea was not knowing and
voluntary. (Doc. # 208 at 1, 4).
R&R, Judge Ingram ruled on these last two issues first.
He found that the district court had conducted a proper plea
colloquy under Rule 11 of the Federal Rules of Criminal
Procedure and that Defendant's plea was knowing and
voluntary. (Doc. # 226 at 7). Thus, by knowingly and
voluntarily entering his guilty plea, Abney properly waived
all non-IAC claims, including those relating to his criminal
history score and the drug-quantity enhancement. Id.
Ingram also rejected Defendant's IAC claims. First,
Defendant could not demonstrate that his attorney was
ineffective for not advising him to take an open plea because
the evidence demonstrated that Defendant received a
substantial benefit in return for accepting the
Government's plea offer. Id. at 13. Second,
Defendant failed to establish that his counsel was
ineffective for not contesting the relevant conduct that was
used to determine his criminal history score. Id. at
16. According to Judge Ingram, there was sufficient evidence
to establish Defendant's involvement in trafficking
between 150 and 500 grams of actual methamphetamine, and
Defendant admitted as much in his plea agreement and during
his plea colloquy. Id. at 16-17. Finally, Judge
Ingram found that Defendant's counsel was not ineffective
for failing to object to the probation office's
calculation of Defendant's criminal history score under
the Sentencing Guidelines because his criminal history score
was correctly calculated. Id. at 17.
November 21, 2018, Defendant filed Objections to the R&R.
(Doc. # 228). The United States did not respond to
Defendant's Objections. For the reasons set forth below,
Defendant's Objections are overruled and Judge
Ingram's R&R is adopted.