USA v. Zuber et al

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IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HOT SPRINGS DIVISION
UNITED STATES OF AMERICA 	RESPONDENT
vs. 	Criminal No. 6:18-cr-60031
Civil No. 6:23-cv-06045
STEVEN ZUBER 	MOVANT
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
Movant is Steven Zuber (“Zuber”). 	Zuber filed a pro se Motion to Vacate under 28
U.S.C. § 2255 on April 7, 2023. ECF No. 124. Thereafter, Zuber was appointed counsel; and,
through counsel, Zuber filed a Supplement to Motion to Vacate Pursuant to 28 U.S.C. § 2255.
ECF No. 128. 	The Government responded to this Motion (including the Supplement)1 on July
10, 2023. ECF No. 129.
This Motion was referred for findings of fact, conclusions of law, and recommendations
for the disposition of the case. 	The Court has reviewed the Motion, the Supplement, and the
response; and based upon that review, the Court recommends this Motion be DENIED.
1. 	Procedural Background2:
In the present action, on October 22, 2018, Zuber was named in a three-count criminal
complaint. 	ECF No. 1. 	He was appointed counsel, Morse Gist. 	Id. 	Thereafter, on December
13, 2018, Zuber was named in five counts of a six-count Indictment. ECF No. 12. On January
22, 2019, attorney Louis L. Loyd filed a motion for substitution of counsel requesting Mr. Gist
be relieved as Zuber’s attorney of record and requested that he be substituted as counsel. ECF
No. 31. This substitution was granted. ECF No. 32. However, this change was short-lived. On
1 For purposes of this Report and Recommendation, the Court will consider the Motion and
Supplement together.
2 The “Procedural Background” is taken from the pleadings and publicly-filed documents in this case.
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May 20, 2020, Zuber requested new counsel, and the Court reappointed Mr. Gist to represent
Zuber. ECF No. 55.
On November 12, 2020, Zuber appeared before the Honorable U. S. District Judge Susan
O. Hickey for a change of plea hearing. 	ECF No. 62. 	Zuber also submitted a plea agreement.
ECF No. 63. 	With this plea agreement, Zuber pled guilty to Count One and Count Six of the
Indictment. Id. Count One provided as follows:
Beginning on or about an unknown date, but at least as early as August 15, 2018,
and continuing to on or about October 19, 2018, in the Western District of
Arkansas, 	Hot 	Springs 	Division, 	and 	elsewhere, 	the 	defendants, 	STEVEN
ZUBER, TAMMY LENT, and others known and unknown to the Grand Jury,
did knowingly and intentionally combine, conspire, confederate and agree with
each other, and with others known and unknown to the Grand Jury to distribute a
mixture or substance that contained a detectible amount of methamphetamine, a
Schedule II controlled substance, in violation of Title 21, United States Code, §
841(a)(1) and Title 21, United States Code § 846.
ECF No. 12 at 1.
Count Six provided as follows:
On or about October 19, 2018, in the Western District of Arkansas, Hot Springs
Division, the Defendant, STEVEN ZUBER, during and in relation to a drug
trafficking crime for which he may be prosecuted in a court of the United States,
that 	is, 	Possession 	of 	a 	Controlled 	Substance 	with 	Intent 	to 	Distribute
Methamphetamine, did knowingly use, carry and possess a firearm in furtherance
of said drug trafficking crime, in violation of Title 18 U.S.C. § 942(c)(1)(A)(i).
ECF No. 12 at 3.
In the plea agreement, Zuber acknowledged he was not promised a specific sentence.
ECF No. 63 ¶ 13. Notably, Zuber agreed to the following:
The defendant acknowledges that discussions have taken place concerning the
possible guideline range which might be applicable to this case. 	The defendant
agrees that any discussions merely attempt to guess at what appears to be the
correct guideline range and do not bind the District Court. Further, the defendant
acknowledges that the actual range may be greater than contemplated by the
parties. 	In the event that the actual guideline range is greater than the parties
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expected, the defendant agrees that this does not give him the right to withdraw
his plea of guilty.
