Calhoun v. USA

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
UNITED STATES OF AMERICA,
Plaintiff,
Case No. 21-cr-02909-BAS-3
Case No. 25-cv-03486-BAS
ORDER DENYING
DEFENDANT’S MOTION TO
VACATE, SET ASIDE, OR
CORRECT SENTENCE UNDER
28 U.S.C. § 2255 (ECF No. 479)1
v.
STEPHEN CALHOUN,
Defendant.
Pursuant to the Plea Agreement, Defendant Stephen Calhoun pled guilty to one
count of RICO conspiracy, two counts of Hobbs Act robbery, and one count of
using/brandishing a firearm in relation to a crime of violence. (ECF No. 482.) The
Court sentenced him to 176 months in custody. (ECF No. 486-1, Ex. 2.)
Defendant now files a Motion seeking to vacate his conviction under 28 U.S.C.
§ 2255, claiming ineffective assistance of counsel. (ECF No. 479.) Defendant argues
that his attorney was ineffective, first, for failing to argue for a youthful offender
1 All Electronic Case Filing references are to the docket in Case No. 21-cr-02909-BAS-3.
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adjustment at sentencing and, second, for advising him that he would do no more
than five years in custody and would get credit for the time he had spent in state
custody. (Id.) The Government responds. (ECF No. 486.) For the reasons stated
below, the Court DENIES the Motion.
I. 	BACKGROUND
In the first six months of 2019, Defendant and a group of his cohorts from the
Lincoln Park Bloods gang (“LPK”) committed a series of violent robberies.
According to Defendant’s admissions during his guilty plea, he participated in three
robberies in support of his allegiance to LPK: two jewelry stores in which he smashed
glass jewelry cases and clerks were threatened with weapons, and one medicine shop
in which a codefendant held the clerk at gunpoint while Defendant jumped over the
counter and stole prescription bottles. In each robbery, Defendant admitted he knew
in advance that his co-conspirator would be armed to carry out the robbery. 	(ECF
No. 392, at § II.B.) 	The store clerk victims provided statements about the trauma
they had suffered because of the robberies. (Pre-Sentence Report (“PSR”) ¶¶ 53–60,
ECF No. 412.)
During this time period, also as part of his gang activity, Defendant and two of
his codefendants assaulted an individual, demanding, “Where you from?” while
proclaiming, “We from Lincoln.” (Pre-Sentence Report ¶¶ 30–33.) Defendant was
convicted of assault by means likely to produce great bodily injury in state court for
this conduct, was sentenced to four years, and spent 30 months in state custody before
he was turned over to the federal authorities for prosecution on this case. Assault by
means likely to produce great bodily injury is not a predicate act for the federal RICO
charge.
Despite Defendant’s young age at the time of the offense (18 years), he had
managed to rack up a lengthy criminal record as a juvenile. In 2014, a true finding
was made with respect to grand theft, tampering with a vehicle, and possessing
burglary tools. 	In 2015, there was a true finding for resisting an officer. 	In 2016,
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there was a true finding for car theft and burglary, and in 2017, there was a true
finding for assault with a deadly weapon. (PSR ¶¶ 104–13.)
Defendant and the Government reached a plea agreement, in which Defendant
agreed to plead guilty to the RICO conspiracy, two of the Hobbs Act robbery counts,
and one count of using/brandishing a firearm in relation to a crime of violence. (ECF
No. 392.) For this last charge, Defendant faced a mandatory minimum sentence of
seven years in custody, consecutive to any other term of imprisonment. 	(Id.) 	In
exchange, the Government agreed to dismiss two other counts of using/brandishing
a firearm in relation to a crime of violence, which would have increased Defendant’s
sentence by an additional mandatory minimum of seven years for each count, for a
total mandatory minimum sentence of twenty-one years, again consecutive to the
underlying sentence for the conspiracy and robberies. (Id.)
Defendant signed a written Plea Agreement in which he acknowledged that for
the count of using/brandishing a firearm, he faced a mandatory minimum custodial
term of seven years and a maximum term of life in prison. (ECF No. 392, at § III.)
