USA v. Augustine

DISTRICT COURT OF THE VIRGIN ISLANDS
DIVISION OF ST. CROIX
║
JAHMALL AUGUSTINE, 	║
║
Petitioner, 	║
║ 	1:14-cr-00042
v. 	║
║
UNITED STATES OF AMERICA, 	║
║
Respondent. 	║
________________________________________________ ║
TO: 	Jahmall Augustine, #09485-094, pro se
FCI Bennettsville
Federal Correctional Institution
P.O. Box 52020
Bennettsville, SC 29512
David White, Esq., AUSA
REPORT AND RECOMMENDATION
THIS MATTER came before the Court upon the Order (ECF No. 96) of Chief Judge
Wilma A. Lewis in Criminal No. 14-00042 referring Petitioner Jahmall Augustine’s pro se
Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (ECF No. 65) and
Respondent’s Motion to Dismiss of the United States to the Motion to Vacate of Jahmall
Augustine (ECF No. 85) to the undersigned for a report and recommendation. For the
reasons that follow the undersigned recommends that Petitioner’s motion be denied and
that Respondent’s motion be granted.
I. BACKGROUND
As the parties are familiar with the underlying facts of this case, only those facts
relevant to this discussion will be recited. In April of 2014, the Grand Jury of the District
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Court of the Virgin Islands returned a three-count indictment charging that, while he was
an inmate at Golden Grove Correctional Facility, Jahmall Augustine possessed prison
contraband and possessed marijuana in violation of United States laws. Criminal No. 14-
00030, (ECF No. 1).
The following month, in an unrelated encounter with police, Augustine was arrested
and charged with four crimes, to wit: (1) felon in possession of a firearm; (2) possession
with intent to distribute; (3) possession of firearm in furtherance of drug trafficking crime;
and (4) unauthorized possession of firearm. Criminal No. 14-00042, (ECF No. 11).
Following negotiations between himself, his court-appointed attorney, and the
Assistant United States Attorney assigned to the matters, Augustine agreed to plead guilty
to Count 1 in each of the cases. Plea Agreement, Criminal No. 14-00030, (ECF No. 65) and
Plea Agreement, Criminal No. 14-00042, (ECF No. 38). As part of his plea agreements,
Augustine waived his right to appeal any sentence within the maximum provided in the
statutes of conviction.
Augustine (hereinafter Petitioner) was sentenced in both matters on February 13,
2015. On August 14, 2015, Petitioner filed the subject motion pursuant to 28 U.S.C. § 2255
citing ineffective assistance of counsel and claiming that (1) his attorney was ineffective
because Petitioner received a greater sentence than what was agreed to in the plea
agreement and (2) his attorney was ineffective for failing to file an appeal despite
Petitioner’s direction to do so. Criminal No. 14-00042, (ECF No. 65). On April 25, 2017, the
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Government filed a motion to dismiss Petitioner’s § 2255 motion on the basis that
Petitioner’s motion is meritless. Criminal No. 14-00042, (ECF No. 85).
II. LEGAL STANDARD
"Motions pursuant to 28 U.S.C. § 2255 are the presumptive means by which federal
prisoners can challenge their convictions or sentences that are allegedly in violation of the
Constitution.” Okereke v. United States, 307 F.3d 117, 120 (3d Cir. 2002) (citing Davis v.
United States, 417 U.S. 333, 343 (1974)). A § 2255 petition is not a substitute for an appeal.
Hodge v. United States, 554 F.3d 372, 378-79 (3d Cir. 2009) (citing Bousley v. United States,
523 U.S. 614, 621 (1998)). However, a petitioner properly raises ineffective assistance of
counsel arguments under § 2255 rather than on direct appeal. See, e.g., Massaro v. United
States, 538 U.S. 500, 504 (explaining it is "preferable" that such claims be considered on
collateral review where the record for such claims may be properly developed); accord
United States v. Garcia, 516 F. App’x 149, 151 (3d Cir. 2013) ("It is well-settled that this
Court ordinarily does not review claims of ineffective assistance of counsel on direct
appeal.").
Claims of ineffective assistance of counsel must satisfy the two-part test set-forth in
Strickland v. Washington:
First, the defendant must show that counsel's performance was deficient.
This requires showing that counsel made errors so serious that counsel was
not functioning as the "counsel" guaranteed the defendant by the Sixth
Amendment. Second, the defendant must show that the deficient
performance prejudiced the defense. This requires showing that counsel's
errors were so serious as to deprive the defendant of a fair trial, a trial whose
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result is reliable. Unless a defendant makes both showings, it cannot be said
that the conviction or death sentence resulted from a breakdown in the
adversary process that renders the result unreliable.
