USA v. White

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA,
Plaintiff,
vs.
LONNIE JOHN WHITE,
Defendant.
ORDER DENYING
DEFENDANT’S AMENDED
MOTION TO VACATE UNDER 28
U.S.C. § 2255
Case No. 3:07-cr-00136-TMB
I. 	Introduction
Lonnie John White (“White”) moves pursuant to 28 U.S.C. § 2255 to vacate, set aside, or
correct his sentence, alleging ineffective assistance of counsel, due process violations,
prosecutorial misconduct, and sentencing entrapment.1 The government opposes, arguing that
White’s claims lack sufficient facts to meet the burden required for reversal.2 For the reasons
that follow, the Court DENIES White’s motion at Docket 219.
II. 	Factual Background
A. White’s Felony Drug Convictions
From May 2006 to August 2007, White sold crack cocaine to a confidential witness on
five separate occasions, four of which occurred at White’s residence.3 These sales were
1 Dkt. 219; Dkt. 242.
2 Dkt. 222; Dkt. 250.
3 Dkt. 222 at 3-6.
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monitored by the FBI Safe Streets Task Force.4 The amount for each sale varied, ranging from
2.6 to 69.4 grams.5
On November 13, 2007, a grand jury returned an indictment charging White with five
counts of distribution of a controlled substance.6 On November 16, 2008, the FBI executed a
search warrant at White’s apartment where agents saw him throw 85.4 grams of crack cocaine
out of a window.7 In the apartment, law enforcement found a digital scale, a loaded hand gun,
and an additional 27.5 grams of crack cocaine.8 A grand jury returned a superseding six-count
indictment on July 8, 2008 to include the drugs found during the search.9
White’s five-day trial began on December 17, 2008.10 White requested a jury instruction
on entrapment; the Court declined to give the instruction and White’s counsel did not object.11
On December 29, 2008, a jury convicted White on counts 1, 2, and 3 of the superseding
indictment.12
4 Id. at 3.
5 Id. at 3-6.
6 Dkt. 1.
7 Dkt. 222 at 6-7.
8 Id. at 7 (law enforcement found the additional crack cocaine at White’s feet near the window).
9 Dkt. 46 at 2.
10 Dkt. 119.
11 Dkt. 108 at 4 (defendant requests an entrapment defense); Dkt 131 (the Court declines); Dkt.
185 at 4 (defense counsel does not object).
12 Dkt. 132; Dkt. 128 at 2 (the jury was unable to reach a verdict on counts 4, 5, and 6 so the
Court declared a mistrial on those counts).
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B. White’s Sentencing
At sentencing, White had an adjusted guideline offense level of 34 and a criminal history
V, resulting in a guideline range of 235-293 months.13 However, the mandatory statutory
minimum sentence was 240 months.14 Both parties argued for the mandatory minimum
sentence, which the court imposed.15
C. White’s Appeal
White, assisted by counsel, filed a notice of appeal challenging the sufficiency of the
evidence supporting his conviction and sentence based on the discrepancy between the amount
of drugs sold versus the amount detected by law enforcement.16 The Ninth Circuit Court of
Appeals found sufficient evidence to uphold White’s conviction and sentence and affirmed on
August, 5, 2010.17
D. White’s 28 U.S.C. § 2255 Motion
On June 14, 2012, White filed a pro se motion to vacate under 28 U.S.C. § 2255 raising
four claims: ineffective assistance of trial counsel, violation of due process, prosecutorial
misconduct, and sentence entrapment.18 The government opposes, arguing: (1) White is not
