USA v. Gordon

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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION AT COLUMBUS
UNITED STATES OF AMERICA,
Plaintiff, 	: 	Case No. 2:20-cr-110
Civil Case No. 2:23-cv-01586
Chief District Judge Sarah D. Morrison
- 	vs 	- 	Magistrate Judge Michael R. Merz
CARL LAMONT GORDON, JR.,
Defendant. 	:
REPORT AND RECOMMENDATIONS
This is a case under 28 U.S.C. § 2255 in which Defendant seeks to have his conviction for
drug-trafficking and firearm offenses vacated on grounds he received ineffective assistance of trial
counsel (Motion to Vacate, ECF No. 50). The matter came on for evidentiary hearing on August
27, 2025 (Minute Entry for 8/27/2025). Defendant consented to appear remotely and the hearing
was thus held in open court in the video conference room attached to The Historic Courtroom at
120 West Third Street, Dayton, Ohio 45402. 	Present were Defendant (remotely), Dennis Belli
(Defendant’s attorney), Assistant United States Attorneys Elizabeth Geraghty and Brian Martinez,
and members of Defendant’s family (Transcript, ECF No. 101). 	The proceedings have been
transcribed (Id.) and the parties have filed post-hearing briefs (ECF Nos. 94, 95, 100), rendering
the Motion to Vacate ripe for decision.
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District Judge (now Chief Judge) Morrison referred the Motion to Vacate to the
undersigned pursuant to 28 U.S.C. § 636(b)(1)(B), Fed.R.Civ.P. 72(b), and Amended General
Order 22-05, requiring the undersigned to prepare a report and recommended decision on all
matters deemed dispositive by statute or precedent (ECF No. 62). As a post-judgment matter, the
Motion to Vacate requires a recommendation.
Litigation History
Defendant was indicted July 14, 2020, and charged with possession of a firearm by a
convicted felon (Indictment, ECF No. 1, Counts One, Two, and Four, specifying four qualifying
prior convictions) and possession with intent to distribute twenty-eight grams or more of crack
cocaine (Count Three). Defendant then had a pending case in Athens County which delayed his
arraignment (ECF No. 6). 	Prior to the arraignment, Attorney Sanuel Shamansky entered his
appearance as Defendant’s counsel on September 25, 2020 (ECF No. 8). 	Shamansky filed no
pretrial motions, but quickly negotiated a Plea Agreement which was filed December 14, 2020,
and in which Defendant agreed to plead guilty to Counts 1, 3, and 4 (ECF No. 14, PageID 29).
The agreement acknowledged a possible penalty of five to sixty years (PageID 30). Inter alia, the
parties agreed “the Defendant committed the offense subsequent to sustaining at least two felony
convictions of either a crime of violence or a controlled substance offense.” Id. at PageID 31. On
December 28, 2020, Judge Morrison conducted the required plea colloquy under Fed. R. Crim. P.
11 and accepted Gordon’s guilty plea (Minutes, ECF No. 16).
For reasons not reflected in the relevant Entry, sentencing was re-set from May until
August, 2021 (ECF No. 31) and then again for October (ECF No. 34). 	On October 29, 2021,
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eleven months after his guilty plea was accepted, Defendant was sentenced to the 144 month
sentence he is now serving and from which he seeks relief (ECF Nos. 	36, 37). Continuing to
represent Gordon, Attorney Shamansky filed a Notice of Appeal (ECF No. 40). New counsel was
appointed for appeal and then the appeal was voluntarily dismissed (ECF No. 49) 1 . The reasons
for voluntary dismissal have not been disclosed, but the Plea Agreement contains the following
Waiver of Appeal:
Waiver of Appeal: In exchange for the concessions made by the
USAO in this plea agreement, the Defendant waives the right to
appeal the conviction and sentence imposed, except if the sentence
imposed exceeds the statutory maximum. 	Defendant also waives
the right to attack his sentence collaterally such as by way of a
motion brought under 28 U.S.C. § 2255 and 18 U.S.C. § 3582.
However, this waiver shall not be construed to bar a claim by
the 	defendant 	of 	ineffective 	assistance 	of 	counsel 	or
prosecutorial misconduct.