Strickland v. Washington, 466 U.S. 668, 687 (1984).
A court reviews a petitioner’s claim under the “strong presumption that the
counsel’s conduct falls within the wide range of reasonable professional assistance.” Id. at
688. The Third Circuit concurs that, “a fair assessment of attorney performance requires
that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the
circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s
perspective at the time.” Rainey v. Varner, 603 F.3d 189, 197 (3d Cir. 2010) (quoting
Strickland at 689).
Where a Defendant has signed an appellate waiver, a court must determine (1)
whether Defendant knowingly and voluntarily waived his appellate rights; and (2) whether
enforcing the waiver would result in a miscarriage of justice. United States v. Mabry 536
F.3d 231, 237 (3d Cir. 2008).
Pro se pleadings are construed liberally and must be held to "less stringent
standards than formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520
(1972).
III. DISCUSSION
The central thesis of this collateral attack is that counsel provided constitutionally
ineffective assistance by failing to file an appeal challenging Petitioner’s sentence.
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Petitioner claims that he received a sentence that was longer than the sentence promised in
the plea agreement and consequently, his attorney should have filed an appeal.1 In an
affidavit attached to his motion, Petitioner states that after receiving the presentence
investigation report and seeing that it recommended a longer sentence than the plea
agreement contemplated, he attempted to reach his attorney to discuss the same but was
unable to reach him. Petitioner further states that at his sentencing he told his attorney that
his sentence was “a mistake saying, ‘I didn’t plea to 57, I pled to 37 which was on the paper
he made me sign.’” (ECF No. 64-4) at ¶ 2.2 Petitioner also states that after sentencing he
phoned his attorney and requested an explanation regarding the disparity between what
was stated in the plea agreement and the sentence that Petitioner received. Finally,
Petitioner presents a letter sent to him by his attorney purporting to show that counsel
refused to file an appeal despite having been so directed by his client.
Even if Petitioner was legitimately dissatisfied with the communication he received,
Attorney Moorhead’s representation was within the “wide range of professionally
competent assistance” expected of counsel. Strickland, 466 U.S. at 690. This conclusion is
supported by the record.
First, in the plea agreement, the parties acknowledged that the criminal history
category II, on which the plea agreement sentencing range was calculated, was based on
1 Augustine’s appellate waiver will be discussed below. Augustine did not waive his right to petition under §
2255 on a claim of ineffective assistance of counsel.
2 Hereinafter, all ECF numbers refer to Criminal No. 14-00042.
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“available information.” (ECF No. 38) at ¶ f. This language indicates that the parties,
including the Petitioner, were aware that the criminal history category might change once
the presentence report was complete.
Second, it would have been futile for Attorney Moorhead to object to this element of
the presentence report as the criminal history increase from category II to category III was
not due to an error. Rather, the increase from category II to category III was due to the fact
that Petitioner was on probation when he committed the offense to which he pled guilty.3
(ECF No. 52) at 2-3. Petitioner does not challenge this element of his presentence report on
the basis that the criminal history is incorrect; he only challenges the resultant sentence.
Third, Petitioner states only that he wanted his attorney to “fix it” referring to the
perceived “mistake” in his sentence. (ECF No. 65-4) at ¶¶ 1, 2. At no point in his motion or
affidavit does Petitioner state that prior to or at sentencing he notified his attorney that he
wanted to withdraw his plea. The plea agreement contains an agreement to recommend a
sentence “at the low end of the guideline range.” (ECF No. 38) at ¶ l. Based on a criminal
history category II, the plea agreement contemplated an advisory guideline range of 27-33
months imprisonment in Crim. No. 2014-42 and 10-16 months imprisonment in Crim. No.
2014-30. (ECF No. 38) at ¶ g and Crim. No. 30, (ECF No. 65) at ¶ g. With a criminal history
category III, Petitioner’s total guideline range was 57-71 months. (ECF No. 85-11) at 6, ¶
3 Counsel cannot be found ineffective for failing to make a meritless objection. See, e.g. Moore v. Deputy Comm'rs
of SCI-Huntingdon, 946 F.2d 236, 245 (3d Cir. 1991).
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50. Petitioner was sentenced to 57 months, the bottom of the guideline range. (ECF No. 61)
at 2.
