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United States v. Clarence Dearing

United States District Court, D. Colorado

September 20, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
CLARENCE DEARING, Defendant,

          ORDER DENYING MOTION TO VACATE

          R. BROOKE JACKSON UNITED STATES DISTRICT JUDGE

         Clarence Dearing, representing himself pro se, moves to vacate his sentence pursuant to 28 U.S.C. § 2255, asserting ineffective assistance of counsel. ECF No. 725.[1] Pursuant to this Court’s order, the government responded. ECF No. 748. The Court now finds that the files and records of the case conclusively show that Mr. Dearing is entitled to no relief and therefore denies the motion without a hearing. See 28 U.S.C. § 2255(b).

         BACKGROUND FACTS AND CASE HISTORY

         On March 14, 2018 Mr. Dearing pled guilty to Count Two of the Indictment, Distribution and Possession with the Intent to Distribute a Quantity of a Mixture and Substance Containing Cocaine Base, a Schedule II Controlled Substance. ECF No. 461.[2] He was represented by an experienced criminal defense lawyer, Richard N. Stuckey, who had been appointed from the CJA panel. Before his change of plea hearing, Mr. Dearing presented a Plea Agreement and a Statement by Defendant in Advance of Plea of Guilty. ECF Nos. 462 and 463. Those documents were marked Court Exhibits 1 and 2 for the Change of Plea Hearing. During the hearing Mr. Dearing confirmed under oath that he had read both documents, discussed them with counsel, and understood their contents. ECF No. 744 at 9 (transcript). In his Statement by Defendant in Advance of Plea of Guilty Mr. Dearing represented, “I am satisfied with my attorney. I believe that I have been represented effectively and competently in this case.” ECF No. 463 at 8, ¶25. During the Change of Plea Hearing Mr. Dearing again represented that he was satisfied with counsel. ECF No. 744 at 8.

         Mr. Dearing also specifically advised the Court during that hearing that he was guilty of the crime charged, and that the stipulation of a factual basis as set forth in the Plea Agreement was accurate. Id. at 11, 12-13. Included in the stipulation was the parties’ agreement that Mr. Dearing’s total relevant conduct was at least 28 grams but fewer than 112 grams of cocaine base. ECF No. 462 at 7. He expressly confirmed during the Change of Plea Hearing that his relevant conduct was at least 28 but fewer than 112 grams of crack cocaine. ECF No. 744 at 12. Based on that stipulated amount, the parties agreed that the base offense level for purposes of the Federal Sentencing Guidelines was 24. After subtracting three levels for his acceptance of responsibility the parties agreed that the offense level was 21.

         As part of his plea bargain Mr. Dearing agreed to waive his right to appeal with certain specific exceptions. Plea Agreement, ECF No. 462, at 3. The Court discussed this partial appellate waiver with Mr. Dearing during the Change of Plea Hearing. He stated that he understood the waiver and understood that unless one of the listed exceptions applied, he could not successfully appeal the Court’s sentence. ECF No. 744 at 15-16. He added that he had no questions about the appellate waiver. Id. at 16.

         Mr. Dearing was again represented by Mr. Stuckey at his Sentencing Hearing. The Court found that, based on an offense level of 21 and a criminal history category of V, the recommended sentencing range under the Guidelines was 70-87 months’ imprisonment. ECF No. 749 at 25 (transcript). Mr. Stuckey on behalf of Mr. Dearing sought a variance to a sentence of 46 months. Motion for Non-Guideline Sentence, ECF No. 545, at 3. The Court granted a variance, though not to the extent requested by counsel, and sentenced Mr. Dearing to 60 months imprisonment. ECF No. 749 at 28.

         In his motion to vacate his sentence Mr. Dearing’s asserts the following:

1. The correct amount of relevant conduct, specifically, that his relevant conduct should have been 27, such that the base level should have been 22, and his offense level after deducting the acceptance of responsibility credits should have been 19. This would have generated a more favorable recommended Guideline range (57-71 months). ECF No. 725 at 4. Mr. Stuckey was deficient in failing to argue this.
2. Mr. Stuckey failed to file a notice of appeal on his behalf or to consult with him regarding his desire to appeal. Id.
3. Mr. Stuckey did not advise him on the advantages and disadvantages of pleading guilty. Id. at 5.
4. His Guideline range should have been 37-46 months, again based on 27.87 grams of cocaine base. This is essentially duplicative of his first argument, except that it implicitly suggests that the offense level should have been 15, as that is the only way one gets to a 37-46-month range with a criminal history category V. He faults his lawyer for allowing this mistake to occur.
5. His criminal history category was overstated because “Petitioner has no other criminal history.” Here he argues that he should have had an offense level of 19 and criminal history category I, resulting in a 30-37-month range. Again, he faults his lawyer for allowing this mistake to occur.

         ANALYSIS ...


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