United States District Court, D. Colorado
ORDER DENYING MOTION TO VACATE
BROOKE JACKSON UNITED STATES DISTRICT JUDGE.
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. 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. §
FACTS AND CASE HISTORY
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.
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
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
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.
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.
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.
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.