Fourth, counsel’s letter explains in plain language the reasons for Petitioner’s
sentence and why counsel maintained a good-faith belief that even with a criminal history
of III, and, consequently, a longer sentence than Petitioner would have liked, Petitioner
actually received a much lighter sentence than he would have if tried and convicted on all
four counts. And, given the evidence that would have been presented at trial, the plea
agreement, even with a 57 months sentence, was the best option available. (ECF No. 65-3).
Fifth, in the letter presented by Petitioner, his attorney explains the rationale for not
filing an appeal, writing,
On March 9, 2014, I received your letter dated February 23, 2014 in which
you stated that you wanted to appeal your sentence. As you know, you had
14 days after your sentence to appeal your sentence. Judge Finch reminded
you of this at your sentencing hearing. You were sentenced on February 13,
2014. You're right to appeal tolled on February 27, 2014 well before I even
received your letter. Additionally, as you know, you waived your right to
appeal your sentence. I cannot file a frivolous appeal.
I hope this answers your questions. I am convinced that you did the best
thing by accepting the Plea Agreement which I negotiated. You would have
lost both trials had you gone to trial. Your sentence would have been a lot
more than 69 months. You also need to keep in mind that if you are
resentenced you can receive a sentence much longer than 67 months as the
Court is not bound by your Plea Agreement. Appealing your sentence makes
no sense whatsoever.
Motion, (ECF No. 65-3) at 3-4 (grammatical and date errors in original) (emphasis added).
Sixth, Petitioner’s plea agreement includes the following clause:
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The defendant is aware that Title 18, United States Code, Section 3742
affords a defendant the right to appeal the sentence imposed. Acknowledging
all this, the defendant knowingly waives the right to appeal any sentence
within the maximum provided in the statute(s) of conviction or the manner in
which that sentence was determined, . . . the defendant expressly waives the
right to petition under 28 U.S.C. Section 2255, except his right to claim
ineffective assistance of counsel. The defendant has discussed these rights
with the defendant's attorney. The defendant understands the rights being
waived, and the defendant waives these rights knowingly, intelligently, and
voluntarily.
Plea Agreement, (ECF No. 38) at 6 (emphasis added). Petitioner initialed the lower right-
hand corner of this page of the plea agreement and signed the plea agreement, dated
August 24, 2014. Id. at 7.
After liberally construing Petitioner’s § 2255 motion and examining the record, the
Court concludes that Petitioner has failed to satisfy the first prong of Strickland as
Petitioner has failed to show how Attorney Moorhead’s representation was unreasonable,
and thus, constitutionally inefficient. As Petitioner has failed to show that his counsel's
representation was deficient, the Court need not examine whether Petitioner was
prejudiced by counsel’s performance.
This Court’s finding that counsel’s representation was objectively reasonable is
based in-part on the appellate waiver contained in the plea agreement. Accordingly, the
Court will review the terms of the plea agreement and the sentencing transcript to
determine whether the appellate waiver was knowing and voluntary and whether
“enforcement would work a miscarriage of justice.” Mabry, 536 F. 3d at 237.
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As noted above, Petitioner initialed the lower right-hand corner of the page that
contained the appellate waiver, which read, in part: “the defendant knowingly waives the
right to appeal any sentence within the maximum provided in the statute(s) of conviction
or the manner in which that sentence was determined.” (ECF No. 38) at 6. He signed the
plea agreement affirming that he entered into the agreement “knowingly, voluntarily, and
upon advice of counsel.” Id. at 7.
When the plea agreement was signed, the understanding of all of the parties was
that the then-Defendant would be sentenced to 37 months. However, at sentencing, defense
and government counsels’ concurrence that a 57 months sentence was now appropriate
was explained:
MR. MOORHEAD: These matters, Your Honor, are unusual in a sense that for
the first time that I can think of, the U.S. Attorney and I are in complete
agreement with regards to the calculations in the presentence report in both
cases. The only correction or comment we have to make in regards to the
presentence report has to do with, actually has to do with number 30, so I'll
deal with that later. The parties, we're here pursuant to a plea bargain
agreement that was signed by Mr. Augustine and the People. It was
represented, we agreed, the People agreed to make a recommendation at the
lower end of the sentencing guidelines in both cases. In Criminal No. 40, the
sentencing calculations as prepared by the Office of Probation comes out to
57 to 71 months.
So accordingly, we would ask that the Court adopt the recommendation of
the parties and sentence Mr. Augustine to the lower end of that, not to exceed
57 months.
. . . .
