United States District Court, S.D. Georgia, Statesboro Division
REPORT AND RECOMMENDATION
Smokes pled guilty to a drug charge and received a 151 month
sentence on October 21, 2015. CR615-001, doc. 247. He did not
appeal his conviction but now seeks to collaterally challenge
his sentence through ineffective assistance of counsel
claims. Docs. 343 & 344.
plea hearing, the Court read the charges in the indictment
and confirmed he understood what the Government would have to
do to convict him of those charges. Doc. 348 at 6-7, 12. The
Court further clarified that by pleading guilty to the lesser
included offense of conspiracy to possess with intent to
distribute a controlled substance (cocaine), he was admitting
that the "essential elements" of the offense were
"satisfied." Smokes swore he understood and that,
indeed, they were. Id. at 12. The Court explained
the rights he was giving up by pleading guilty, including the
rights to a trial, to put forth a defense, and to remain
silent, and confirmed that he understood. Id. at
Court also explained the possible sentences he could face for
pleading guilty and that he would be sentenced under the
advisory Sentencing Guidelines. Smokes again testified he
understood. Doc. 348 at 9-10, 13-14. He testified that he had
not been forced or pressured into pleading guilty
(id. at 3), that no one had promised him an exact
sentence (id. at 14), that his retained counsel had
fully reviewed the indictment and plea agreement with him
(id. at 9, 14-), and that he was satisfied with his
attorney's representation (id. at 10). The Court
reviewed the terms of the plea agreement, including his
waiver of the rights both to appeal his case directly and to
collaterally attack his sentence. Id. at 16-19.
Smokes confirmed it was his intention to do so. Id.
Court thus concluded that Smokes' guilty plea was knowing
and voluntary; he affirmed that it was. Doc. 348 at 20;
see also Blackledge v. Allison, 431 U.S.
63, 73-74 (1977) ("Solemn declarations in open court
carry a strong presumption of verity."); accord
United States v. Gonzalez-Mercado, 808 F.2d 796, 800 n.
8 (11th Cir. 1987) ("While Rule 11 is not
insurmountable, there is a strong presumption that the
statements made during the colloquy are true.");
United States v. Spitzer, 785 F.2d 1506, 1514 n. 4
(11th Cir. 1986) ("[I]f the Rule 11 plea-taking
procedure is careful and detailed, the defendant will not
later be heard to contend that he swore falsely.").
United States Probation Office then prepared a Presentence
Investigation Report (PSR), finding a base offense level of
30 pursuant to U.S.S.G. § 2D1.1(c)(6), based on a
conservative attribution of "at least 1, 524.06
kilograms of marijuana" attributable to Smokes for his
role in the trafficking enterprise. PSR ¶¶ 4-7, 13,
18. Smokes' criminal history, however, set his offense
level at 32. Id. at ¶ 19, 31-32. For acceptance
of responsibility, he was given a three-level reduction,
leaving a total offense level of 29. Id. at
¶¶ 20-22. With that level and criminal history
category of VI, the advisory guideline range under the PSR
was 151 to 188 months, with a statutory maximum of 20 years.
Id. at ¶¶ 50 & 51; see 21
U.S.C. § 846 & 841(b)(1)(C). Smokes' objections
were resolved prior to sentencing (PSR, Addendum); at
sentencing he testified that he had read and discussed the
PSR with his attorney and that he had no remaining
objections. Doc. 341 at 5.
Court adopted the PSR's findings of fact and Guidelines
calculations. Based on counsel's argument regarding
Smokes' ephemeral, minor role in the enterprise, and
nonviolent criminal history, it imposed a 151-month sentence,
which was at the lowest end of the advisory Guidelines range.
Doc. 341 at 12-18. It then entered Judgment for 151
months' imprisonment. Doc. 247. Smokes did not appeal.