Id. 	By signing the plea agreement, Zuber acknowledged he had discussed the facts of the case
and the elements of the crime to which he was pleading guilty. 	ECF No. 63 ¶ 2. 	He
acknowledged he had committed each of the elements of the crimes and there was a factual basis
for his guilty plea. 	Id. He also acknowledged he was satisfied with the legal services provided
by counsel. Id. ¶ 24.d.
As a part of the plea agreement, Zuber also agreed to the maximum penalties for Count
One and Count Six. 	Zuber agreed the maximum term of imprisonment for Count One was 20
years of imprisonment. ECF No. 63 ¶ 9. Zuber agreed the maximum term of imprisonment for
Count Six was life imprisonment, and the mandatory minimum term of imprisonment was five
years. Id. As for Count Six, Zuber agreed “any term of imprisonment imposed as to Count Five
shall not run concurrently with any other term of imprisonment imposed.” Id.
During the change of plea hearing, the exchange between the Court and Zuber assured his
plea was voluntary and he understood the Court was not bound to any specific sentence:
THE COURT: . . . So I understand it today, Mr. Zuber, that we’re here for you to
change your plea from not guilty to guilty as to Counts 1 and 6 of the indictment;
is that correct?
THE DEFENDANT: Yes, ma’am. That is.
THE COURT: Okay. 	Now, Mr. Zuber, before you do that, I want to go over
some things with you. I want you to understand that if you are sentenced today—
I mean, sentenced—if you change your plea today, you will be sentenced
according to the United States Sentencing Guidelines. 	Now, these guidelines
were created so we would have parity of sentencing across the country. 	That
means similar type of sentences. 	So in other words, if you are found guilty or
plead guilty to this same charge in another district court someplace else in the
country, you will get a similar type of sentence as you will in this court.
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But I want you to also understand that these guidelines are advisory. That means
that if I do not believe that the guideline range is an appropriate sentence, I do not
have to follow it. Do you understand that?
THE DEFENDANT: Yes, ma’am. And I wish we were doing the sentence today.
I’ve been here a long time. Yes, ma’am. I understand.
THE COURT: I understand, but I got—I got to let Mr. Forsythe do his job. Okay.
So—
THE DEFENDANT: Yes, ma’am.
THE COURT: --so also I want you to understand that at this point in time I can’t
tell you what your guideline range will be. 	Okay. 	Mr. Zuber, I don’t know
anything about you. And until I receive the pre-sentence report. I’m not going to
know anything about you.
Now, Mr. Gist may be able to give you an idea what he believes the guideline
range will be, but that is just an educated guess. 	Until he receives the pre-
sentence report, he’s not going to know for sure what your guideline range will be
either. Do you understand that.
THE DEFENDANT: Yes, ma’am. I do.
THE COURT: Okay. Do you have any questions about any of the provisions of
the plea agreement?
THE DEFENDANT: No, ma’am.
THE COURT: Okay. Okay. Now, Mr. Zuber, did you read this plea agreement
and go over it with your attorney, Mr. Gist?
THE DEFENDANT: Yes, ma’am I did.
THE COURT: Okay. And do you understand what the plea agreement says?
THE DEFENDANT: Yes, ma’am. I do.
THE COURT: Okay. And now, I have been handed an executed plea agreement,
and it appears to have your signature on it. 	Mr. Zuber, did you sign this plea
agreement?
THE DEFENDANT: Yes, ma’am.
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THE COURT: Okay. What I’m going to do—try to do again, is I’m going to try
to put the last page of the plea agreement up to my camera, and I want you to tell
me if this is your signature, okay? This is the very last page of the agreement, and
these are the signatures. Is this your signature, Mr. Zuber?
THE DEFENDANT: Yes, ma’am. It is.
