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States v. Dunlap

United States District Court, D. Colorado

September 24, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
TERRY DUNLAP, Defendant,

          ORDER DENYING MOTION TO VACATE

          R. BROOKE JACKSON UNITED STATES DISTRICT JUDGE.

         Terry Dunlap, representing himself pro se, moves to vacate his sentence pursuant to 28 U.S.C. § 2255, asserting ineffective assistance of counsel. ECF No. 737.[1] Pursuant to this Court’s order, the government responded. ECF No. 756. Mr. Dunlap filed a Traverse in reply to the government’s response. ECF No. 782. The Court now finds that the files and records of the case conclusively show that Mr. Dunlap 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 April 23, 2018 Mr. Dunlap 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. 498.[2] He was represented by an experienced criminal defense lawyer, Mark C. Johnson, who had been appointed from the CJA panel. Before his change of plea hearing, Mr. Dunlap presented a Plea Agreement and a Statement by Defendant in Advance of Plea of Guilty. ECF Nos. 501 and 502. Those documents were marked Court Exhibits 1 and 2 for the Change of Plea Hearing. During the hearing Mr. Dunlap confirmed under oath that he had read both documents; that he had discussed them with counsel; that he had had as much time as he felt he needed to get his lawyer’s advice about the matters contained in the documents and about the case generally; and that he understood the contents of those documents. ECF No. 745 at 3-4 (transcript). In his Statement by Defendant in Advance of Plea of Guilty Mr. Dunlap represented, “I am satisfied with my attorney. I believe that I have been represented effectively and competently in this case.” ECF No. 502 at 8, ¶24. During the Change of Plea Hearing Mr. Dunlap confirmed that he was satisfied with counsel. ECF No. 745 at 3.

         Mr. Dunlap 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 3-7. Included in the stipulation was the parties’ agreement that Mr. Dunlap’s relevant conduct was approximately 84 grams of cocaine base. ECF No. 501 at 8. He confirmed during the Change of Plea Hearing that his relevant conduct was approximately 84 grams of crack cocaine. ECF No. 745 at 7. 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. They also agreed that Mr. Dunlap’s criminal history category was VI. ECF No. 501 at 9.

         As part of his plea bargain Mr. Dunlap agreed to waive his right to appeal with certain specific exceptions. Id. at 3. The Court discussed this partial appellate waiver with Mr. Dunlap 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. 745 at 11. He added that he had no questions about the appellate waiver. Id.

         Mr. Dunlap was again represented by Mr. Johnson at his Sentencing Hearing. The recommended sentencing range under the Federal Sentencing Guidelines for an offense level of 21 and a criminal history category of VI would ordinarily be 77-96 months’ imprisonment. ECF No. 749 at 25 (transcript). However, the maximum sentence for the crime to which Mr. Dunlap pled was 48 months, and therefore, the Guideline “range” was 48 months. See ECF No. 589 (Presentence Investigation Report) at 32, ¶126. Mr. Johnson on behalf of Mr. Dunlap filed a motion seeking a downward variance to 36 months. ECF No. 583. He reiterated his request for a variance on behalf of Mr. Dunlap at the sentencing hearing. ECF No. 746 at 2-9. The Probation Office and the government both recommended 48 months.

         Ultimately the Court agreed with the recommendations for a Guideline sentence and sentenced Mr. Dunlap to 48 months plus one year of supervised release. ECF No. 746 at 21-26. Among the factors cited by the Court, in addition to the Guidelines, were the facts that Mr. Dunlap had 17 prior felony convictions; that he also had 12 convictions for other crimes, including thefts, DUI’s and a battery; that he was on supervision when he committed the present crime; that the factual basis included that he was a participant in the drug distribution conspiracy with the 13 other defendants and stipulated to relevant conduct of approximately 84 grams of crack cocaine; and that this sentence would not create an unwarranted disparity with the sentences imposed on other defendants in this case. The Court also sentenced Mr. Dunlap to six consecutive months on a second case that was before the Court, No. 12-cr-449. Id. at 26-27.

         Mr. Dunlap’s motion to vacate his sentence asserts ineffectiveness of his lawyer, Mr. Johnson. Ineffective assistance of counsel was an exception to his appellate waiver, and although Mr. Dunlap did not pursue a direct appeal, he raises the issue now in a timely § 2255 motion. Mr. Dunlap asserts the following:

1. Counsel failed to inform him of the consequences of his plea, specifically, the advantages and disadvantages of pleading guilty, including the application of the Guidelines to his offense. ECF No. 737 at 4-5.
2. Counsel’s failure to advise him on the application of the Guidelines to his offense left him unable to assist counsel in arguing for the correct calculation of the Guidelines. Id. at 6.
3. Due to counsel’s deficient performance, the Guidelines were not correctly calculated. The base offense level should have been based on 3.5 grams, which was the amount allegedly discussed on the phone. Id. at 8.
4. Counsel failed to explain the relevant conduct. The figure 84 grams is “a mere figment of an imagination, ” was not supported by a preponderance of the evidence, and resulted in the imposition of arbitrary and capricious punishment. Counsel’s performance during the “critical plea negotiation stage” was deficient. Id. at 9-10.

         ANALYSIS ...


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