He agreed that this prison term would be consecutive to any other term of
imprisonment imposed and that he was facing a maximum custodial term of 20 years
for the other three counts to which he was pleading guilty. (Id.)
In the Plea Agreement, Defendant averred that no one had made any promises
to him other than those in the Plea Agreement. (Id. at § VI.B.) And finally, an entire
section of the Plea Agreement was devoted to discussing the fact that the ultimate
sentence was within the sole discretion of the Judge:
The Government has not made and will not make any representation as
to what sentence Defendant will receive. Defendant understands that the
sentencing judge may impose the maximum sentence provided by statute,
and is also aware that any estimate of the probable sentence by defense
counsel is a prediction, not a promise and is not binding on the Court.
(Id. § XI (emphasis in original).)
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At his guilty plea hearing, the Magistrate Judge asked whether Defendant had
read the entire Plea Agreement or had it read to him, to which he responded,
“Absolutely.” 	(ECF No. 486-1, Ex. 1, at 4:15–17.) 	He was also told again by the
Magistrate Judge that he was facing a mandatory minimum sentence of seven years
and a maximum of life in custody, consecutive to any other term of imprisonment,
and Defendant said he understood. 	(Id. 9:6–15.) 	The Magistrate Judge confirmed
that the District Judge can impose the maximum sentence and does not have to follow
the Plea Agreement, and Defendant said he understood. 	(Id. 12:5–12.) 	Finally,
Defendant said no one had promised him anything other than what was in the Plea
Agreement and that he was satisfied with the representation of his attorney. 	(Id.
13:4–9, 14:20–23.)
At sentencing, during his colloquy, Defendant made a pitch for a lower
sentence because of his youth and for credit for the time he had spent on his state
sentence. 	(ECF No. 486-1, Ex. 2, at 7:7, 15.) 	The Court agreed that Defendant
should receive some consideration for the fact that he was “very young at the time”
he committed the offense. (Id. 13:18–21.) But the Court disagreed that Defendant’s
sentence should be reduced 30 months for the time he had spent in custody on the
state court conviction, explaining that Defendant’s conviction for assault was a
totally separate act from the three jewelry store/medicine shop robberies and that
assault did not count as a RICO activity. (Id. 11:4–11.)
In Defendant’s Sentencing Memorandum, defense counsel recommended a
sentence of 117 months, but at the sentencing hearing, defense counsel amended that
to 108 months or 9 years in custody. (Id. 5:3; ECF No. 433.) 	The Government
recommended a sentence of 180 months or 15 years. 	(ECF No. 431.) 	Ultimately,
the Court sentenced Defendant to a total of 176 months, finding “despite the fact that
you were only 18, you seem to have managed to chalk up a pretty lengthy record of
violent crime . . . you’re basically terrorizing the neighborhood and [these crimes
were] particularly egregious.” (ECF No. 486-1, Ex. 2, at 13:18–21.)
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II. 	ANALYSIS
“[A] defendant who pleads guilty upon the advice of counsel may only attack
the voluntary and intelligent character of the guilty plea by showing that the advice
he received from counsel was ineffective.” 	Lambert v. Blodgett, 393 F.3d 943, 979
(9th Cir. 2004) (quoting Hill v. Lockhart, 474 U.S. 52, 56–57 (1985)). 	Even in a
claim of ineffective assistance of counsel in a guilty plea, Defendant must meet the
Strickland test; that is, he must show, first, “that counsel’s assistance was not within
the range of competence demanded of counsel in criminal cases,” and second, that
he suffered actual prejudice as a result of this incompetence. 	Lambert, 393 F.3d at
979–80; Hill, 474 U.S. at 57–58.
“A deficient performance is one in which counsel made errors so serious that
[]he was not functioning as the counsel guaranteed by the Sixth Amendment.” Iaea
v. Sunn, 800 F.2d 861, 864 (9th Cir. 1986) (citing Strickland v. Washington, 466 U.S.