THE COURT: Okay. 	Was this—was this signature voluntary and of your own
freewill?
THE DEFENDANT: Voluntary and on my own freewill, ma’am.
THE COURT: Thank you. 	Mr. Zuber, did anyone force or threaten you to get
you to sign it?
THE DEFENDANT: No, ma’am.
THE COURT: Okay. 	Did anyone make any promises other than those that are
contained within the agreement to get you to sign it?
THE DEFENDANT: No, ma’am.
THE COURT: Okay. Did anyone put any pressure on you, Mr. Zuber?
THE DEFENDANT: No, ma’am.
THE COURT: Okay. Have you had any alcohol to drink today?
THE DEFENDANT: No, ma’am.
THE COURT: Have you had any drugs, prescription or otherwise, that would any
way influence you to impede your ability to make a free and voluntary decision?
THE DEFENDANT: No, ma’am. My mind is very clear.
THE COURT: Okay. 	Good deal. 	And, Mr. Zuber, are you satisfied with your
attorney, Mr. Gist?
THE DEFENDANT: Yes, ma’am.
ECF No. 100 at 17-18, 23-24.
On December 16, 2020, Mr. Gist requested to be removed as Zuber’s counsel. ECF No.
66. This Motion was granted, and Mr. Ben Hooten of Hot Springs, Arkansas was substituted as
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counsel. 	ECF No. 68. 	Thereafter, Mr. Hooten represented Zuber throughout the remainder of
these proceedings.
On November 11, 2021, Zuber’s initial Presentence Investigation Report (“PSR”) was
filed. 	ECF No. 70. Zuber filed objections to this PSR. ECF No. 71. 	In these objections, Mr.
Hooten stated there were “issues” with the PSR but noted those issues “are best dealt with in a
Sentencing Memo.” Id. Ultimately, a final PSR was filed. ECF No. 76. In this PSR, the United
States Probation Office (“USPO”) recommended Zuber be sentenced to 262 to 327 months for
Count One and Count Six. Id.
On April 19, 2021, Zuber appeared before the Honorable U.S. District Judge Susan O.
Hickey for sentencing. 	ECF No. 88. 	At the request of Zuber’s counsel and with no objection
from the Government, Judge Hickey granted a variance. ECF No. 90. Zuber was sentenced 216
months imprisonment as follows:
The defendant is sentenced to 216 months in the Bureau of Prisons with credit for
time served in federal custody. (156 months on Count 1 of the Indictment and 60
months on Count 6 to run consecutive.) 	The Court recommends that the
defendant be a candidate for the Intensive Drug Treatment Program and mental
health counseling/treatment. 	Three (3) years of Supervised Release is ordered.
(Three years on Count 1 of the Indictment and three (3) years on Count 6 to run
consecutive.)
ECF No. 88.
Zuber then appealed to the United States Court of Appeals for the Eighth Circuit. 	ECF
No. 103. 	On April 28, 2022, the Eighth Circuit entered an opinion and judgment affirming
Zuber’s conviction. 	ECF No. 107. The Eighth Circuit affirmed Zuber’s conviction as follows:
“the district court varied down significantly from the recommended sentencing range presumably
because of the mitigating circumstances involved. 	When a court sentences a defendant below
the Guideline range, ‘it is nearly inconceivable that the court abused its discretion in not varying
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down still further.’” Id.
On May 7, 2023, Zuber filed the current Motion to Vacate under 28 U.S.C. § 2255. ECF
No. 124. Mr. Christopher Holt then entered an appearance on Zuber’s behalf, and Mr. Holt filed
a supplement on Zuber’s behalf. ECF No. 127. On July 10, 2023, the Government responded to
this Motion. ECF No. 129. No reply has been filed. This matter is now ripe for consideration.
