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Calhoun v. United America

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

January 22, 2018

ASA K. CALHOUN, Petitioner,



         Before the Court is Petitioner's pro se motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255 [Doc. 494].[1] 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.

         I. BACKGROUND

         In the 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 Three)].

         The 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.].

         Using 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].

         Petitioner 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)].[2] 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. Hr'g Tr.)].

         The 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)].

         Petitioner 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].

         Days 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 [Id.].

         Petitioner 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.


         Under 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 Cir. 2007).

         Here, 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 ...

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