United States District Court, D. Oregon
J. Williams United States Attorney District of Oregon Leah K.
Bolstad Hannah Horsley Assistant United States Attorneys
Attorneys for Plaintiff
Theodore Carpenter USP ATWATER Pro Se Defendant
OPINION & ORDER
A. HERNÁNDEZ, UNITED STATES DISTRICT JUDGE
Jeramy Theodore Carpenter moves to vacate or correct his
sentence pursuant to 28 U.S.C. § 2255, arguing that
trial counsel was ineffective during plea negotiations and at
sentencing. Defendant also argues that the Court erred at
sentencing in failing to consider §§ 5H1.3 and
5K2.13 of the Sentencing Guidelines. For the reasons below,
the Court denies the motion.
January 22, 2018, Defendant entered a guilty plea to Count
One of an indictment charging him with Conspiracy to Possess
with the Intent to Distribute Methamphetamine under 21 U.S.C.
§§ 846, 841(a)(1), and 841(b)(1)(A). Indictment,
ECF 1; Plea Hr'g Mins., ECF 59. The remaining charges for
various gun and drug offenses were dismissed. Plea Pet. &
Order Ent. Plea (“Plea Pet.”), ECF 60; Plea
Agrmt., ECF 61. Defendant entered his guilty plea under a
plea agreement pursuant to Federal Rule of Criminal Procedure
11(c)(1)(B). Plea Agrmt. ¶ 14; Plea Pet. ¶
9. Defendant acknowledged in both the plea agreement
and the plea petition that the Court was not bound by the
recommendation of the parties:
[A]lthough the judge will consider the recommendations and
agreements of both the prosecution and defense attorneys
concerning sentencing, the judge is not obligated to follow
those recommendations or agreements. If the judge imposes a
sentence different from what I expected to receive under the
terms of my Plea Agreement with the prosecutor, I do not have
a right to withdraw my plea.
Pet. ¶ 9; see also Plea Agrmt. ¶ 14
(“The Court is not bound by the recommendations of the
parties[.]”). Under the plea agreement, Defendant
agreed to a two-level increase for the use of violence. Plea
Agrmt. ¶ 11. Defendant's base offense level was 35
with an estimated criminal history category of IV or V.
Id. As part of the agreement, the Government agreed
to “recommend as a reasonable sentence under the
factors listed in 18 U.S.C. § 3553(a), a 180-month
sentence” based on the mitigation materials presented
by defense regarding Defendant's mental health history.
Id. at ¶ 12.
course of representing Defendant, Thomas
Price-Defendant's lawyer-discussed possible outcomes of
the case, including the additional time Defendant could serve
because of his pending probation revocation. Price Decl.
¶ 3, ECF 97-5. According to Mr. Price's records, he
met with Defendant for two hours to review the final version
of the plea agreement and for an additional hour prior to
sentencing to review Defendant's Presentence
Investigation Report (“PSR”) and other documents.
Id. at ¶ 4. Mr. Price asserts that Defendant
was never advised that a three-level reduction was
“locked-in.” Id. at ¶ 5. Instead,
he states Defendant was advised that the Court had the
discretion to impose a sentence that neither party
anticipated. Id. Mr. Price recalls attempting to
obtain a plea agreement under Rule 11(c)(1)(C), a request
which was rejected by the Government. Id. at ¶
7. Mr. Price asserts that he “repeatedly met with
[Defendant], in person, to discuss and convey all of this
information to him in detail” and told Defendant that
they could not achieve a “locked in” sentence.
Id. at ¶ 8. He does, however, recall giving
Defendant an estimate of what the judge would do.
Id. at ¶ 11.
by contrast, asserts that Mr. Price “told [him] over
and over that [he] would receive a 3 level reduction for
Diminished Capacity under the U.S.S.G. At no time was it made
clear to [him] that it was discretionary; and if [sic] fact
[Mr. Price] told [Defendant] that [he] was ‘locked
in' for the 3 level reduction.” Carpenter Decl.
¶ 2, ECF 88-1. Defendant asserts that he understood that
he would receive only a 10- to 15-year sentence if he pleaded
guilty due to his “mental circumstances, ” and he
and would not have pleaded if he had known he would not
necessarily receive the three-level reduction. Id.
at ¶ 3.
plea hearing, the Court reviewed the plea petition with
Defendant. Plea Hr'g Tr., 5:3-10, ECF 84. The Court
confirmed Defendant had read and understood the petition and
plea agreement, id. at 5:3-10, 12:8-17, and that Mr.
Price had explained the implications of his Rule 11(c)(1)(B)
plea, id. at 8:22-9:8. The Court acknowledged that
pursuant to the plea agreement the Government would be
seeking a 180-month sentence and that Defendant could argue
for anything down to 120 months. Id. at 12:19-25.
The Court went on to explain that it would be “up to
[the Court] to figure out what sentence to impose, ” to
which Defendant replied: “Yes, sir. I understand
that.” Id. at 13:1-3. Defendant acknowledged
that he could not withdraw his plea even if he did not like
the sentence and that his probation violation could result in
a separate, additional sentence. Id. at 13:4-9,
anticipation of sentencing, Mr. Price submitted a sentencing
memorandum and supplement to the PSR. Def. Sent. Mem., ECF
72; Conf. Suppl. PSR, ECF 73. Mr. Price wrote that
Defendant's criminal activity and drug use occurred
during a mental breakdown caused, in part, by untreated and
undiagnosed bipolar disorder. Conf. Suppl. PSR 1-2. He argued
for a downward departure due to Defendant's mental
illness. Id. at 7 (citing § 3553(a)(2)(B) and
U.S.S.G. §§ 5K2.13, 5H1.3). Mr. Price included a
letter from Defendant and a report from a psychiatrist
discussing Defendant's mental health issues and childhood
history of abuse. Id. at Encl. 1, 6.
the sentencing guidelines are advisory and “the
authority given to judges under the sentencing guidelines is
generally narrow as opposed to broader authority under §
3553(a), ” Mr. Price chose to present arguments in
favor of mitigation as variances under the sentencing
statute. Price Decl. ¶ 20. According to Mr. Price, the
statute “tends to be more generous in allowing judicial
discretion to mitigate punishment.” Id. He
further indicates that he did not argue for diminished
capacity under § 5K2.13 because there was evidence of
violent behavior in Defendant's case. Id. at
¶ 21. Mr. Price recalls Defendant hoping that the
sentencing recommendation from the Government would limit the
Court and explaining to Defendant that the Court was not
bound by their agreement. Id. at ¶ 15.
also addressed Defendant's history of abuse and mental
illness. PSR ¶¶ 74-85, 89-91, ECF 71. The PSR
stated that Defendant's childhood environment of
extraordinary neglect and abuse might warrant a sentence
outside the Guidelines range. Id. at ¶ 119. The
PSR also noted that the Government was moving for “an
additional 3-level reduction . . . . from 35 to 32, with a
criminal history category of IV, ” resulting in a
guideline range of 168 to 210 months. Id. at ¶
sentencing, Mr. Price addressed Defendant's mental health
issues. Sent. Hr'g. Tr. 7:4- 22, ECF 85. As required by
the parties' plea agreement, the Government acknowledged
Defendant's mitigation evidence and agreed to a
three-level reduction to a below-guideline recommendation of
180 months. Id. at 4:22-5:2. As the Court clarified,
however, the Government was not seeking a departure but was
instead asking the Court to “vary from the recommended
sentence of 235 to 293 and impose a 180-month
sentence.” Id. at ...