United States District Court, D. South Dakota, Southern Division
ORDER ADOPTING THE MAGISTRATE JUDGE'S REPORT AND
RECOMMENDATION IN FULL AND DISMISSING THE MOTION IN
E. SCHREIER UNITED STATES DISTRICT JUDGE
Chad Douglas Dressen, moves to vacate, set aside, or correct
his sentence under 28 U.S.C. § 2255. Docket
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
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
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.
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.
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
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.
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.
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.
Ineffective Assistance of Counsel