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Gardner v. United States

United States District Court, W.D. North Carolina, Asheville Division

November 18, 2019

KENNETH LEE GARDNER, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          MARTIN REIDINGER UNITED STATES DISTRICT JUDGE.

         THIS MATTER is before the Court on Petitioner's Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody [CR Doc. 1[1].

         I. BACKGROUND

         Petitioner Kenneth Lee Gardner (“Petitioner”) pleaded guilty to one count of conspiracy to possess with the intent to distribute less than 500 grams of a mixture or substance containing cocaine, all in violation of 21 U.S.C. §§ 841(a)(1) and 846. [CR Doc. 9: Amended Bill of Information; Id. at Doc. 13: Acceptance and Entry of Guilty Plea]. The Court sentenced Petitioner on May 20, 2010. The probation office prepared a Presentence Investigation Report (“PSR”) in advance of sentencing. [CR Doc. 19: Presentence Report]. Petitioner's Total Offense Level was 29. [Id. at ¶ 26]. Petitioner's criminal history category was VI. [Id. at ¶ 45]. The resulting guidelines imprisonment range was 151 to 188 months, and the statutory range was a term of imprisonment of not more than 20 years. [Id. at ¶¶ 73, 74]. The Court sentenced Petitioner to a term of 120 months' imprisonment and a term of 3 years of supervised release. [CR Doc. 56 at 2-3: Judgment]. Judgment was entered on Petitioner's conviction on June 18, 2010. [CR Doc. 56: Judgment]. Petitioner appealed his conviction and sentence to the Fourth Circuit Court of Appeals, which affirmed this Court's judgment. [CR Doc. 72].

         On May 20, 2016, Petitioner filed a Section 2255 Motion to Vacate, Set Aside, or Correct Sentence, which was denied and dismissed on the merits. [CR Docs. 83, 85]. The Fourth Circuit Court of Appeals dismissed Petitioner's subsequent appeal and denied a certificate of appealability. [CR Docs. 86, 88]. On or about January 16, 2018, Petitioner completed his custodial term of incarceration, and his three-year term of supervised release began. [See CR Doc. 90 at 1: Petition for Warrant for Offender Under Supervision]. On October 11, 2018, the U.S. Probation Office filed a supervised release violation alleging that Petitioner committed several new law violations in relation to a motor vehicle accident that was caused by Petitioner. These violations included driving while impaired and failure to stop at a red light, both Grade C violations; and misdemeanor possession of a Schedule II controlled substance and leaving the scene of an accident, both Grade B violations. [CR Doc. 90 at 2]. A United States Magistrate Judge thereafter issued a warrant for Petitioner's arrest. [Id. at 6].

         Petitioner was arrested on December 20, 2018. Petitioner's initial appearance on the revocation of supervised release was held on December 21, 2018. On March 31, 2019, the Court held a hearing on the revocation of Petitioner's supervised release. Present at the hearing were Petitioner, his attorney, and counsel for the Government. At the hearing, Petitioner admitted to the new law violations. [Doc. 107 at 3: Revocation Hearing Tr.]. The Court determined, and counsel for both parties agreed, that based on Petitioner's criminal history category of VI and the statutory maximum for a term of incarceration after a class C felony, the guideline range was limited to between 21 and 24 months. [Id. at 3-4]. After hearing arguments of counsel and Petitioner's statement to the Court, the Court revoked Petitioner's supervised release and sentenced Petitioner to a term of 14 months' imprisonment, below the guideline range. [Id. at 4-13]. The Court also noted, after being advised by his courtroom clerk, that an outstanding balance of $14, 504 for attorney fees remained from the prior Judgment and that the Court would include that balance in the judgment on Petitioner's revocation proceeding. [Id. at 16-17].

         Petitioner filed the instant § 2255 Motion to Vacate on September 20, 2019 challenging his revocation proceedings and the judgment thereon.[2][CV Doc. 1].

         II. STANDARD OF REVIEW

         A federal prisoner claiming that his “sentence was imposed in violation of the Constitution or the laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.” 28 U.S.C. § 2255(a).

         Rule 4(b) of the Rules Governing Section 2255 Proceedings provides that courts are to promptly examine motions to vacate, along with “any attached exhibits and the record of prior proceedings . . .” in order to determine whether the petitioner is entitled to any relief on the claims set forth therein. After conducting its initial review and examining the record in this matter, the Court finds that the arguments presented by Petitioner can be resolved without an evidentiary hearing based on the record and governing case law. See Raines v. United States, 423 F.2d 526, 529 (4th Cir. 1970).

         III. DISCUSSION

         Petitioner raises four claims in his motion to vacate. Specifically, Petitioner argues that: (1) the Court violated Petitioner's Sixth Amendment right by “us[ing] an element to increase the penalty of the original crime of conviction with-out [sic] the juries findings of the fact beyond a reasonable doubt, ” (2) his counsel was ineffective for leaving the courtroom “while restriction and fines for attorneys fees were retroactively applied to the original sentence of 2010, ” (3) the Court erred in allowing the proceedings to continue without the presence of counsel during the “assessment” of the fees, and (4) the Court abused its discretion in allowing the clerk to discover the fine that remained outstanding from the original Judgment. [CV Doc. 1 at 4-8]. Petitioner, however, does not specify what relief he is seeking from the Court. [CV Doc. 1 at 12].

         In evaluating the Petitioner's motion, the Court will group the claims into the following two categories: (1) Petitioner's claim regarding the Court's alleged decision to increase the penalty for his original crime of conviction and (2) Petitioner's claims regarding the attorney fees.

         A. Penalty Increase ...


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