United States District Court, D. South Dakota, Central Division
OPINION AND ORDER DISMISSING MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE UNDER 28 U.S.C. § 2255
ROBERTO A. LANCE, District Judge.
On July 12, 2011, a grand jury indicted Damon LaRoche (LaRoche) with one count of assaulting, resisting, and impeding a federal officer by inflicting bodily injury in violation of 18 U.S.C. § 111. CR Doc. 1. LaRoche entered into a plea agreement to a lesser charge, waived Indictment, and pleaded guilty. CR Doc. 19, 22, 39. LaRoche now has filed a pro se motion to vacate, set aside, or correct his conviction and sentence under 28 U.S.C. § 2255. CIV Doc. 1. This Court has conducted an initial evaluation of the motion, as required by the Rules Governing Section 2255 Proceedings for the United States District Courts, and finds that the Petition is subject to summary dismissal under Rule 4.
LaRoche pleaded guilty to one count of assaulting, resisting, or impeding a federal officer in violation of 18 U.S.C. § 111. CR Doc. 19. LaRoche admitted in a factual basis statement accompanying his plea agreement that on July 4, 2011, in Lyman County, South Dakota, he assaulted Bureau of Indian Affairs Agent Fred Bennett. CR Doc. 21. Agent Bennett had responded to a call concerning a passed out individual. CR Doc. 21. Agent Bennett was trying to rouse the individual when this person identified himself as LaRoche. CR Doc. 21. Agent Bennett then told LaRoche of a pending warrant for his arrest and attempted to arrest him. CR Doc. 21. LaRoche resisted arrest, scuffled with Agent Bennett, and bit Agent Bennett several times. CR Doc. 21. Agent Bennett suffered injuries from these bites. CR Doc. 21. The factual basis statement notes LaRoche's date of birth and age at the time of offense, but it does not state whether LaRoche is an "Indian" for Federal criminal law purposes or if the offense occurred in "Indian country." CR Doc. 21.
On September 7, 2011, this Court held a change of plea hearing. CR Doc. 39. At the outset of the hearing, LaRoche was placed under oath. CR Doc. 39 at 2-3. At the time of the change of plea hearing, LaRoche was thirty-six years old and had obtained a graduate equivalency degree. CR Doc. 39 at 3. He waived Indictment, stated that he was satisfied with his counsel's performance, acknowledged that he reviewed and signed the plea agreement, admitted the factual basis statement was accurate, and pleaded guilty to the charge contained in the Superseding Information. See CR Doc. 39.
On November 29, 2011, this Court held LaRoche's sentencing hearing. CR Doc. 40. Through his counsel, Laroche made five objections to the Presentence Investigation Report (PSR). CR Doc. 40 at 3. Some of the objections related to the number of bite marks and the victim impact portion of the PSR. Doc. 40 at 66-70. LaRoche had two additional objections which were more substantive. He objected to the PSR's application of the serious bodily injury enhancement under U.S.S.G. § 2A2.2(b)(2)(B). Doc. 40 at 71. This Court overruled that objection. Doc. 40 at 78.
The most difficult objection concerned whether the four-level enhancement for use of a dangerous weapon under U.S.S.G. § 2A2.2(b)(2)(B) is appropriate when the alleged "dangerous weapon[s]" are the defendant's own teeth. Doc. 40 at 79-80. Defense counsel filed a Sentencing Memorandum and Request for Downward Departure, CR Doc. 27, addressing this issue in detail before sentencing. In his Sentencing Memorandum, defense counsel sought to distinguish cases that supported the Government's theory and outlined possible internal contradictions within the Guidelines and Federal assault statutes that would result should this Court adopt the Government's position. See Doc. 27. At the sentencing hearing, defense counsel argued that the dangerous weapon enhancement under the Sentencing Guidelines should not apply when the alleged dangerous weapons are the defendant's own teeth. Doc. 40 at 80-97. This Court noted the logic in Defendant's argument that a dangerous weapon ought to be something external to the body. Doc. 40 at 82-95. However, this Court felt obliged to follow the United States Court of Appeals for the Eighth Circuit's decision in United States v. Moore , 846 F.2d 1163, 1167 (8th Cir. 1988), which had found teeth to be a "deadly or dangerous weapon" under 18 U.S.C. § 111(b), the title under which LaRoche was convicted. Doc. 40 at 94-97. This Court anticipated that if teeth were a dangerous weapon in the Eighth Circuit jurisprudence under § 111, then teeth were a dangerous weapon under § 2A2.2(b)(2)(B) in the Eighth Circuit. Doc. 40 at 78, 94-97.
