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United States v. Abney

United States District Court, E.D. Kentucky, Northern Division, Covington

August 10, 2019

UNITED STATES OF AMERICA PLAINTIFF
v.
JOSHUA L. ABNEY DEFENDANT

          ORDER ADOPTING REPORT AND RECOMMENDATION

          David L. Bunning United States District Judge.

         I. INTRODUCTION

         This 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.

         II. FACTUAL AND PROCEDURAL BACKGROUND

         On 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).

         In his 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.

         On June 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, 16-17).

         On June 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).

         Defendant 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).

         In his 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.

         Judge 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.

         On 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.

         III. ANALYSIS

         A. ...


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