United States District Court, E.D. Tennessee, Greeneville
ASA K. CALHOUN, Petitioner,
UNITED STATES OF AMERICA, Respondent.
JORDAN, UNITED STATES DISTRICT JUDGE.
the Court is Petitioner's pro se motion to vacate, set
aside, or correct his sentence under 28 U.S.C. § 2255
[Doc. 494]. The United States responded in opposition
[Doc. 502]. Petitioner filed a reply to the Government's
response [Doc. 524]. Also before the Court are
Petitioner's combined motion for an evidentiary hearing
and appointment of counsel [Doc. 513]. For the reasons
discussed below, Petitioner's requests for an evidentiary
hearing and for the appointment of counsel [Id.]
will be DENIED, and his § 2255 motion
[Doc. 494] will be DENIED and
DISMISSED WITH PREJUDICE.
Eastern District of Tennessee from January of 2011 to March
of 2012, Petitioner engaged in a conspiracy to distribute
significant quantities of oxycodone pills obtained from pain
clinics in Norcross, Georgia [Doc. 274 (Plea Agreement,
¶ 3)]. In January of 2012, Petitioner sponsored a
co-defendant on a trip to a pain clinic to obtain the
oxycodone pills [Id.]. Law enforcement authorities
discovered Petitioner's involvement in the
oxycodone-distribution conspiracy, using a confidential
informant who made a controlled purchase of two 30-milligram
oxycodone pills at Petitioner's home in June of 2012
[Id.]. In a three-count indictment issued on June
13, 2012, a federal grand jury charged Petitioner with one
count of conspiring to distribute and possess with intent to
distribute a quantity of oxycodone, in violation of 21 U.S.C.
§§ 846 and 841(b)(1)(C) [Doc. 3 (Indictment, Count
parties negotiated-and Petitioner signed-a plea agreement
under which he would plead guilty to charged offense [Doc.
274, Plea Agreement, ¶1]. Petitioner also filed a sealed
supplement to the plea agreement [Doc. 278, Plea Agreement
Suppl.]. Under the plea agreement provisions, Petitioner
stipulated that a conservative estimate of the amount of
drugs he conspired to distribute was approximately 2, 450,
30-milligram oxycodone pills [Doc. 274, Plea Agreement,
¶3(g)]. Seven days later, on January 22, 2013,
Petitioner pled guilty to that crime [Doc. 281]. The Court
accepted his guilty plea and referred the matter to the
United States Probation Office for a Presentence
Investigation Report (PSR) [Id.].
the drug quantity stipulated in the plea agreement, the
probation officer who prepared the PSR noted that
Petitioner's base offense level was twenty-eight [PSR
¶ 23]. The probation officer determined that
Petitioner's offense level should be increased by three
levels under § 3B1.1(b) of the Guidelines based on
Petitioner's role as a manager or supervisor
[Id. ¶ 26]. The increase was warranted, so
found the probation officer, by virtue of Petitioner's
admission that he had sponsored others in securing oxycodone
pills from an out-of-state pain clinic by paying for the
costs of the trips, clinic visits, MRIs, and prescriptions,
in return for which he would receive part of the oxycodone
pills, that he would further distribute [Id.]. A
three-level reduction for acceptance of responsibility
yielded a total offense level of twenty-eight, which along
with the lowest criminal history category of I, resulted in
an advisory Guidelines range of 78 to 97 months [Id.
¶¶ 30-31, 37, 95].
objected to the § 3B1.1(b) enhancement and argued that,
based on his criminal history points of zero, he would
qualify for a safety valve reduction if he did not receive
the § 3B1.1(b) enhancement [Doc. 442
(sealed)]. The Court overruled the objection [Doc.
449]. Later, at Petitioner's sentencing hearing, Counsel
renewed his arguments against the aggravating role increase
and asked the Court to reconsider its ruling [Doc. 499 (Sent.
government moved for a two-level downward departure of
Petitioner's base level offense pursuant to § 5K1.1
of the Guidelines, resulting in an adjusted Guidelines range
of 63 to 78 months [Doc. 448 (sealed)]. The Court granted the
government's motion; overruled Petitioner's objection
to the § 3B1.1(b) enhancement; and imposed a 63-month
term of imprisonment, the lowest sentence in his adjusted
Guidelines range [Doc. 453 (Judgment); Doc. 499 (Sent.
Hr'g Tr. pp. 4, 12, 20)].
did not file a direct appeal. Instead, he moved for a
sentence reduction based on remorse for his criminal conduct
and family concerns, which the Court denied for lack of
jurisdiction to grant the request [Docs. 483 and 484]. Some
six weeks afterward, Petitioner returned to the Court with a
“Motion to Abate for Lack of Subject-Matter
Jurisdiction” [Doc. 485]. The Court denied this motion
as legally groundless [Doc. 486].
later, Petitioner submitted this pro se § 2255 motion to
vacate, claiming that he received the aggravating role
increase under § 3B1.1(b) because counsel provided
ineffective assistance by failing to raise one
“meritorious objection” to repel that
enhancement [Doc. 494 (Motion to Vacate at 3)]. The
additional objection that counsel should have raised, in
Petitioner's view, is that Petitioner did not qualify for
the enhancement because he “merely provided
money”- and not even that “much money”-to
make the offense possible and because he was “merely
managing the assets of the enterprise” [Id. at
6]. In his supporting affidavit, Petitioner describes his
role in the conspiracy as “financier only” and
argues that he and his co-defendants played equal roles, in
that he provided the money and they obtained the pills [Doc.
496]. Petitioner speculates that his co-defendants could have
chosen to cut him out of the conspiracy and that had they
done so, the conspiracy could have continued without him
also believes that he could present evidence at a hearing
that would show that he was not a manager or supervisor, as
the Guidelines defined those terms [Id. ¶11].
Thus, as noted previously, Petitioner moves for an
evidentiary hearing and appointed counsel to represent him in
his collateral relief endeavor [Doc. 513]. The Court turns
first to the Petitioner's latest motion.
REQUEST FOR EVIDENTARY HEARING AND APPOINTED COUNSEL
Rule 8 of the Rules Governing § 2255 Proceedings in
United States District Courts, the Court must determine,
based on a review of the answer and the record, whether an
evidentiary hearing is required. Pola v. United
States, 778 F.3d 525, 532 (6th Cir. 2015). A
petitioner's burden in this regard is relatively light,
but more is required than protestations of innocence.
Valentine v. United States, 488 F.3d 325, 334 (6th
there are no factual disputes, such as might arise if the
parties offered competing affidavits from Petitioner and
counsel as to what happened. See e.g., Pola, 778
F.3d at 534 (noting an evidentiary hearing would be required
where a petitioner's and counsel's affidavits
directly contradicted each other regarding whether petitioner
had requested counsel to file a notice of appeal). Put
simply, Petitioner has not identified any material factual
dispute involving his §3B1.1(b) enhancement that must be
resolved at an evidentiary hearing. True, Petitioner
speculates that the conspiracy would have continued had his
co-defendants ousted him from the conspiracy, but a
speculation is not a fact. O'Malley v. United
States, 285 F.2d 733, 735 (6th Cir. 1961) (stating that
“[c]onclusions, not substantiated by allegations of
fact with some probability of veracity, are not ...