2. 	Applicable Law:
A § 2255 motion is fundamentally different from a direct appeal. 	The Court will not
reconsider an issue, which was decided on direct appeal, in a motion to vacate pursuant to §
2255. See United States v. Davis, 406 F.3d 505, 511 (8th Cir. 2005); Dall v. United States, 957
F.2d 571, 572 (8th Cir.1992) ( “Claims which were raised and decided on direct appeal cannot be
relitigated on a motion to vacate pursuant to 28 U.S.C. § 2255 .”).
“Relief under 28 U.S.C. § 2255 is reserved for transgressions of constitutional rights and
for a narrow range of injuries that could not have been raised on direct appeal and, if
uncorrected, would result in a complete miscarriage of justice.” 	United States v. Apfel, 97 F.3d
1074, 1076 (8th Cir. 1996).
3. 	Discussion:
With his Motion, Zuber raises four grounds relief.3 These four grounds are as follows:
(A) Zuber’s guilty plea was unlawfully induced and was not made voluntarily because his
counsel was ineffective in advising him regarding his plea; (B) Zuber’s plea was a “coerced
confession” because his counsel was ineffective and “told him he would ultimately receive a
longer sentence if he took his case to trial .. . . and accordingly pressured him” into accepting a
3 There is no dispute this Motion was timely filed well within the one-year limitations period.
The judgment affirming Zuber’s conviction was entered on April 28, 2022, and Zuber filed his
Motion on April 7, 2023.
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plea deal; (C) Zuber’s counsel was ineffective because he did not object to his classification as a
career offender; and (D) Zuber’s sentence is excessive because there have been changes in the
law since his sentencing such that, if he were resentenced today, he would not be considered a
career offenders or receive a § 924(c) enhancement. 	ECF No. 128. 	The Government has
responded to these claims and argues Zuber has demonstrated no basis for relief under 28 U.S.C.
§ 2255. ECF No. 129. This matter is now ripe for consideration, and the Court will separately
consider these claims.
However, as an initial matter, the Court must examine the standard for demonstrating
ineffective assistance of counsel. 	The “benchmark for judging any ineffective assistance of
counsel claim must be whether counsel’s conduct so undermined the proper functioning of the
adversarial process that the trial cannot be relied on as having produced a just result.” Strickland
v. Washington, 466 U.S. 668, 686 (1984).
To prove an ineffectiveness claim under Strickland, a movant must demonstrate (1) his or
her counsel’s performance was so deficient so as to fall below an objective standard of
reasonable competence; and (2) that counsel’s deficient performance prejudiced the defense. See
Toledo v. United States, 581 F.3d 678, 680 (8th Cir. 2009) (citation and quotations omitted). The
burden of proving ineffective assistance of counsel rests with the defendant. See United States v.
White, 341 F.3d 673, 678 (8th Cir. 2003) (citing United States v Cronic, 466 U.S. 648, 659
(1984)).
A. Zuber’s Plea
As his first basis for relief, Zuber claims his counsel was ineffective for advising him
regarding his plea such that his plea was not voluntary, knowing, and intelligent. 	ECF No. 124
at 4. 	Zuber specifically claims the following: “At the time of my plea signing, I was led to
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believe I would get approx. 120 months. I was not informed of the 4B1.2 enhancement nor the
924c enhancement. My sentence went from 120 months to a sentence of 262-327 months.” Id.
Zuber alleged his attorney led him to believe his sentencing would only be 120 months, and he
relied upon those assurances from his counsel. 	ECF No. 128 at 7-9. 	The Government has
responded to this claim and argues Zuber’s guilty plea was voluntary and made with full
knowledge of its consequences. ECF No. 129 at 8-16.
Upon review of Zuber’s claim, the Court finds no basis for relief under 28 U.S.C. § 2255.
Despite Zuber’s claim on this issue, Zuber recognizes he signed the plea agreement. As a part of
the plea agreement, Zuber agreed to the maximum penalties for Count One and Count Six.
Zuber agreed the maximum term of imprisonment for Count One was 20 years of imprisonment.