(ECF No. 14, PageID 33, emphasis added)2 .
1 Prior to the dismissal, Attorney Shamansky had ordered the sentencing hearing transcribed and it was (ECF Nos
41, 42).
2 The bold-faced language (the “Holder Exception”) was imposed on United States Attorneys by Attorney General
Eric Holder (2009-2015) and the limitations has not been removed despite the radical changes in administration of the
Justice Department since Mr. Holder’s tenure. In the experience of the undersigned, the Holder Exception makes the
Waiver of Appeal ineffective in the face of creative pleading. In the instant case without the Holder Exception,
Defendant could have pleaded that Judge Morrison committed reversible error when she used the career offender
Guideline calculation. That pleading is barred by the Holder Exception, but the bar is easily evaded by pleading
Gordon received ineffective assistance of trial counsel when his attorney failed to raise that point. 	The Holder
Exception dramatically reduces the value of the appeal waiver in promoting finality and reducing the workload of
Assistant United States Attorneys and the courts.
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Positions of the Parties
The Motion to Vacate
28 U.S.C. § 2255(g) sets a one-year limitation on motions to vacate. The instant Motion
was filed by retained counsel Dennis Belli May 10, 2023, about one week before the statute
expired. In it Gordon pleads three claims of ineffective assistance of trial counsel:
Ground One: Failure to object to Gordon’s classification as a
career offender under the Sentencing Guidelines.
Ground Two: 	Failure to request a reduction of Gordon’s career
offense 	base 	level 	for 	acceptance 	of 	responsibility 	and 	a
government-requested downward departure.
Ground Three: Failure to request an order that Gordon’s federal
sentence be served concurrently with his state sentence.
(Motion to Vacate, ECF No. 50, PageID 330-33.)
Government’s Answer
In answering the Motion to Vacate, the United States raised no affirmative defenses. As
to Ground One, it noted that the parties had stipulated in the Plea Agreement that Gordon had two
prior felony convictions for controlled substance offenses and even without the stipulation, Gordon
had been bound over as an adult and convicted of marijuana trafficking even though he was only
seventeen at the time (ECF No. 58, PageID 412).
As to Ground Two, the United States asserts that, regardless of whether Attorney
Shamansky asked for them, Gordon received the two Guidelines range reductions referenced in
Ground Two (Id. at PageID 413).
As to the failure to request an order for concurrent service of sentences, the United States
notes that no sentence had yet been imposed in the Athens County case. It posits that Attorney
Shamansky therefore strategically concentrated on obtaining as low a sentence as possible in this
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case. Because the parties agreed to “carve out” the Athens County facts from relevant conduct,
the Government posits the Court would have been unlikely to run the sentences concurrently. Id.
at PageID 414.
Finally, the United States notes that in both the Plea Agreement and at the plea colloquy,
Gordon stated he was completely satisfied with Attorney Shamansky’s representation. Id. at
PageID 414.
Gordon’s Reply
In his Reply Gordon notes the absence of an anticipated affidavit from Attorney
Shamansky to obtain which the United States had sought extensions of time and notes approval of
ineffective assistance of trial counsel claims in the Department of Justice Manual, responding to
the Government’s claim that it is merely another way of attacking the sentence. It also rebuts the
assertion that Gordon’s marijuana trafficking conviction is properly counted as justifying a career
offender designation.
Subsequent History
To resolve whether an evidentiary hearing was needed, the Court ordered the deposition of
Attorney Shamansky (ECF No. 71). After the deposition was taken and transcribed (ECF No. 73),
the Court ordered that it would consider his deposition testimony without his needing to appear
personally. 	Questions of the possible testimony of other witnesses were resolved and the
evidentiary hearing was held August 27, 2025, with the appearances noted above.
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Attorney Shamansky’s Testimony
Attorney Sam Shamansky began representing Gordon in the Athens County case in April
2020, and in this case in September of that year (Transcript, ECF No. 73). From the beginning
Gordon did not intend to go to trial in this case. Attorney Shamansky began dealing with Assistant
United States Attorney Elizabeth Geraghty shortly after this case was filed. He identified the Plea
Agreement and accepted that there was a conflict between a base offense level of 34 (based on two
prior drug offenses) and a base offense level of 28 based on the drug quantity involved in this case.