13 Dkt. 153 at 10.
14 Id.; See 21 U.S.C. § 841 (b)(1)(A).
15 Dkt. 152; Dkt. 153.
16 Dkt. 174; Dkt. 191 at 2.
17 Dkt. 191 at 2.
18 Dkt. 219.
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entitled to raise these claims since they are either untimely or procedurally defaulted, and (2)
there is insufficient evidence to support any of the claims.19
The Magistrate Judge reviewed White’s allegations and found that without additional
information, his claims should be dismissed for lack of sufficient facts.20 White was
subsequently appointed counsel who filed an amended motion.21 White’s amended complaint
supplemented his sentencing entrapment claim, but did not address or expand on his first three
claims.22
i. 	Timeliness and Procedural Default
As an initial matter, the government contends that White’s claims should be summarily
dismissed because (1) White’s § 2255 motion is untimely or (2) White’s claims are procedurally
defaulted since he failed to raise them on direct appeal.23 White contends that his direct appeal
was created without his knowledge and maintains that his claims are reviewable at this time.24
ii. 	Claims 1, 2, and 3
In his first claim, White argues that he received ineffective assistance of trial counsel
when counsel failed to impeach a “star witness,” to confront inconsistencies in police reports and
a video used as evidence by the government, and to present two witnesses favorable to the
19 Dkt. 222; Dkt. 250.
20 Dkt. 225.
21 Dkt. 242.
22 Id. at 1 (“Grounds 1-3 remain as presented.”).
23 Dkt. 222 at 3, 18.
24 Dkt. 242 at 1-2.
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defense.25 White never identifies the “star witness,” does not state which statements in the police
reports were inconsistent, does not specify what video he believed was misleading or how, and
does not name the witnesses that would have been favorable to his defense.
In his second claim, White contends that his due process rights were violated when the
district court did not compel the government to provide immunity to defense witness Delgado,
who would have presented exculpatory evidence for White.26 White never specifies what the
exculpatory evidence would have been.
In his third claim, White asserts that the government used “scare tactics” to force defense
witness Delgado to exercise his Fifth Amendment right to remain silent at trial.27 White does not
identify who engaged in these “scare tactics” or what was said to whom that prevented Delgado
from testifying.
iii. 	Claim 4: Sentencing Entrapment
In his fourth and final claim, White argues that the government manipulated his sentence
by initiating more sales than were necessary for a conviction in order to increase his mandatory
minimum sentence.28 In his amended motion, White emphasizes that the last two sales of crack
cocaine were conducted one year after the previous three, and that the final sale was specifically
designed to involve a quantity of crack cocaine that doubled his mandatory minimum sentence.29
25 Dkt. 219 at 4-5.
26 Id. at 5-6
27 Id. at 7.
28 Dkt. 219 at 8.
29 Dkt. 242 at 13 (raising the mandatory minimum from 10 years to 20).
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White contends that counsel’s failure to advance a sentencing entrapment argument constituted
ineffective assistance of counsel causing prejudice at his sentencing.30
The Court notes that in its opposing briefs, the government conflates White’s claim of
sentencing entrapment to the separate defense of entrapment, suggesting that White’s
predisposition to commit the charged crimes requires the claim to fail.31 However,
predisposition is the principal element of entrapment, not of sentencing entrapment.32 A
sentencing entrapment defense does not hinge on predisposition and instead focuses on the
defendant’s intent and capability to produce the quantity of drugs charged; predisposition is
usually conceded.33
III. 	DISCUSSION
A. White’s 28 U.S.C. § 2255 Motion is Timely
Ordinarily, § 2255 motions are subject to a one-year statute of limitations, but the Court
may grant extensions.34 In this case, the Magistrate Judge granted White an extension to file his
30 Id. at 2.
31 See Dkt. 222 at 16-18; Dkt. 250 at 10-16;
32 See United States v. Jones, 231 F.3d 508, 516 (9th Cir. 2000) (the entrapment defense requires
the government to prove that the defendant was either “not induced by government agents or that
he was predisposed to commit the crimes charged”); United States v. Hoyt, 879 F.2d 505, 509
(9th Cir. 1989) (the defendant’s predisposition to commit the crime is the “principal element” of
entrapment).
33 See United States v. Mejia, 559 F.3d 1113, 1116-18 (9th Cir. 2009) (addressing the different
burdens of proof for entrapment and sentencing entrapment); Dkt. 242 at 6 (White concedes that
he is “predisposed to commit the offenses”).