Based on this Court's rulings on the Defendant's objections to the PSR, and LaRoche's Category V Criminal History, this Court then calculated a Guidelines range of 63 to 78 months. Doc. 40 at 105-06. This Court observed that it had "misgivings about how we get to that offense level through teeth being considered a dangerous weapon, ... but that does seem to be the ruling of the Eighth Circuit under the Moore case" and that "[t]he result would be different if this were the Ninth Circuit, or any other circuit besides the Fourth and the Eighth." Doc. 40 at 105-06. This Court then considered the remaining factors under 18 U.S.C. § 3553 and varied downward from the Guidelines range and imposed a custody sentence of 60 months. Doc. 40 at 109. Sixty months was three months below the bottom end of the Guidelines range with the dangerous weapon enhancement and nine months above the top of the Guidelines range had this Court not considered teeth to be a dangerous weapon. Doc. 40 at 109. This sentence was "not a matter of compromise" but instead reflected this Court's judgment as what is sufficient but not more than necessary after considering the 18 U.S.C. § 3553(a) factors, the crime, and the defendant's history. Doc. 40 at 109-10.
LaRoche timely appealed his sentence to the Eighth Circuit. He argued that this Court erred when it determined that the reasoning from Moore applied to definition of "dangerous weapon" in the Guidelines and when it applied the dangerous weapon enhancement for LaRoche's use of his own teeth. United States v. LaRoche , 700 F.3d 363, 364 (8th Cir. 2012). The Eighth Circuit stated that it was "not convinced that the decision in Moore dictates the meaning of dangerous weapon' under § 2A2.2(b)(2)(B)." Id . The Eighth Circuit noted that Moore interpreted whether teeth were a "dangerous or deadly weapon" as used in 18 U.S.C. § 111(b), but that the Guidelines provide their own definition of "dangerous weapon." Id . Thus, whether teeth can constitute a "dangerous weapon" under the Guidelines would "require independent analysis to determine whether the term dangerous weapon, ' as defined in the Guidelines, has the same meaning as dangerous weapon' in the statute at issue in Moore." Id . The Eighth Circuit did not reach that issue, however, because it concluded that even if teeth are not a dangerous weapon under § 2A2.2(b)(2)(B), any error committed by this Court was harmless. Id . This Court "made clear that it would impose the sentence of 60 months' imprisonment whether or not it applied the four-level increase under § 2A2.2(b)(2)(B)." Id.
On June 17, 2013, LaRoche timely filed this Motion to Vacate, Set Aside or Correct a Sentence by a Person in Federal Custody under 18 U.S.C. § 2255. CIV Doc. 1.
LaRoche's motion raises four grounds. Rule 4 of the Rules Governing Section 2255 Proceedings for the United States District Courts provides that "[i]f it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion and direct the clerk to notify the moving party." See also Kelley v. United States, No. CIV. 13-4064, 2013 WL 3282945, at *2 (D.S.D. June 26, 2013).
Many of LaRoche's claims involve alleged ineffective assistance of counsel. To establish a claim of ineffective assistance of counsel, the petitioner must show both that his counsel's performance was deficient and that the deficient performance prejudiced his defense. Strickland v. Washington , 466 U.S. 668, 687 (1984). To meet this two-pronged standard, the petitioner must show that "(1) his counsel's representation fell below an objective standard of reasonableness; and (2) there is a reasonable probability that, but for his counsel's unprofessional errors, the result of the proceeding would have been different." United States v. Ledezma-Rodriguez , 423 F.3d 830, 836 (8th Cir. 2005). The petitioner must "overcom[e] the strong presumption that defense ...