United States District Court, D. Colorado
ORDER DENYING MOTION TO VACATE
BROOKE JACKSON UNITED STATES DISTRICT JUDGE
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. 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).
FACTS AND CASE HISTORY
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.
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.
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.
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.
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.
motion to vacate his sentence Mr. Dearing’s asserts the
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.
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