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United States v. Durant

United States District Court, D. Oregon, Portland Division

September 6, 2019

UNITED STATES OF AMERICA,
v.
DONALD RAY DURANT III,, Defendant.

          OPINION AND ORDER

          MICHAEL W. MOSMAN CHIEF UNITED STATES DISTRICT JUDGE

         Defendant 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. [63] 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. [110] at 1. He also lodged a pro se Motion to Reduce Sentence [119], 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. [115]. For the reasons stated below, the Amended Motion to Vacate or Correct Sentence Under 28 U.S.C. § 2255 [110], the Motion to Reduce Sentence [119], and the Motion for Hearing [115] are DENIED.

         BACKGROUND

         Mr. 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 [62] 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. [33]. 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. [110] at 2.

         The 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. [123] at 3. The parties also agreed to guideline score reductions for early disposition, acceptance of responsibility, and substantial assistance. Resp. [123] 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. [123] 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. [123] 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. [113] at 4.

         At 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. [64] at 3.

         DISCUSSION

         Mr. 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. [110] at 2. Mr. Durant also lodged a pro se Motion to Reduce Sentence Under 28 U.S.C. § 2255 [119], in which he argued that his counsel was ineffective for, among other reasons, miscalculating the base offense level. Pitcher Decl. [120] 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. [120] at 2; Mot. [119] at 5, 17. Mr. Durant requested an evidentiary hearing to address the basis for his motions to vacate or reduce his sentences. Mot. [115].

         I. Ineffective Assistance of Counsel

         To 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).

         To 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).

         To 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.

         A. Failure to Investigate

         1. Ownership ...


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