United States District Court, D. Oregon, Portland Division
OPINION AND ORDER
MICHAEL W. MOSMAN CHIEF UNITED STATES DISTRICT JUDGE
Donald Ray Durant III pleaded guilty to one count of
Possession with Intent to Distribute Methamphetamine, in
violation of 21 U.S.C. §§ 841(a)(1),
841(b)(1)(A)(viii), and one count of Possession with Intent
to Distribute Heroin, in violation of 21 U.S.C. §§
841(a)(1), 841(b)(1)(B)(i). J.  at 1. On September 7,
2017, the Court sentenced Mr. Durant to ninety months of
imprisonment on each count, to be served concurrently, to be
followed by five years of supervised release. Id.,
at 2-3. Mr. Durant now moves to vacate or correct his
sentence under 28 U.S.C. § 2255 arguing that he was
deprived of his Sixth Amendment right to effective assistance
of counsel. Am. Mot.  at 1. He also lodged a pro se
Motion to Reduce Sentence , in which he argued that his
guideline score was calculated incorrectly. Finally, Mr.
Durant moved for a hearing in connection with the motion to
vacate or correct his sentence. Mot. . For the reasons
stated below, the Amended Motion to Vacate or Correct
Sentence Under 28 U.S.C. § 2255 , the Motion to
Reduce Sentence , and the Motion for Hearing  are
Durant was arrested after a search of his home uncovered
approximately 2 kilograms of methamphetamine, 450 grams of
heroin, 85 grams of cocaine, $20, 000 in currency, and one
9mm pistol. Am. Presentence Report  at ffl[ 25-31. Plea
negotiations began shortly after Mr. Durant's arrest. Mr.
Durant was represented by two attorneys prior to sentencing:
after a court-appointed attorney represented Mr. Durant at
his initial appearance and at a review of detention hearing,
Mr. Durant retained his own counsel. Mot. . Although both
attorneys were involved in plea negotiations, Mr. Durant
bases his arguments for ineffective assistance of counsel on
the performance of the attorney he retained. Am. Mot. 
parties agreed that Mr. Durant would plead to two out of the
four counts in the indictment, with a base offense level of
36 due to the quantity of drugs. Resp.  at 3. The
parties also agreed to guideline score reductions for early
disposition, acceptance of responsibility, and substantial
assistance. Resp.  at 3. A two-level enhancement was
added to the guideline score for possession of a dangerous
weapon-the pistol that was found in Mr. Durant's
apartment. Resp.  at 3. As part of the plea agreement,
the parties agreed that the government would recommend 121
months of imprisonment, at the low end of the guideline
range, and that Defendant could argue for no lower than 84
months of imprisonment. Resp.  at 3. Prior to
sentencing, Mr. Durant participated in the Presentence Report
process, "giving a detailed and poignant account of his
upbringing during his interview." Mem.  at 4.
sentencing, Jason Shriver appeared as a witness for Mr.
Durant. Mr. Shriver informed the Court that he owned the 9mm
pistol recovered from Mr. Durant's apartment-he testified
that he had taken it off before falling asleep on Mr.
Durant's couch and had forgotten about it. After hearing
Mr. Shriver's testimony, the government agreed that the
two-level dangerous weapon enhancement could not be proven
and reduced its recommended sentence to 100 months of
imprisonment. The Court declined to impose the two-level
weapon enhancement and imposed a sentence of 90 months, which
was below the guideline range. In addition to the guideline
adjustments that the parties agreed upon, the Court
determined that a variance was warranted due to Mr.
Durant's lack of youthful guidance. J.  at 3.
Durant claimed that his counsel was ineffective in four ways:
(1) failing to investigate Mr. Shriver's ownership of the
pistol, Mr. Durant's background, and Mr. Durant's
role in the offense, (2) failing to negotiate a plea offer
based on accurate facts, (3) failing to "develop
mitigating information concerning Mr. Durant's chaotic
and abusive childhood," and (4) failing to argue that
Mr. Durant's criminal history was over-represented. Am.
Mot.  at 2. Mr. Durant also lodged a pro se Motion to
Reduce Sentence Under 28 U.S.C. § 2255 , in which
he argued that his counsel was ineffective for, among other
reasons, miscalculating the base offense level. Pitcher Decl.
 at 2. Mr. Durant argued that the base offense level
should have been three points lower than originally
calculated (33 rather than 36) and that the base offense
level should have been further reduced by two points due to
Sentencing Guideline Amendment 782. Pitcher Decl.  at 2;
Mot.  at 5, 17. Mr. Durant requested an evidentiary
hearing to address the basis for his motions to vacate or
reduce his sentences. Mot. .
Ineffective Assistance of Counsel
prevail on a claim of ineffective assistance of counsel,
petitioner must show (1) that counsel's performance was
"deficient" and (2) that the deficient performance
"prejudiced the defense." Strickland v.
Washington, 466 U.S. 668, 687 (1984). "Failure to
satisfy either prong of the Strickland test obviates
the need to consider the other." Rios v. Rocha,
299 F.3d 796, 805 (9th Cir. 2002).
satisfy the deficiency prong, petitioner must demonstrate
that his attorney's actions "were outside the wide
range of professionally competent assistance."
Strickland, 466 U.S. at 690. Furthermore,
"counsel is strongly presumed to have rendered adequate
assistance and made all significant decisions in the exercise
of reasonable professional judgment." Id.
Deficient performance at sentencing can be the basis for an
ineffective assistance claim. See, e.g., Williams v.
Taylor, 529 U.S. 362, 395 (2000).
satisfy the prejudice prong, petitioner must show that there
is a "reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different." Id. at 694. A reasonable
probability is "a probability sufficient to undermine
confidence in the outcome." Id.
Failure to Investigate