The opinion of the court was delivered by: Karen E. Schreier Chief Judge
ORDER ADOPTING REPORT AND RECOMMENDATIONS AND DENYING MOTION TO CORRECT SENTENCE
Petitioner filed a motion under 28 U.S.C. § 2255 to correct her sentence. Docket 422. Upon referral to Magistrate Judge Veronica L. Duffy, an evidentiary hearing was held on Petitioner's claims of ineffective assistance of counsel. Magistrate Judge Duffy then filed a report and recommendation, recommending that the court deny Petitioner's motion to vacate, set aside, or correct her sentence. Docket 457. Petitioner filed objections to the magistrate judge's report. Docket 458. For the reasons stated below, the court adopts the magistrate judge's report and recommendations in their entirety and denies Petitioner's motion to correct her sentence.
Petitioner claims that the assistance of her attorney at sentencing, David Dillon, was constitutionally deficient because of his failure to file objections to paragraphs in the presentence investigation report (PSR) which described her conduct as a supervisor and manager of the drug conspiracy and which imposed a three-level enhancement based on USSG § 3B1.1(b). Docket 422, 455.
Petitioner states that Mr. Dillon should have objected to paragraphs 11 and 27 of the PSR which discussed the facts related to Petitioner's conduct as a supervisor or manager in the conspiracy, and that his failure to do so resulted in a higher sentence than if he had filed an objection.
At the evidentiary hearing on Petitioner's motion, Mr. Dillon testified that he did not object to Paragraphs 11 and 27 because his investigation indicated that the facts in Paragraph 11 were accurate, and that under prevailing caselaw Petitioner's conduct qualified her for the three-level enhancement for her role in the offense. Docket 451 at 17-18, 24, 26-27. Instead, his tactic was to argue that, despite the presence of these facts, a three-level enhancement overrepresented her role in the offense, and to ensure that the court's sentence was based on an accurate understanding of the facts. Id. at 17-18, 26-27. Mr. Dillon also testified that he was concerned that a formal objection to Paragraph 11 would diminish his credibility with the court and would result in testimony from Petitioner's coconspirators. He believed it would be risky for the court to hear the testimony from the co-conspirators and that their testimony would likely confirm the contents of Paragraph 11. Id. at 23-24. For these reasons, Petitioner stated, he did not object to Paragraphs 11 or 27.
In her report and recommendations, the magistrate judge found that Mr. Dillon "made no error in failing to object to the leadership-role enhancement set forth in paragraph 11 of the PSR, let alone such a serious error that he was not functioning as Sixth Amendment counsel." Docket 457 at 9. She noted the factual investigation and legal research conducted by Mr. Dillon prior to his decisions to avoid a direct challenge to the application of the sentencing enhancement and to argue that the enhancement overestimated Petitioner's role in the offense. Id. at 9-10. Concluding that Mr. Dillon's conduct was "a principled approach based on sound trial strategy," the magistrate judge recommended that Petitioner's motion to correct her sentence be denied in its entirety. Id.
The court must make a de novo review "of those portions of the [Magistrate's] report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1); see also United States v. Lothridge, 324 F.3d 599 (8th Cir. 2003); Jones v. Pillow, 47 F.3d 251, 253 (8th Cir. 1995). 28 U.S.C. § 636(b)(1) requires that when a party objects to the report and recommendation of a magistrate judge concerning a dispositive matter, "[a] judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." Id.; see also Fed. R. Civ. P. 72(b).
Petitioner filed objections to the magistrate judge's report and recommendations, restating her arguments made at the evidentiary hearing and in her post-hearing memorandum. Docket 458 (objections); Docket 455 (post hearing memorandum). The court requested that Petitioner specify the particular page and paragraph numbers of the magistrate judge's report to which Petitioner objected. Docket 459. Petitioner has complied with this request. Docket 460.
1. Statement That Failure to Object Was Tactical
Petitioner objects to the magistrate judge's statement that Mr. Dillon's decision to not object to Paragraph 11 of the PSR was "tactical." Docket 460 at 1. Instead, petitioner argues that Mr. Dillon just responded affirmatively when the government asked him whether his decision not to object was "essentially the tactical decision which you made." Docket 451 at 26-27.
The court has conducted a de novo review of the record and has considered Petitioner's arguments, and it adopts the magistrate judge's conclusion that Mr. Dillon made a tactical ...