See doc. 163 at 4 (plea agreement waiving right to
direct appeal) & doc. 243 (Post-Conviction Consultation
Certification, attesting he had "decided not to file an
appeal, and [that his] attorney ha[d] explained to [him] the
consequences of failing to do so.").
argues that his attorney was ineffective for failing to (1)
"fully investigate the adequacy of his criminal history
category, "(2) move for a downward departure under
U.S.S.G. § 4A1.3(b)(1), (3) argue for a § 5K1.1
section reduction after he "fully satisfied his
obligations under the terms of the Plea Agreement, " and
(4) "advocate for the benefits to which [movant] is
entitled" under the plea agreement. Doc. 344 at 3-8.
Because of these errors, he claims, his plea agreement (and,
thus, his double waiver of his direct and collateral appeal
rights) was unknowingly and involuntarily made. Id.
All of these claims fail.
prevail on a claim of ineffective assistance of counsel, a
prisoner must prove that his counsel rendered deficient
performance and that he was prejudiced by the deficient
performance." Castillo v. United States, 816
F.3d 1300, 1303 (11th Cir. 2016) (citing Strickland v.
Washington, 466 U.S. 668, 687 (1984)). In
evaluating adequacy of performance, "counsel is strongly
presumed to have rendered adequate assistance and made all
significant decisions in the exercise of reasonable
professional judgment." Strickland, 466 U.S. at
690. "For performance to be deficient, it must be
established that, in light of all the circumstances,
counsel's performance was outside the wide range of
professional competence." Putman v. Head, 268
F.3d 1223, 1243 (11th Cir. 2001).
the prejudice prong, the prisoner must show "that there
is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different." Strickland, 466 U.S. at
694; Matire v. Wainwright, 811 F.2d 1430, 1434 (11th
Cir. 1987) (same); see also Butcher v. United
States, 368 F.3d 1290, 1293 (11th Cir. 2004)
("[A]ttorney errors come in an infinite variety and are
as likely to be utterly harmless in a particular case as they
are to be prejudicial. That the errors had some
conceivable effect on the outcome of the proceeding
is insufficient to show prejudice.").
faults his attorney for failing to object to the calculation
of his criminal history and move for a downward departure.
Doc. 344 at 5-6. But for counsel's failures, he believes,
a "viable argument could have been made to support a
finding that his criminal history significantly
over-represented the seriousness of his criminal
history." Id. at 6. But at sentencing, Smokes
said he had reviewed with counsel and had no objections to
the PSR. Doc. 341 at 4-5. And his criminal history included 2
prior convictions for sales of cocaine, serious drug offenses
which classed him as a career offender under the Guidelines.
PSR at ¶¶ 24-32; see U.S.S.G. §
4B1.1(a)(3) (requiring "at least two" predicate
convictions). No argument counsel could have made would have
unwound Smokes' criminal history or changed his career
offender status. And the failure to raise a meritless issue
does not render his performance deficient. Diaz-Boyzo v.
United States, 294 F.App'x 558, 559 (11th Cir.
2008); United States v. Winfieid, 960 F.2d 970, 974
(11th Cir. 1992).
contrary to movant's contention, counsel did
request a downward variance and asked that the Court sentence
Smokes below the advisory guidelines. Doc. 341 at 12-16. He
highlighted movant's "short-lived, " minor role
in the conspiracy as a "street-level dealer, "
"not a leader, " and emphasized that his criminal
history was both nonviolent and "not extensive."
Id. at 12-13. Counsel also argued that the probation
officer had recommended the lowest end of the sentencing
guidelines, and that movant had been both "cooperative
and respectful with authorities throughout the prosecution
process despite his not pursuing the 5K1.1 [motion for
downward departure] at the moment." Id. at
14-15; see also Id. at 16-17 (prosecutor noting that
Smokes was in a good position for a § 5K1.1 motion if he
of counsel's argument, though the Court determined that
movant was "accurately characterized as a career
offender, " it imposed sentencing at the lowest end of
the guidelines -- only one month higher than the highest end
of the range absent a career offender enhancement.
Id. at 17-19. Though he may not have appreciated
fully counsel's effective advocacy at the time, Smokes
actually received the full benefit of counsel's
expertise. Despite being properly found a career offender
under the guidelines in yet another cocaine sale, counsel