United States District Court, E.D. Washington
ORDER DENYING § 2255 MOTION
FREMMING NIELSEN, SENIOR UNITED STATES DISTRICT JUDGE
the Court is Movant's 28 U.S.C. § 2255 Motion to
Vacate, Set Aside or Correct Sentence. (ECF No. 107). The
Motion is submitted by Mr. Kinard, who is appearing pro
se in these proceedings. Mr. Kinard alleges that his
counsel performed ineffective assistance of counsel and that
the Court's Guideline calculations were in error. In the
previous Order, ECF No. 109, the Court found that Mr. Kinard
had not stated a claim for ineffective assistance of counsel
because he didn't establish that failure to file motions
prejudiced him in any way. However, the Court did ask that
the Government respond to his challenge to the Court's
calculation of the Guidelines and application of the career
offender Guideline specifically.
noted in the earlier order, Mr. Kinard established that (1)
he is in custody under a sentence of this federal court; (2)
his request for relief was timely. The Court now examines
whether the conviction or sentence violates federal law, or
the sentence or judgment is otherwise open to collateral
attack. 28 U.S.C. § 2255. Mr. Kinard argues that the
Court misapplied the Guidelines. Specifically, Mr. Kinard
argues the Court could not use the state conviction as a
predicate for career offender and that the drug amount was
improperly calculated. At the sentencing hearing the Court
found that Mr. Kinard qualified as a career offender pursuant
to § 4B1.1(c).
A defendant is a career offender if (1) the defendant was at
least eighteen years old at the time the defendant committed
the instant offense of conviction; (2) the instant offense of
conviction is a felony that is either a crime of violence or
a controlled substance offense; and (3) the defendant had at
least two prior felony convictions of either a crime of
violence or a controlled substance offense.
Court adopted the Presentence Investigation Report [PSR]
finding that Mr. Kinard is a career offender pursuant to
U.S.S.G. § 4B1.1 based on two predicate drug trafficking
offenses, one Federal conviction for Possession with Intent
to Distribute 5 grams or more of a Mixture of Substance
Containing Cocaine Base in 2008, and a state conviction for
Possession with Intent to Deliver Marijuana from 2002.
also included reference to the Base Level Mr. Kinard would
have been subject to based on the drug quantity Guidelines.
In the Plea Agreement, Mr. Kinard agreed that, "the
Defendant's base offense level is twenty-eight (28) based
on the amount of pure methamphetamine, and the mixtures of
substances containing methamphetamine and heroin involved in
the Defendant's relevant conduct." ECF No. 103.
However, the amount of drugs did not determine Mr.
Kinard's applicable Guideline range.
sentencing hearing the Court reviewed Mr. Kinard's
lengthy criminal history noting that he epitomizes a career
offender. The Court noted several convictions for a variety
of crimes including assault and drug distribution. The
current conviction appeared to be a continuation of the same
path Mr. Kinard has followed for his entire adult life.
Court properly implemented the Guidelines in effect at the
time of sentencing. However, the Court notes that the state
conviction now could not serve as a predicate due to a recent
decision by the Ninth Circuit finding that Washington
State's criminal statutes are indivisible and too broad
to serve as predicate offenses. See United States v.
Valdivia-Flores, --- F.3d --- (9th Cir. December 7,
2017). The Government argues that Mr. Kinard's 1993
Federal conviction qualifies as a predicate offense. The
Court disagrees. Only those convictions that earn points
pursuant to § 4A.1.2 can serve as predicate convictions
for § 4B1.2. See § 4B1.3 App. Note 3 and §
4A1.2 App. Note 3(A). The Court acknowledges that if Mr.
Kinard were sentenced today, he would likely not qualify as a
career offender. However, it is not apparent that the Ninth
Circuit ruling applies retroactively to Mr. Kinard's
application of the Guidelines did not dictate a fair and
reasonable sentence in Mr. Kinard's case. The Court also
examined the 18 U.S.C. § 3553(a) factors and varied
significantly from the career offender Guideline range. Had
the Court relied solely on the drug quantity agreed in the
Plea Agreement, the Total Offense Level would have been 25
(Base Level 28 less 3 points for Acceptance of
Responsibility). With a criminal history category V, Mr.
Kinard's range would have been 100 to 125 months. Mr.
Kinard's sentence fell within this Guideline range. At
the sentencing, the Court addressed many factors justifying
why this was a fair and reasonable sentence regardless of the
Guideline range determined by the Court. The Court noted that
among other things, Defendant's age, community ties,
substance abuse issues, and family ties all suggested the
mandatory minimum sentence imposed by the Court was
appeal of this Order may not be taken unless this Court or a
circuit justice issues a certificate of appealability finding
that "the applicant has made a substantial showing of
the denial of a constitutional right." 28 U.S.C. §
2253(c)(2) (West 2013). This requires a showing that
"reasonable jurists would find the district Court's
assessment of the constitutional claims debatable or
wrong." Slack v. McDaniel, 529 U.S. 473, 484
(2000). Based on the Court's preceding analysis, the
Court concludes that jurists of reason may differ with the
Court's conclusion. Thus a certificate of appealability
Court has reviewed the file and Movant's Motion and is
fully informed. Accordingly, IT IS ORDERED
that Movant's Motion to Vacate, Set Aside or Correct
Sentence by a Person in Federal Custody Pursuant to 28 ...