He could not remember whether he had ever discussed with Gordon the consequence of stipulating
to the career offender classification, but agreed that it should have been done.
Having identified the final Presentence Report, Attorney Shamansky agreed the probation
officer relied on the trafficking marijuana conviction as a second drug offense. Id. at PageID 522.
He agreed Gordon’s sentence for the trafficking conviction was community control, not
incarceration. Id. at PageID 526-27. 	He agreed there was “a discrepancy between paragraphs 34
and 50 versus paragraph 63” in the Presentence Report, but did not make an objection based on
that discrepancy. Id. at PageID 529. In his opinion, that should have been done because
You know, we strive to always uncover every single issue that’s
helpful to a client. I'm responsible for the objection letter that goes
to the client, and I’m responsible for the work that my colleagues
do. I live by it and I die by it. And in this case, based on the work
you've uncovered, I think this would have been a viable issue to
raise. I mean, you know, some issues are Hail Marys3 and are
ridiculous, and you know, as an appellate lawyer and as an
experienced criminal practitioner, just as everybody in this room
knows, raising those issues hurts a client. But if it’s a viable issue,
3 The “Hail Mary” is a short prayer very common in Roman Catholic piety prior to the 1960’s. In Catholic football,
however, it is a forward pass so unlikely to be caught that its success would be considered a miracle. It is the latter
usage which has passed into common parlance.
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even if it's nor the greatest issue in rhe [sic] world, it should be
raised. . .
This is a significant issue, No. 1. No. 2, I believe, looking back on
the work that you've [Attorney Belli] uncovered and that we didn't
uncover, it should have been raised. There’s no playing around with
that, I don't think.
Id. at PageID 529-30.
Attorney Shamansky reached an agreement with the Athens County prosecutor that the
state sentence should be served concurrently with the federal sentence and the Common Pleas
judge entered an order to that effect. Id. at PageID 539.
On 	cross-examination 	by 	Ms. 	Geraghty, 	Mr. 	Shamansky 	admitted 	that 	Gordon’s
community control sentence for the trafficking conviction was to be served after his incarceration.
Id. at PageID 546. He expressed his opinion that the Sentencing Guidelines were very unfair and
said he would not argue against his client and would “rather have a sword stuck up my backside
than do that.” Id. at PageID 551. He had not done any independent analysis of Gordon’s claims in
this case “because independent analysis would mean that I'd be trying to cover my rear end. I’m
not trying to cover my rear end. I want what's best for the client.” Id. He agreed that he had missed
the 17-month issue that Mr. Belli had raised on Gordon’s behalf. Id. at PageID 553. Whether it
affected the sentence he thought was for Judge Morrison to decide. Id.
Defendant’s Testimony
Attorney Belli took Gordon through his criminal history as it related to the trafficking in
marijuana charge and confirmed he had never served a committed sentence on that charge.
(Transcript, ECF No. 101, PageID 765).
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He had been arrested on new charges out of Athens County, but was released on bond and
the case was dormant until he was arrested on the federal charges in this case in January, 2020. Id.
at PageID 769. 	He discharged his original attorney and retained Attorney Shamansky. Id. at
PageID 771. He claims he told Attorney Shamansky at the outset that he wanted to make sure any
prison time was concurrent. 	Id. at PageID 774. 	Gordon testified he never signed the Plea
Agreement4 and never discussed it with Shamansky before the plea colloquy. Id. at PageID 784.
He claims that when he received the presentence report, he immediately reached out to Mr.
Shamansky to discuss the supposed committed sentence from Fairfield County. Id. at PageID 790.
Attorney Shamansky said he would look into it. Id. at PageID 793. During the sentencing hearing,
there was no discussion of concurrent sentences. Id. at PageID 799.
When it came time to be sentenced in Athens County, the plea agreement provided for a
sentence concurrent with the federal sentence. Id. at PageID 801. 	However when Gordon was
transferred to federal custody at the end of his state sentence in December, 2023, he was not given
any credit against his federal sentence for the time in state prison. Id. at PageID 809.