34 28 U.S.C. § 2255(f); See Holland v. Florida, 560 U.S. 631, 649-50 (giving courts “flexibility”
with regard to equitable tolling).
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§ 2255 motion until June 11, 2012.35 Although the Court did not receive White’s motion until
June 14, 2012, it was executed and mailed on June 11, 2012.36 Therefore, White filed his § 2255
motion on time and the Court will rule on its merits.
B. Claims 1, 2, and 3 are Dismissed for Insufficient Support
White concedes that he did not raise any of the present claims in his direct appeal.37
Claims not raised on direct review are summarily defaulted unless the defendant can demonstrate
cause and prejudice or actual innocence.38 However, as highlighted by the Magistrate Judge’s
order, White’s first three claims contain a number of deficiencies, specifically due to a lack of
detail supporting his assertions.39 White and his counsel knew about these deficiencies but failed
to address or add to any part of the first three claims before filing an amended § 2255 motion.40
The Court agrees that White’s first three claims lack sufficient detail to undergo legal analysis
35 Dkt. 218.
36 Dkt. 219 at 13; See Campbell v. Henry, 614 F.3d 1056, 1058-59 (9th Cir. 2010) (The prison
mailbox rule considers the date a motion is given to prison staff as the filing date.).
37 Dkt. 219 at 4-11
38 See, e.g., Bousley v United States, 523 U.S. 614, 622 (1998) (“Where a defendant has
procedurally defaulted a claim by failing to raise it on direct review, the claim may be raised in
habeas only if the defendant can first demonstrate either ‘cause’ and actual ‘prejudice,’ or that he
is ‘actually innocent.’”).
39 Dkt. 225 at 1-3.
40 Compare Dkt. 225 (filed Mar. 28, 2013), with Dkt. 242 (filed Jan. 3, 2014).
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and sees no reason to reconsider. Therefore, White’s first three claims for ineffective assistance
of trial counsel, violation of due process, and prosecutorial misconduct are DENIED.
C. Sentencing Entrapment
Unlike the majority of claims that are procedurally defaulted if not raised on direct
appeal, ineffective assistance of counsel claims are typically validly raised in a § 2255 motion.41
White’s fourth claim of ineffective assistance of counsel regarding sentencing entrapment is thus
properly before the Court.
“Sentencing entrapment occurs when a defendant is predisposed to commit a lesser
crime, but is entrapped by the government into committing a crime subject to more severe
punishment.”42 When a defendant acts as a seller of illegal narcotics as White did here, the
defendant must “show, by a preponderance of the evidence: 1) the lack of intent to produce the
quantity of drugs; and 2) the lack of capability to produce the quantity of drugs.”43 A
defendant’s actual procurement of a quantity of drugs can indicate both the intent and capability
to produce the specific quantity of drugs in question.44 Nevertheless, in some cases the
41 See Massaro v. United States, 538 U.S. 500, 504-05 (2003) (“[I]n most cases a motion
brought under § 2255 is preferable to direct appeal for deciding claims of ineffective
assistance.”).
42 Mejia, 559 F.3d at 1118.
43 Id.
44 See United States v. Yuman-Hernandez, 712 F.3d 471, 474 (9th Cir. 2013) (“The capability to
sell a certain quantity of drugs has concrete contours: the defendant either can or cannot procure
or produce the amount in question.”).
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government may still unduly coerce a defendant to sell a greater quantity of drugs than the
defendant may otherwise have been willing.45
i. 	White Lacks Evidentiary Support For a Sentencing Entrapment Defense
White alleges no facts to support the assertion that he lacked the intent or capability to
produce the quantity of crack cocaine charged in his indictment. Instead, White centers his
sentencing entrapment claim on the government’s intent to “capitalize on White’s
predisposition” by waiting over one year to arrest him in order to trigger a higher mandatory
minimum sentence.46 White fails to point out anything in the record indicating that he had
hesitation or unwillingness to arrange the drug sales.47 Without such support, the Court finds
that White intended to deal the quantities in the convicted sales.
