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Thompson v. United States

United States District Court, E.D. Tennessee, Greeneville

November 9, 2017

BARRY DAVID THOMPSON, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM AND ORDER

          J. Ronnie Greer United States District Judge.

         Barry David Thompson ("petitioner") has filed a motion to vacate, set aside or correct his sentence pursuit 28 USC §2255, [Doc. 653], which he has supplemented twice, [Docs. 657, 676]. For the reasons discussed in this memorandum and order, his motion is denied.

         I. BACKGROUND

         On May 14, 2013, petitioner and 16 co-defendants were charged in a superseding indictment with various drug offenses. Count One charged petitioner and all other defendants with conspiring to possess with the intent to distribute oxycodone. Petitioner and a co-defendant, Jessica White, also were charged in count eight with aiding and abetting each other with possessing oxycodone with the intent to distribute.[1]

         Attorney Don Spurrell of the Criminal Justice Act panel was appointed to represent petitioner. On May 17, 2013, petitioner filed a notice of his intent to plead guilty to the indictment without a plea agreement.[2]

         Using the records of fourteen Florida pharmacies at which petitioner, over an 18-month period, filled prescriptions for oxycodone written by three different Florida doctors, the United States Probation Office attributed 2730 oxycodone pills to plaintiff, resulting in a Base Offense Level of 28 and, after a three level reduction for acceptance of responsibility, a guideline range of 57 to 71 months.[3]

         Although tacitly agreeing that he obtained 2730 oxycodone pills as set out in the presentence report, Petitioner objected to the number of pills attributed to him by Probation, arguing that many of those pills he consumed himself, that the actual amount he distributed was far less, that his Offense Level should be only 17, and that his resulting guideline range would be 24 to 30 months.[4]At his sentencing hearing, petitioner argued that to the extent the court relied on the pharmacy records, it should take into account only the prescriptions filled from January through June 2012, the relevant time period of the case.[5] The sentencing hearing was held on March 10, 2014 during which the number of oxycodone pills distributed by petitioner was the sole issue.[6]

         Both petitioner and Jessica White testified at the hearing. White testified that petitioner supplied her with approximately 4400 pills over 5 months, whereas petitioner testified that at the most he supplied her with 200 pills during that time. The court noted that it boiled down to a question of determining who was to be believed, Jessica White or petitioner. After discussing in detail the respective testimonies of petitioner and White, this court credited White's testimony. Although this court agreed that the relevant time period for the calculation of the number of pills should be limited to the 6-month period from January through June 2012, White's testimony indicated that petitioner distributed over 4400 pills within that time. That number of pills increased his Base Offense Level from 28 as initially calculated by the probation office to 30, which in turn increased his guideline range to 70 to 87 months.[7] Nevertheless, the court chose to sentence petitioner to the bottom of the lower range as originally calculated by Probation, 57 months on each count, the sentences to run concurrently.[8]

         Petitioner appealed to the Sixth Circuit Court of Appeals, raising only one issue: that the sentence imposed upon him was procedurally unreasonable because the court miscalculated the number of oxycodone pills which were attributed to him. The Court of Appeals affirmed petitioner's sentence.[9] Petitioner's request for certiorari to the Supreme Court was denied on March 2, 2015, 135 S.Ct. 1514 (2015).

         II. PETITIONER'S §2255 MOTION

         Petitioner makes one claim in his motion-that his sentence was procedurally unreasonable because it was based on the testimony of Jessica White; that White made contradictory statements regarding the number of pills which petitioner obtained for distribution; and the court erroneously chose to adopt as its factual finding the greatest number to which White testified.

         He raises no new or different claims in his two supplements; they each make the same argument, viz., that Jessica White was not a credible witness and the court's reliance on her testimony was improper.[10]

         III. ANALYSIS

         To obtain relief under 28 U.S.C. § 2255, a petitioner must show an error of constitutional magnitude which had a substantial and injurious effect or influence on the proceedings. Clemmons v. Sowders, 34 F.3d 352, 354 (6th Cir. 1994). To obtain relief for a non-constitutional error, the petitioner must show a fundamental defect in the proceeding that resulted in a complete miscarriage of justice or an ...


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