Analysis
The governing standard for ineffective assistance of counsel claims is found in Strickland
v. Washington, 466 U.S. 668 (1984):
A convicted defendant's claim that counsel's assistance was so
defective as to require reversal of a conviction or death sentence has
two components. 	First, the defendant must show that counsel's
performance was deficient. This requires showing 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
4 He later admitted that he authorized Attorney Shamansky to sign it on his behalf.
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showing that counsel's errors were so serious as to deprive the
defendant of a fair trial, a trial whose 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.
466 U.S. at 687. In other words, to establish ineffective assistance, a defendant must show both
deficient performance and prejudice. 	Berghuis v. Thompkins, 560 U.S. 370, 389 (2010), citing
Knowles v. Mirzayance, 556 U.S.111 (2009).
To prevail on an ineffective-assistance-of-counsel claim, a movant must establish that (1)
counsel’s performance was deficient and (2) the deficiency resulted in prejudice, meaning that
there is a reasonable probability that, but for counsel’s error, the result of the proceeding would
have been different. Shimel v. Warren, 838 F.3d 685, 696 (6th Cir. 2016).
With respect to the first prong of the Strickland test, the Supreme Court has commanded:
Judicial 	scrutiny 	of 	counsel's 	performance 	must 	be 	highly
deferential. . . . 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. 	Because of the difficulties inherent in making the
evaluation, a court must indulge a strong presumption that counsel's
conduct falls within a wide range of reasonable professional
assistance; that is, the defendant must overcome the presumption
that, under the circumstances, the challenged action "might be
considered sound trial strategy."
466 U.S. at 689.
As to the second prong, the Supreme Court held:
The defendant must show that there is a reasonable probability that,
but for counsel's unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a probability
sufficient to overcome confidence in the outcome.
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466 U.S. at 694. 	See also Darden v. Wainwright, 477 U.S. 168, 184 (1986), citing Strickland,
supra.; Wong v. Money, 142 F.3d 313, 319 (6th Cir. 1998), citing Strickland, supra; Blackburn v.
Foltz, 828 F.2d 1177, 1180 (6 th Cir. 1987), quoting Strickland, 466 U.S. at 687. “The likelihood of
a different result must be substantial, not just conceivable.” Storey v. Vasbinder, 657 F.3d 372,
379 (6th Cir. 2011), quoting Harrington v. Richter, 562 U.S. 86, 111-12 (2011).
In assessing prejudice under Strickland, the question is not whether
a court can be certain counsel's performance had no effect on the
outcome or whether it is possible a reasonable doubt might have
been 	established 	if 	counsel 	acted 	differently. 	See 	Wong 	v.
Belmontes, 558 U.S. 15, 27, 130 S. Ct. 383, 175 L. Ed. 2d 328
(2009) (per curiam); Strickland, 466 U.S., at 693, 104 S. Ct. 2052,
80 L. Ed. 2d 674. Instead, Strickland asks whether it is “reasonably
likely” the result would have been different. Id., at 696, 104 S. Ct.
2052, 80 L. Ed. 2d 674. This does not require a showing that
counsel's actions “more likely than not altered the outcome,” but the
difference between Strickland's prejudice standard and a more-
probable-than-not standard is slight and matters “only in the rarest
case.” Id., at 693, 697, 104 S. Ct. 2052, 80 L. Ed. 2d 674. The
likelihood 	of 	a 	different 	result 	must 	be 	substantial, 	not 	just
conceivable. Id., at 693, 104 S. Ct. 2052, 80 L. Ed. 2d 674.
Harrington v. Richter, 562 U.S. 86, 111-112 (2011).
Ground One: 	Failure to object to Gordon’s classification as a career offender under the
Sentencing Guidelines.
In the usual case of a claim of ineffective assistance of trial counsel, an attorney accused
of malpractice will defend his conduct or counsel defending the conviction will construct a
plausible way in which the accused conduct can be construed to have been strategic behavior. In
this case Attorney Shamansky has fallen on his sword and admitted deficient performance in
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failing to prevent Gordon from being classified as a career offender. That is to say, he admitted
the correctness of Gordon’s testimony that he had not been incarcerated on the marijuana
trafficking conviction he incurred at age seventeen so that that conviction, albeit it was in adult
court, should not have counted toward classifying Gordon as a career offender. This satisfied the
deficient performance prong of Strickland.
