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Jordan v. United States

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

October 10, 2019

UNITED STATES, Respondent.

          Magistrate Judge Steger



         Federal 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[1] and Jordan's § 2255 motion will be denied.


         On December 4, 2013, Manchester Police Department officers executed a search warrant on Petitioner's residence. (Crim. Doc. 351 at ¶ 34).[2] 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). (Id.).

         According 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).

         After 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 ¶ 95).

         On 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)).

         Petitioner 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.

         On 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).[3]

         The 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).


         After a 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).

         III. ...

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