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Dressen v. United States

United States District Court, D. South Dakota, Southern Division

December 9, 2019

CHAD DOUGLAS DRESSEN, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER ADOPTING THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION IN FULL AND DISMISSING THE MOTION IN PART

          KAREN E. SCHREIER UNITED STATES DISTRICT JUDGE

         Movant, Chad Douglas Dressen, moves to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. Docket 1.[1] The United States now moves to dismiss the petition. Docket 19. The matter was referred to United States Magistrate Judge Veronica L. Duffy under 28 U.S.C. § 636(b)(1)(B) and this court's October 16, 2014 standing order. The Magistrate Judge recommends that the United States's motion to dismiss be granted “in all respects except that an evidentiary hearing should be held on Mr. Dressen's ineffective assistance of counsel claim in which he asserts he asked his lawyer to file an appeal and his lawyer failed to file the appeal.” Docket 23 at 35. The United States did not object to the Magistrate Judge's report and recommendation. Docket 24. Dressen filed an amended objection to the report and recommendation. Docket 31. The court grants Dressen leave to amend his objections and now considers his amended objections (Docket 31).

         FACTUAL BACKGROUND

         A full factual background was provided by the Magistrate Judge in her report and recommendation. Docket 23. Therefore, this court will only give a simple explanation and points to the Magistrate Judge's report and recommendation for the full background.

         Dressen was indicted with a co-defendant for conspiracy to distribute 50 grams or more of a mixture and substance containing methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 846. See Cr. Docket 1. Dressen obtained private counsel, D. Sonny Walter. See Cr. Docket 40. The government filed an information under 21 U.S.C. § 851(a) to seek an increased punishment because Dressen had a prior felony drug conviction. Cr. Docket 72. The conviction set forth in the § 851(a) information was for fifth-degree possession of drugs in Lincoln County, Minnesota on June 26, 2015 (hereinafter referred to as Fifth-Degree Possession). Id.

         Dressen signed a plea agreement. Cr. Docket 73. He agreed to plead guilty to the indictment, that carried a penalty of 120 months mandatory minimum imprisonment and a possible maximum of up to life imprisonment. Id. at 2. The plea agreement states “[t]he Defendant agrees that he was convicted of this offense and further agrees not to challenge the enhanced penalty based on this prior conviction [referencing the Fifth-Degree Possession.]” Id. at 6. Under the plea agreement, Dressen waived his right to appeal any non-jurisdictional issues unless the court sentenced him higher than his advisory guideline range (either by variance or departure) under the United States Sentencing Guidelines (U.S.S.G.). Id. at 7.

         At the change of plea hearing, Dressen admitted that he had been convicted of Fifth-Degree Possession in Minnesota (used for the § 851(a) information) and that this conviction was final. Cr. Docket 98 at 9-11. Walter, Dressen's attorney, filed nine objections for the draft presentence report (PSR). Cr. Docket 89. Walter objected to the drug quantity calculations (that affected the base-offense level) and to the base-offense level of 38. See id. He argued that the base-offense level should have been a 29 and the criminal history category was III. Id. ¶ 9. Walter also objected to the two-point increase based on Dressen engaging in a high-speed chase with law enforcement and argued that Dressen's actions did not constitute a grave risk to public safety. Id. ¶ 6. The high-speed chase was established through law enforcement investigative reports. See Cr. Docket 92. The drug calculation was based on information provided by a confidential source, sources of information, and a named individual who all had knowledge of Dressen's drug trafficking activities. See Id. at 1-2. Dressen also spoke to law enforcement about his drug calculations. Cr. Docket 91 ¶14.

         The probation officer did not change the PSR in light of the objections. See Cr. Docket 92. At the sentencing hearing, Walter withdrew his objections to the PSR and the United States did not object but noted that the parties had stipulated to a drug quantity that resulted in a base-offense level of 36. Cr. Docket 100 at 3-4. At the sentencing hearing both Walter and the United States agreed that the Dressen fell within criminal history category III. Id. at 4-5. After other enhancements and reductions, the total offense level was determined to be a 35 and the criminal history category was III resulting in a U.S.S.G. range was 210-262 months with a mandatory minimum of ten years. Id. at 5. Although Walter withdrew Dressen's objections to the PSR, he argued at the sentencing hearing that Dressen is a “blowhard” and “has a habit of puffery.” Id. Walter argued that Dressen was entitled to a downward variance because “three-quarters of the conduct” that went into the calculation of the base-offense level was conduct that occurred 10 years ago and was not within the range of the factual basis statement. Id. at 5-6. Regardless of these assertions, Dressen was sentenced to 210 months imprisonment, within and at the bottom of the U.S.S.G. range. Id. at 9-10.

         Dressen filed a pro se motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. Docket 1. He argues that his counsel, Walter, was ineffective when he failed to file a notice of appeal after Dressen requested him to do so and for failing to object to the calculation of the U.S.S.G. sentencing range. Docket 1 at 3-4; Docket 2 at 3-7. In the report and recommendation, the Magistrate Judge recommends that the United States's motion to dismiss (Docket 19) be granted “in all respects except that an evidentiary hearing should be held on Mr. Dressen's ineffective assistance of counsel claim in which he asserts he asked his lawyer to file an appeal and his lawyer failed to file the appeal.” Docket 23 at 35.

         STANDARD OF REVIEW

         The court's review of a magistrate judge's report and recommendation is governed by 28 U.S.C. § 636 and Rule 72 of the Federal Rules of Civil Procedure. The court reviews de novo any objections to the magistrate judge's recommendations with respect to dispositive matters that are timely made and specific. 28 U.S.C. § 636(b)(1)(B); Fed.R.Civ.P. 72(b). In conducting its de novo review, this court may then “accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1); United States v. Craft, 30 F.3d 1044, 1045 (8th Cir. 1994).

         DISCUSSION

         I. Ineffective Assistance of Counsel

         A. ...


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