Whether Gordon was prejudiced by Shamansky’s error is a separate question. 	Judge
Morrsion accepted Gordon’s classification as a career offender and began her sentencing analysis
from that point. However, she departed downward from the calculated career offender Guideline
range and actually imposed a sentence 118 months below the bottom of that range. 	Despite
missing the career offender miscalculation, Attorney Shamansky argued vigorously for a below-
range sentence, dumping large amounts of vitriol on the Sentencing Guidelines regime and what
he viewed as its unfairness to his client in this case.
The United States argues that the below-Guidelines sentence was so favorable to Gordon
that there is no reasonable probability he was prejudiced by Attorney Shamansky’s deficient
performance. 	On the other hand, neither party has offered any evidence which supports or rebuts
an inference either way. 	For example, we are not told how Judge Morrison usually reacts to
corrections in Sentencing Guideline corrections.
In the absence of any such evidence, the undersigned declines to speculate on whether it is
“reasonably probable” that Judge Morrison would have imposed a lower sentence. 	The Judge
herself can evaluate whether Attorney Shamansky’s deficient performance had an impact on the
ultimate sentence. If it did, she has authority to vacate the sentence and re-sentence Gordon.
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Ground Two: 	Failure to Request a Downward Departure in the Guideline Range for
Gordon’s Acceptance of Responsibility and Recognition of the Government’s Request for a
Downward Departure.
In his Second Ground for Relief, Gordon claims he received ineffective assistance of trial
counsel when Attorney Shamansky failed to request a downward departure in the Guideline Range
based on his acceptance of responsibility for his criminal conduct and recognition of a government
request for downward departure.
The Government’s Answer claims the Court granted both of these departures (Answer,
ECF No. 58, PageID 413). Attorney Belli elicited no testimony from either Attorney Shamansky
or the Defendant on this claim. 	The undersigned concludes it is without merit and should be
dismissed.
Ground Three: Failure to Request Concurrent Sentences
In his Third Ground for Relief, Gordon asserts he received ineffective assistance of trial
counsel when Attorney Shamansky did not request this Court order his federal sentence and the
anticipated Athens County sentence be served concurrently.
In its Answer, the Government notes that the Athens County case had not yet been resolved
at the time of sentencing in this case and hypothesized that Attorney Shamansky focused on
obtaining as low a federal sentence as possible (Answer, ECF No. 58, PageID 413). Also because
the parties agreed to “carve out” the Athens County facts from relevant conduct in this case, the
Government hypothesizes the Court would have been unlikely to impose concurrent sentence. Id.
at PageID 414. Gordon rejects that argument because, he says, once it was decided that he would
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be sentenced as a career offender, the “carve out” had no impact. (Reply, ECF No. 59, PageID
421).
As noted, Attorney Shamansky represented Gordon in both this and the Athens County
case. The plea agreement he negotiated in the state case did provide for concurrent service of the
two sentences. However, at the expiration of the state sentence when he was returned to federal
custody, Gordon learned that the federal Bureau of Prisons had given him no credit for the time
spent in state custody. Asked about this at his deposition, Attorney Shamansky suggested his plan
for concurrent sentences would have work[ed] better if Gordon has been in federal custody when
the state sentence was imposed (Transcript, ECF No.73, PageID 554-55).
A. Brian, I — Mr. Martinez, I don’t -- I
know it was a question of timing.
Q. Yeah.
A. And that, I didn’t control. You know, the fed case came later. I
guess looking back, I was hoping that his time would — that he
could get the benefit of as much concurrent time and credit as
possible given the circumstances.
Q. And, in fact, you pushed for that in the Athens case, didn't you?
A. Yeah, of course.
Q. You made it part of the plea agreement?
A. Yes.
Q. And the judge ultimately ruled that they would be served
concurrently.
A. True.
Q. Right?
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A. Yeah.
