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McCuiston v. United States

United States District Court, M.D. North Carolina

May 3, 2019

JOHN DAVID MCCUISTON, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          JOE L. WEBSTER, UNITED STATES MAGISTRATE JUDGE

         Petitioner John David McCuiston has brought a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. (Docket Entry 23.) In 2015, Petitioner pled guilty, pursuant to a plea agreement, to conspiracy to possess pseudoephedrine with intent to manufacture methamphetamine, in violation of 21 U.S.C. §§ 841(b)(1)(c) and 846, and was sentenced to 135 months of imprisonment. (Docket Entries 1, 13-14, 21.) Petitioner did not appeal but instead filed the instant motion. The Government filed a response (Docket Entry 31) and Petitioner filed a reply (Docket Entry 33), a cross-motion for summary judgment (Docket Entry 34), a motion entitled “Affidavit and Affirmation and Motion to Order the Production of the Complete Presentence Report” (Docket Entry 35), and a motion to amend (Docket Entry 40). The matter is now ready for a ruling. See Rule 8, Rules Governing Section 2255 Proceedings.

         Discussion

         Petitioner's sole ground for relief is that “[d]efense attorney Robert McClellan deprived Movant of effective representation at sentencing.” (Docket Entry 23, Ground One.) The essence of Petitioner's ground is that counsel failed to object-or failed to educate Petitioner sufficiently so that he would know to object-to a No. of errors set forth in the presentence report and adopted by the Court at sentencing. As explained below, however, Petitioner's argument lacks merit.

         In order to prove ineffective assistance of counsel, a petitioner must establish, first, that his attorney's performance fell below a reasonable standard for defense attorneys and, second, that he was prejudiced by this performance. See Strickland v. Washington, 466 U.S. 668, 688, 691-92 (1984). A petitioner bears the burden of affirmatively showing deficient performance. See Spencer v. Murray, 18 F.3d 229, 233 (4th Cir. 1994). To establish prejudice, a petitioner must show that there is a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 694. Here, Petitioner has failed to point to any material errors either in the presentence report or at sentencing, nor has Petitioner demonstrated deficient performance or prejudice. His Strickland claim therefore fails and his motion brought under § 2255 should be denied.

         More specifically, Petitioner first argues that the proper guideline to apply to his 21 U.S.C. § 841 conviction was U.S.S.G. § 2D1.11, which governs the unlawful possession of a listed chemical, rather than § 2D1.1, which governs unlawful manufacturing. (Docket Entry 23 at 5 referencing Docket Entry 19, ¶ 25 and U.S.S.G. §§ 2D1.1 & 2D1.11 (2014).) Nevertheless, the cross-reference under § 2D1.11(c) actually refers back to 2D1.1. That section provides that, “[i]f the offense involved unlawfully manufacturing a controlled substance. . . [a court is to] apply 2D1.1 . . . .” U.S.S.G. § 2D1.11(c) (2014).[1] Beyond this, application n. 8 under § 2D1.11 explains that an “[o]ffense involved unlawfully manufacturing . . . [if] the defendant, or a person for whose conduct the defendant is accountable . . . completed the actions sufficient to constitute the offense of unlawfully manufacturing a controlled substance or attempting to [do so].” Id.

         As noted in the presentence report (Docket Entry 19, ¶¶ 18-19), witnesses indicated that they saw Petitioner cook methamphetamine. Moreover, in a written statement submitted to the Probation Officer by Petitioner, for which he received a downward adjustment for acceptance of responsibility, Petitioner admitted to taking pseudoephedrine “and oftentimes would cook that into methamphetamine for production or sale.” (Id., ¶¶ 23, 35.) Petitioner was properly held accountable pursuant to the cross-reference and any claim now that he did not use pseudoephedrine to manufacture methamphetamine is unpersuasive.