668, 687 (1984)). “Review of counsel’s performance is highly deferential and there
is a strong presumption that counsel’s conduct fell within the wide range of
reasonable representation.” United States v. Ferreira-Alameda, 815 F.2d 1251, 1253
(9th Cir. 1987). The court should not view counsel’s actions through “the distorting
lens of hindsight.” 	Hendricks v. Calderon, 70 F.3d 1032, 1036 (9th Cir. 1995)
(quoting Deutscher v. Whitley, 884 F.2d 1152, 1159 (9th Cir. 1989)).
In order to satisfy the second “prejudice” prong in a guilty plea case,
“defendant must show that there is a reasonable probability that, but for counsel’s
errors, he would not have pled guilty and would have insisted on going to trial.” Hill,
474 U.S. at 59. A plea agreement and advisement by the judge taking the guilty plea
alerting the defendant to the potential consequences of his guilty plea can cure an
attorney’s faulty prediction about a defendant’s likely sentence. 	Womack v. Del
Papa, 497 F.3d 998, 1003 (9th Cir. 2007).
Thus, in Dognaniere v. United States, 914 F.2d 165, 168 (9th Cir. 1990), the
Ninth Circuit found the district court properly denied a motion to vacate for
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ineffective assistance of counsel where the petitioner claimed his attorney told him
he would receive a sentence of not more than 12 years in custody, but the court
sentenced him to 15 years. The court explained that the petitioner “suffered no
prejudice from his attorney’s prediction because, prior to accepting his guilty plea,
the court explained that the discretion as to what the sentence would be remained
entirely with the court.” 	Id.; accord United States v. Garcia, 909 F.2d 1346, 1348
(9th Cir. 1990) (explaining that an erroneous sentencing prediction “does not entitle
a defendant to challenge his guilty plea” where the defendant was advised the court
was not bound by the sentencing agreement).
In this case, Defendant first claims that his attorney failed to argue for a
youthful offender adjustment at sentencing. However, Defendant himself raised the
issue of his youth. The Court then took into consideration that Defendant was “very
young at the time” he committed the offense, but the Court ultimately found that
“despite the fact that you were only 18, you seem to have managed to chalk up a
pretty lengthy record of violent crime. You’re basically terrorizing the neighborhood
and [these crimes were] particularly egregious.” (ECF No. 486-1, Ex. 2, at 13:18–
21.) 	Since the Court considered Defendant’s youth at the time of sentencing,
Defendant cannot show any prejudice from his attorney’s failure to raise this issue.
Second, Defendant claims that his attorney promised that Defendant would
receive no more than five years in custody and that he would get credit for the time
he spent in state custody. Defendant’s defense counsel rebuts this claim. (ECF No.
486-1, Ex. 3, ¶ 5.) The Court finds Defendant’s claim that his attorney told him he
would do no more than five years in custody to be patently incredible. 	Defendant
was told on multiple occasions that he was facing at least a seven-year mandatory
minimum sentence on top of the sentence for the underlying offenses, and each time,
Defendant stated he understood. (ECF No. 392, at § III; ECF No. 486-1, Ex. 1, at
4:15–17, 9:6–15.) Additionally, Defendant repeatedly said that no one had promised
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him anything other than what was in the Plea Agreement. (ECF No. 392, at § VI.B;
ECF No. 486-1, Ex. 1, at 4:15–17, 13:4–9, 14:20–23.)
Even if Defendant is to be believed that his attorney told him he would receive
no more than five years and that he would get credit for the time he spent in state
custody, he cannot show prejudice. Throughout his guilty plea, Defendant was told
that the ultimate sentence would be decided by the Court and that the Court was not
bound by the Plea Agreement. (ECF No. 392, § XI; ECF No. 486-1, Ex. 1, at 4:15–
17, 12:5–12.) Thus, any faulty prediction by his defense counsel was cured by both
the written Plea Agreement and the advisements made during his guilty plea.
III. 	CONCLUSION
For the reasons stated above, Defendant’s Motion to Vacate Under 28 U.S.C.
§ 2255 (21-cr-02909-BAS-3, ECF No. 479) and the Petition filed (25-cv-03486-
BAS) are DENIED. The Clerk of Court shall close the civil companion case in 25-
cv-03486-BAS.
IT IS SO ORDERED.
DATED: March 9, 2026
Hon. Cynthia Bashant, Chief Judge
United States District Court
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