Furthermore, even if White lacked the intent to sell, he had the capability to do so.48 In
addition to actually selling over 50 grams of crack cocaine, White was found with over 110
45 See, e.g., United States v. Naranjo, 52 F.3d 245, 249-51 (9th Cir. 1995) (finding that the
defendant “had neither the intent nor the resources to engage” in a higher quantity drug sale).
46 Dkt. 242 at 6-10; Dkt. 251 at 2, 3, 6
47 See Dkt. 242; Dkt. 251.
48 Dkt. 242 at 5 (White concedes that he sold the government’s informant between 70 and 85
grams of crack cocaine on August 30, 2007 alone).
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grams when he was arrested.49 White’s argument lacks sufficient evidentiary development to
show that he lacked the intent and capability to produce the amount of crack cocaine in question.
ii. 	Not Pursuing Sentencing Entrapment Claim Was Reasonable
White contends that his trial counsel was ineffective because counsel should have
advanced a sentencing entrapment claim to lower the mandatory minimum sentence.50 Counsel
is deemed ineffective if “counsel’s representation fell below an objective standard of
reasonableness.”51 “Judicial scrutiny of counsel’s performance must be highly deferential,” so
there is “a strong presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance.”52 Even if counsel’s assistance is deemed ineffective, a defendant is
only entitled to relief if the inadequate representation resulted in prejudice.53
White relies on recent Ninth Circuit cases and a revised jury instruction on sentencing
entrapment in the April 2014 edition of the Ninth Circuit’s Manual of Model Criminal Jury
Instructions to further his claim that counsel should have raised a sentencing entrapment
defense.54 However, at the time of White’s trial and sentencing, the Ninth Circuit’s Manual of
49 Dkt. 222 at 6-7.
50 Dkt. 242 at 1-2, 11-12.
51 Strickland v. Washington, 466 U.S. 668, 688 (1984).
52 Id. at 689.
53 Id. at 692.
54 Dkt. 252 at 1-2; Dkt. 252-1.
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Model Criminal Jury Instructions did not include any instruction on sentencing entrapment.55
Generally, “new constitutional rules of criminal procedure will not be applicable to those cases
which have become final before the new rules are announced.”56 Although not dispositive, the
Court finds trial counsel’s heavy reliance on the 2003 edition of the Ninth Circuit’s Manual of
Model Criminal Jury Instructions to support the conclusion that counsel was not unreasonable
when he did not request a jury instruction on sentencing entrapment.57
More importantly, the decision by White’s trial counsel to not raise a sentencing
entrapment defense was not unreasonable because of the lack of evidentiary support for such a
55 9TH CIR. CRIM. J URY I NSTR. 3.1, 96-98 (2003) (omitting any mention of “sentencing
entrapment”).
56 Teague v. Lane, 489 U.S. 288, 310 (1989).
57 Dkt. 108 at 1-4; See Strickland, 466 U.S. at 689 (The Court is tasked with employing “every
effort . . . to evaluate the conduct from counsel’s perspective at the time.”).
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defense as detailed above. Since this Court finds that White’s counsel acted reasonably, it is
unnecessary to consider whether his failure to raise the claim was prejudicial.58
White’s fourth and final claim for sentencing entrapment is unsupported by sufficient
facts, so White’s counsel was not unreasonable, and thus not ineffective, for failing to raise the
claim. The Court DENIES White’s claim for sentencing entrapment.
IV. 	Conclusion
The Court has reviewed the parties’ briefing on White’s 28 U.S.C. § 2255 motion to
vacate, set aside, or correct his sentence and finds White’s claims without merit. The Court
therefore DENIES White’s § 2255 motion at Docket 219.
Dated at Anchorage, Alaska, this 23 rd day of September, 2014.
/s/ Timothy M. Burgess
TIMOTHY M. BURGESS
UNITED STATES DISTRICT JUDGE
58 Id. at 687 (holding that the question of whether counsel caused prejudice comes after a finding
of unreasonableness).
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