         Petitioner also disputes the calculation of his base offense level contending that he should only be held accountable for the pseudoephedrine which he personally purchased, rather than additional amounts obtained by others. (Docket Entry 23 at 5.) Notwithstanding the application of relevant conduct and coconspirator liability, the amount Petitioner now admits he should be held accountable for (106.38 grams) (id.) would result in a base offense level of 30. See U.S.S.G. 2D1.11(d)(5). This is the same base offense level as he was held accountable for under relevant conduct. (Docket Entry 19, ¶ 26.) Thus, based on his own admission of drug amounts, there could be no error in calculating the basic offense level.

         Petitioner next challenges that he was enhanced for the unlawful discharge of emissions. (Docket Entry 23 at 5-6.) As noted in the presentence report “[t]he production of methamphetamine is a hazardous process.” (Docket Entry 19, ¶ 12.) The presentence report, in paragraphs 10-12, sets forth information regarding methamphetamine production, which specifically noted the manufacturing process results in the release of ammonia gas, danger of inhalation of hydrochloric acid, and the creation of hazardous waste. (Id.) Petitioner now challenges the enhancement for unlawful discharge of emissions “as if he had actually used the pseudoephedrine products to manufacture methamphetamine.” (Docket Entry 23 at 5.) The wording of Petitioner's challenge contradicts the acceptance statement he gave to Probation during the presentence interview. (Docket Entry 19, ¶ 23) In his acceptance statement Petitioner acknowledged obtaining pseudoephedrine for himself and from others “for his use and production of methamphetamine.” (Id.) Any claim to the contrary in his current motion is unsupported. The production of methamphetamine creates hazardous emissions and Petitioner manufactured methamphetamine. (Id., ¶ 12.) Thus, the two-level application for unlawful discharge, emission, or release into the environment of hazardous or toxic waste was properly applied. (Id., ¶ 29.)

         Next, Petitioner challenges the enhancement for maintaining a premise for the purpose of manufacturing and distributing methamphetamine. (Docket Entry 23 at 5-6.) He acknowledged in his acceptance statement that he “would take the pseudoephedrine that was obtained, and oftentimes would cook that into methamphetamine for production or sale. . . [and] would cook the methamphetamine at various locations . . . .” (Docket Entry 19, ¶ 23.) Witnesses indicated that he cooked in a small building behind his house and at his house. (Id., ¶ 18.) Ms. Lemmons reported living with Petitioner and “witnessed him cooking on a daily basis.” (Id.) This enhancement was properly applied.

         Petitioner also challenges the enhancement for possession of a firearm under U.S.S.G. § 2D1.1(b)(1). (Docket Entry 23 at 5-6.) As noted in paragraph 14 of the presentence report, during a controlled purchase of methamphetamine, Petitioner discussed firearms for sale and told the confidential source that he carried a .40 caliber Browning. (Id., ¶ 14.) Two witnesses, also reported that Petitioner carried a .40 caliber Smith and Wesson. (Id., ¶ 19.) This evidence supports the enhancement under § 2D1.1(b)(1) that a dangerous weapon was possessed, which requires application of two points “if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense.” U.S.S.G. § 2D1.1, n.11(A) (2014).

         “Affidavit and Affirmation and Motion to Order Production of the Complete Presentence Report”

         Petitioner has also filed a motion in which he requests a copy of his presentence report. (Docket Entry 35.) In support, Petitioner asserts that he needs this report because of “newly discovered facts” in the form of “a) No. duly constitutional delegation of authority order; b) No criminal referral; c) Ineffective assistance of counsel; d) Collusion between Claimant's attorney('s) and the prosecution team which violates the separation of powers doctrine/clause; e) The use of multiple rotating jurisdictions to secure a fraudulent grand jury, and then a fraudulent conviction.” (Id. at 2.) These allegations are vague, conclusory, and unsupported and do not show a particularized need or good cause for the production of the presentence report. See Nickerson v. Lee, 971 F.2d 1125, 1136 (4th Cir. 1992), abrog'n on other grounds ...


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