United States District Court, D. Oregon
Brown Assistant Federal Public Defender Attorney for
F. Rosenblum, Attorney General Samuel A. Kubernick, Assistant
Attorney General Department of Justice Attorneys for
SUPPLEMENTAL OPINION AND ORDER
A. Hernandez United States District Judge.
October 28, 2016, the Court denied relief on all of
Petitioner's claims with a single exception: whether
trial counsel was constitutionally ineffective when he failed
to argue that the State had not proven the facts underlying
Petitioner's departure sentences beyond a reasonable
doubt. The Court allowed an opportunity for further briefing,
and now addresses Petitioner's final claim on its merits.
pled guilty to four counts of Felon in Possession of a
Firearm, and the trial court imposed consecutive departure
sentences totaling 96 months in prison. It justified the
imposition of the departure sentences by finding that
engaged in persistent involvement in similar offenses based
on the fact that he has been involved in a murder, a robbery
which are person crimes, and was caught with a sawed-off
shotgun while on release. . . .
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. . . has had prior sanctions that have not deterred his
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. . . incarceration is necessary for the public safety and
based on the fact that the [Petitioner's] lack of ability
to understand the dangerousness of the weapons that he kept
coming into contact with even while he was out on release.
Exhibit 109, pp. 20-22.
appeal, the parties jointly moved to vacate the trial
court's Judgment and remand the case for resentencing
because his 96-month sentence exceeded Oregon's 200% and
400% rules. Respondent's Exhibit 112. The Oregon Court of
Appeals granted the parties' motion, leading to a
resentencing proceeding in which the trial court imposed
consecutive departure sentence totaling 66 months in prison.
Respondent's Exhibit 144, pp. 9-10.
sole remaining claim, Petitioner argues that his trial
attorney should have argued that the State had not proven the