United States District Court, E.D. Tennessee, Chattanooga
Magistrate Judge Steger
S. MATTICE, JR., UNITED STATES DISTRICT JUDGE
inmate James Brandon Jordan has filed a motion to vacate, set
aside, or correct sentence pursuant to 28 U.S.C. § 2255,
to which the United States has responded. Jordan has not
filed a reply, and the deadline to do so has passed. Having
considered the pleadings and the record, along with the
relevant law, the Court finds there is no need for an
evidentiary hearing and Jordan's § 2255 motion will
BACKGROUND FACTS AND PROCEDURAL HISTORY
December 4, 2013, Manchester Police Department officers
executed a search warrant on Petitioner's residence.
(Crim. Doc. 351 at ¶ 34). Petitioner was present and the
police found approximately five ounces of methamphetamine
hidden around the house, as well as $4, 000 in cash and 176
morphine tablets. (Id.). On May 27, 2015,
Petitioner, along with thirteen others, was indicted in a
twenty-two count Superseding Indictment. (Crim. Doc. 13).
Jordan was charged with conspiracy to distribute and possess
with the intent to distribute fifty grams or more of
methamphetamine and five hundred grams or more of a mixture
and substance containing methamphetamine, in violation of 21
U.S.C. §§ 841(a)(1), (b)(1)(A), and 846 (Count
Two), and possession with intent to distribute fifty grams or
more of a mixture containing methamphetamine (Count Eleven).
to the Revised Presentence Investigation Report
(“PSR”), Jordan was held responsible for 2.608
kilograms of ice methamphetamine, resulting in a base offense
level of 36. (Crim. Doc. 351 at ¶¶ 48, 49); USSG
§ 2D1.1(c)(2) (base offense level of 36 for at least 1.5
but less than 4.5 kilograms of “ice”
methamphetamine). Due to (i) a Tennessee conviction for
aggravated burglary and (ii) a Tennessee conviction for
attempt to possess with intent to distribute a controlled
substance, Petitioner was deemed a career offender under the
Federal Sentencing Guidelines. (Id. at ¶¶
55 62, 65); USSG. § 4B1.1(a). The statutory maximum
sentence for a violation of 21 U.S.C. §§ 841(a)(1)
and (b)(1)(A) is life imprisonment; after the career offender
enhancement, his offense level was 37. (Id. at
¶ 55); USSG. § 4B1.1(b).
reductions for acceptance of responsibility, the PSR
calculates a total offense level of 34. (Id. at
¶ 58). Petitioner's criminal history standing alone
resulted in a criminal history category of VI; his career
offender designation also required a criminal history
category of VI. (Id. ¶¶ 73-74); USSG.
§ 4B1.1(b). Based on his offense level and category VI
criminal history, the guideline imprisonment range was 262 to
327 months. (Id. at ¶ 96); USSG Sentencing
Table, Ch. 5, Pt. A (2015). Pursuant to 21 U.S.C.
§§ 846 and 841(b)(1)(A), Petitioner was subject to
a mandatory minimum sentence of ten years. (Id. at
August 25, 2015, Petitioner entered into an Amended Plea
Agreement (Doc. 156), in which he agreed to plead guilty to
Count Two for conspiracy to possess with intent to distribute
and the Government agreed to dismiss remaining Count Eleven
for possession with intent to distribute at sentencing.
(Crim. Doc. 156). On February 26, 2016, the Court accepted
Petitioner's plea and sentenced him to a
below-the-guidelines term of 168 months imprisonment and five
years of supervised release. (Crim. Doc. 373; see
Doc. 374 at 2). In the Amended Plea Agreement, the Petitioner
agreed not to file any motions or pleadings pursuant to 28
U.S.C. § 2255 or otherwise collaterally attack his
conviction or sentence, with two exceptions: he retained the
right to file a § 2255 motion related to either
prosecutorial misconduct or ineffective assistance of
counsel. (Crim. Doc. 156 at ¶ 12(b)).
filed a Notice of Appeal on March 14, 2016 (Doc. 401) and was
granted leave to proceed in forma pauperis. (Crim. Doc. 455).
On September 27, 2016, the appeal was dismissed on
Petitioner's motion. (Crim. Doc. 518). He did not submit
substantive pleadings or briefing in his direct appeal.
March 3, 2017, Petitioner filed a Motion to Vacate under 28
U.S.C. § 2255 (Civ. Doc. 1), challenging his conviction
on four grounds. First, he argues neither of his prior
convictions constitute predicate convictions to support a
career offender designation pursuant to § 4B1.1 of the
Sentencing Guidelines. (Id. at 4, 8). He contends
his Tennessee conviction for aggravated burglary can no
longer be considered a crime of violence after Johnson v.
United States, 135 S.Ct. 2551 (2015), and that his
attempt conviction is also not a predicate offense.
(Id.). He next challenges the disparity between his
sentence and that of co-defendant, Jesse Alan Trimue, who
Petitioner claims was held responsible for the same amount of
methamphetamine. (Id. at 6-7). Finally, he argues
his counsel was ineffective because Petitioner asked his
lawyer to present argument regarding his prior convictions,
but the seriousness of his prior convictions was overstated.
(Id. at 5). Petitioner indicates he did not raise
these issues previously because he was cooperating with
authorities and his lawyer believed challenging his career
offender enhancement would cause him to lose credit for
acceptance of responsibility in his sentencing computation.
(Id. at 9).
Government responds that Petitioner waived his right to
collaterally attack his sentence or conviction, except for
claims of ineffective assistance of counsel and prosecutorial
misconduct. (Civ. Doc. 3 at 3). According to the Government,
his challenges do not fall into either of these categories.
(Id. at 3). The Government next argues the claims
other than that for ineffective assistance of counsel are
procedurally defaulted because they were not raised on direct
appeal. (Id.). Substantively, Respondent contends
Guideline calculation errors have no constitutional
significance and, in any event, a Johnson-based
challenge to Jordan's career offender enhancement is
foreclosed by subsequent caselaw. (Id. at 4-5).
Petitioner's sentencing disparity claim, meanwhile, is
undeveloped. (Id. 5-6). Finally, the Government
argues Petitioner failed to show his counsel's
performance was deficient or that but for this deficiency,
the outcome would have been different. (Id. at 7-8).
defendant has been convicted and exhausted his appeal rights,
a court may presume that “he stands fairly and finally
convicted.” United States v. Frady, 456 U.S.
152, 164 (1982). A court may grant relief under 28 U.S.C.
§ 2255, but the statute “does not encompass all
claimed errors in conviction and sentencing.”
United States v. Addonizio, 442 U.S. 178, 185
(1979). Rather, collateral attack limits a movant's
allegations to those of constitutional or jurisdictional
magnitude, or those containing factual or legal errors
“so fundamental as to render the entire proceeding
invalid.” Short v. United States, 471 F.3d
686, 691 (6th Cir. 2006) (citation omitted); see
also 28 U.S.C. § 2255(a).