United States District Court, D. South Dakota, Northern Division
OPINION AND ORDER DENYING MOTION TO VACATE AND ORDER DENYING CERTIFICATE OF APPEALABILITY
CHARLES B. KORNMANN, District Judge.
Petitioner, who is confined at the Federal Correctional Institution in Ray Brook, NY, filed a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. Petitioner pleaded guilty to illegal reentry after deportation and was sentenced on June 10, 2013, to 75 months custody. Petitioner did not appeal his conviction or sentence. Petitioner contends in his motion to vacate that he received ineffective assistance of trial counsel in failing to object to the imposition of certain criminal history points which resulted in a higher guideline sentencing range.
I have conducted an initial review of the motion pursuant to Rule 4 of the Rules Governing § 2255 Proceedings.
I. Ineffective Assistance of Counsel.
To support a claim of ineffective assistance of counsel, a two prong test must be met. "To succeed on this claim, [petitioner] must show ineffective assistance-that counsel's representation fell below an objective standard of reasonableness." Wilcox v. Hopkins , 249 F.3d 720, 722 (8th Cir. 2001) ( quoting Hill v. Lockhart , 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985)). Petitioner "must also prove prejudice by demonstrating that absent counsel's errors there is a reasonable probability that the result of the proceeding would have been different." Delgado v. United States , 162 F.3d 981, 982 (8th Cir. 1998), ( citing Strickland v. Washington , 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d (1984)) The burden of establishing ineffective assistance of counsel is on the petitioner. Delgado v. United States , 162 F.3d at 982. Petitioner "faces a heavy burden' to establish ineffective assistance of counsel pursuant to section 2255." DeRoo v. United States , 223 F.3d 919, 925 (8th Cir. 2000) ( quoting United State v. A el , 97 F.3d 1074, 1076 (8th Cir. 1996)).
Petitioner contends counsel was ineffective in failing to object to the imposition of two criminal history points which were assessed pursuant to Guidelines § 4A1.1(d) which provides:
Add 2 points if the defendant committed the instant offense while under any criminal justice sentence, including probation, parole, supervised release, imprisonment, work release, or escape status.
In the presentence investigation report, two points were assessed pursuant to the above section based upon defendant's February 18, 2009, harassment conviction in Greely, Colorado, and his resulting sentence of "18 months deferred sentence, term of probation, fines and costs." Defendant contends the two points were improperly assessed because there is no indication in the report that he was on probation for any period of time and certainly not until 2013.
Application Note 4 to § 4A1.1 provides, in relevant part:
Two points are added if the defendant committed any part of the instant offense (i.e., any relevant conduct) while under any criminal justice sentence, including probation...
The offense of illegal reentry under 8 U.S.C. § 1324 "begins on the date of reentry' and "is an ongoing offense that continues until a person is discovered by authorities." United States v. Delgado-Hernandez , 646 F.3d 562, 567 (8th Cir. 2011). For Guidelines purposes, defendant's relevant conduct is calculated from the date he last reentered the country and continues until he is discovered by authorities. Id. The relevant conduct of defendant's offense started on the date when the defendant re-entered the United States. We know that defendant was in the United States when he was arrested on February 17, 2009 in Greely, Colorado for harassment. The illegal reentry offense continued until his arrest on the federal warrant on February 5, 2013. Clearly, the relevant conduct of his federal offense was occurring on February 18, 2009, when he was placed on probation. It does not matter whether he was placed on probation for one hour or 18 months - he was sentenced to a period of probation and he committed the continuing offense of illegal reentry while on probation.
Counsel was not ineffective in failing to object to the imposition of the two criminal history points pursuant to Guidelines § 4A1.1(d) ...