Q. So you succeeded there.
A. Well, I don't know about -- I mean, that’s — again, that's -- these
are terms — I don't know that it was so successful now that I’m
hearing that, you know, what would have been more successful is if
he had been in federal custody, I think, would be Dennis’ -- Mr.
Belli's position, and then Athens ran their time with the term that he
was already serving in federal custody, that would have been more
better.
Id.
Gordon’s treatment by the Bureau of Prisons is consistent with the primary jurisdiction
doctrine which provides that the sovereign first obtaining jurisdiction retains that jurisdiction until
any sentence imposed is satisfied. See Sadowski, Interaction of Federal and State Sentences When
the Federal Defendant Is Under State Primary Jurisdiction (ECF No. 94-1). Gordon was charged
first in Athens County. His appearance in federal court was obtained by Writ of Habeas Corpus
ad Prosequendum (ECF No. 7). He remained in federal custody until conclusion of this case and
was then returned to state custody where he remained until he completed service of his state
sentence.
As Gordon points out, a district court has authority to order that a federal sentence be served
concurrently or consecutively to a state sentence which has not yet been imposed. Setser v. United
States, 566 U.S. 231, 236 (2012). Thus Judge Morrison could have included a concurrent sentence
specification in the judgment in this case had she decided to do so. But Attorney Shamansky did
not ask nor does he suggest any strategic reason for failing to do so. Given the importance of the
concurrent sentence to Mr. Gordon and its availability to Judge Morrison if she had been asked,
Attorney Shamansky’s failure to ask should be held to be deficient performance.
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However, Gordon has failed to show prejudice. As the Government’s Post-Hearing Brief
points out, the Bureau of Prisons, recognizing her authority to impose a concurrent sentence under
Setser, wrote to Judge Morrison asking her intention.
Should the Court indicate the sentence is to run concurrently with
the state term, the Bureau will commence the sentence in the above
judgment on the date of imposition, which will result in Mr.
Gordon's release from Bureau custody on or about March 28, 2030.
Should the Court indicate the sentence is to run consecutively to the
state term, he will continue to a current projected release date of
March 17, 2034.
(Letter to Chief Judge Morrison dated May 30, 2025; attached to ECF No. 95, PageID 718-19).
Gordon objects to the Magistrate Judge’s consideration of this letter on several grounds
(Defendant’s Post-Hearing Reply Brief, ECF No. 100, PageID 728-30). 	The Magistrate Judge
agrees it would have been preferable for the Government to disclose the existence of the letter to
the Defendant and to have included it as an exhibit at the evidentiary hearing. 	That said, any
potential harm done can be cured during Judge Morrison’s de novo review of this Report.
Assuming Chief Judge Morrison has received the letter (which was only filed as an
attachment to the Government’s Post-hearing Brief) and has responded by not indicating an
intention to have the sentences served concurrently, that would eliminate any claim of prejudice
on the Third Ground for Relief. If, however, she has responded that concurrent sentences were
her intention, then, as conceded by Defendant, his Third Ground for Relief is moot. Government
counsel should complete the record by filing any response Chief Judge Morrison has made to the
Bureau of Prisons.
Conclusion
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As to Ground One, the Magistrate Judge finds Defendant has shown deficient performance
and defers to Chief Judge Morrison on the question of whether she would have imposed a lesser
sentence if Gordon has not been classified as a career offender. Ground Two should be dismissed.
Ground Three should be dismissed as moot if Chief Judge Morrison has advised the Bureau of
Prisons to run Gordon’s federal sentence concurrently with the Athens County sentence. If she
has advised the BOP that she intended consecutive sentences, Ground Three should be dismissed
for lack of proof of prejudice, the second Strickland prong.
December 29, 2025.
s/ Michael R. Merz
United States Magistrate Judge
NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the
proposed findings and recommendations within fourteen days after being served with this Report
and Recommendations. Such objections shall specify the portions of the Report objected to and
shall be accompanied by a memorandum of law in support of the objections. A party may respond
to another party’s objections within fourteen days after being served with a copy thereof. Failure
to make objections in accordance with this procedure may forfeit rights on appeal.
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