MR. MOORHEAD: Additionally, for the record, I might note, the presentence –
plea bargain agreement is before the Court and the way it was written, the
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standard language that was used was, I believe it stated that if the guidelines,
if the calculations is this, then the sentence will be this. And at the time we
took the plea it was represented that for Criminal No. 42 that those
calculations would be 37. However, the if, which is the operative word there,
proved not to be the proper calculations. So what we have here is a higher
sentence than what was represented at the time we took the plea. So the
[plea]- bargain agreement stated if the category is -- I don't have it in front of
me -- then the sentence would be 37 months. But there is no violation of the
presentence report, because of the operative word if. The government and I
were in error, at that time.
The same thing goes for Criminal No. 30, those calculations increase by two
months. At the time it was ten months to fourteen, it appeared to be twelve
months to sixteen. But be that as it may, Your Honor, we believe that it is still
a very favorable plea bargain agreement. We do not wish -- and there is no
basis to withdraw it, at this time.
That's our recommendation, Your Honor. I ask that the Court adopt the
recommendations of the parties.
THE COURT: Counsel, it is my understanding that you agreed in sentencing
this, these two cases should be consecutive.
MR. MOORHEAD: That was part of the plea bargain agreement, yes, Your
Honor. And there would be a recommendation that they both be at the lower
end of the guidelines. But the operative word is consecutive, yes.
THE COURT: Very well.
Sentencing Transcript Excerpt, February 13, 2015, pp. 2-3, 7-9.
That the waiver was narrowly tailored; that Petitioner was sentenced within the
maximum provided in the statute of conviction;4 that the reason for the difference between
4 “The parties understand that the Court may impose any sentence, up to the statutory maximum, regardless of
any guideline range computed, and that the Court is not bound by the position of the parties.” (ECF No. 38) at
4. “Count 1 charges a violation of Title 18, United States Code, Section 922(g)(1 ), which carries a sentence of 0
to 10 years of incarceration . . . .” Id. at 2-3.
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the sentence proposed in the plea agreement and the sentence imposed by the Court was
rational and justified; and because Petitioner was apprised on more than one occasion as to
the reason for the change from a 37 months sentence to a 57 months sentence, the Court
finds that Petitioner’s acceptance of the appellate waiver was knowing and voluntary and
enforcement of the appellate waiver would not work a miscarriage of justice in this case.
Respondent argues that Petitioner’s motion should be dismissed because
“Augustine’s counsel did not render ineffective assistance in failing to file a notice of appeal
because such an appeal would have been frivolous . . . .” (ECF No. 85) at 9-10. As discussed
above, the Court agrees. Accordingly, the Court will recommend that Respondent’s motion
to dismiss be granted.
A district court must hold an evidentiary hearing on a § 2255 motion when the
motion, records, and files in the case do not “conclusively show that the prisoner is entitled
to no relief.” United States v. McCoy, 410 F.3d 124, 131 (3d Cir. 2005) (italics in original). A
“District Court's decision not to hold an evidentiary hearing will be an abuse of discretion
unless it can be conclusively shown that [the petitioner] cannot make out a claim for
ineffective assistance of counsel.” United States v. Lilly, 536 F.3d 190, 195 (3d Cir. 2008).
Because the motion and the records in this case conclusively show that Petitioner is not
entitled to relief and, because it has been conclusively shown that Petitioner cannot make
out a claim for ineffective assistance of counsel an evidentiary hearing is not required. See
Cherys v. United States, 405 F. App’x 589, 591 (3d Cir. 2011).
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V. CONCLUSION
For the foregoing reasons, the following IS HEREBY RECOMMENDED:
1. 	Petitioner’s pro se Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or
Correct Sentence (ECF No. 65) be DENIED.
2. 	Respondent’s Motion to Dismiss of the United States to the Motion to Vacate
of Jahmall Augustine (ECF No. 85) be GRANTED.
3. 	There being no substantial showing that Petitioner’s constitutional rights
were violated, it is recommended that a certificate of appealability be
DENIED.5
Any objections to this Report and Recommendation must be filed in writing within
fourteen (14) days of receipt of this notice. Failure to file objections within the specified
time shall bar the aggrieved party from attacking such Report and Recommendation before
the assigned District Court Judge. 28 U.S.C. § 636(b)(1); LRCi 72.3.
ENTER:
Dated: November 21, 2018 	/s/ George W. Cannon, Jr.
GEORGE W. CANNON, JR.
MAGISTRATE JUDGE
5 When a district court issues a final order on a § 2255 motion, it must make a determination whether it will
permit a certificate of appealability. 3d Cir. L.A.R. 22.2; Fed. R. App. P. 22(b)(1).
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