ECF No. 63 ¶ 9. 	Zuber agreed the maximum term of imprisonment for Count Six was life
imprisonment, and the mandatory minimum term of imprisonment was five years. 	Id. 	As for
Count Six, Zuber also agreed that “any term of imprisonment imposed as to Count Five shall not
run concurrently with any other term of imprisonment imposed.” Id.
Further, during his change of plea hearing, the Court informed Zuber of his statutory
sentencing range, and Zuber acquiesced:
THE COURT: Okay. Now, the statutory penalty for Count 1 is not more than 20
years imprisonment, not more than a million dollar fine, or both.
If you are sentenced to a term of confinement, then a term of supervised release
may also be part of this sentence.
If after you are released from confinement, if you violate a term of this supervised
release, and an additional term of confinement can be imposed upon you.
There is also a $100.00 special assessment that will be owed to the government.
Now, that is Count 1 and the statutory penalty for that count. 	Did you hear that
penalty, Mr. Zuber?
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THE DEFENDANT: Yes, ma’am.
THE COURT: Okay. 	And do you understand both of those, Count 1 and the
penalty?
THE DEFENDANT: Yes, ma’am. I do.
THE COURT: . . . .Now, this is Count 6. Did you hear that whole count?
THE DEFENDANT: Yes, ma’am.
THE COURT: Okay. Now, the penalty for this charge Is not less than five years
and not more than life imprisonment, not more than a $250,000.00 fine, or both.
Now, no term of imprisonment under this section can run concurrently, so that
means that it is consecutive. Okay. With any other—
THE DEFENDANT: Yes, ma’am.
THE COURT: -- term of imprisonment imposed upon that person. Okay. So do
you understand that, Mr. Zuber—that this is a five-year—
THE DEFENDANT: Yes, ma’am. I do.
THE COURT: --minimum that must run consecutive? You understand that?
THE DEFENDANT: Yes, ma’am.
THE COURT: Okay.
THE DEFENDANT: Yes, ma’am.
THE COURT: Now—okay—now, again, if there is a term of confinement
imposed, a term of supervised release may also be part of that sentence.
If after you released from confinement, if you violate a term of that supervised
release, then an additional term of confinement can be imposed upon you.
Again, there is a $100.00 special assessment that is owed to the government.
So, did you hear that full punishment as to Count 6, Mr. Zuber?
THE DEFENDANT: Yes, ma’am. I did.
THE COURT: Okay. 	And you understand both the charge and the punishment.
Is that correct?
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THE DEFENDANT: Yes, ma’am.
ECF No. 100 at 13-15. Zuber was fully aware of the possible penalty ranges for pleading guilty
when he signed his plea agreement. Thus, the Court finds no basis for relief.
B. Zuber’s Alleged “Coerced Confession”
For his second ground for relief, Zuber claims he was coerced into a confession because
“his attorney told him he would ultimately receive a longer sentence if he took his case to trial
and accordingly pressured him into . . . a bad plea deal.” 	ECF No. 128 at 6. 	The Government
has responded to this claim and argues there is “nothing in the record [that] suggests that his plea
was coerced.” ECF No. 129 at 17.
Based upon this Court’s review, the Court agrees with the Government’s argument. 	As
outlined in further detail above, Zuber was made fully aware of the potential penalty ranges for
pleading guilty to Count One and Count Six. As recognized in his PSR, the recommended range
for a guilty plea to only Count One and Count Six was 262 to 327 months. 	Zuber was facing
five counts and would have faced an even higher range. 	Despite this recommended range,
Zuber’s plea agreement gave him the enormous benefit of being sentenced to only 216 months.
Apart from his bare claim that he was “coerced,” Zuber has made no demonstration that
entering into this plea agreement was anything other than entirely his decision. Further, as Zuber
acknowledged on the day of his guilty plea, he was fully advised by Judge Hickey of the fact the
ultimate guideline range could very well be higher than any estimate his counsel gave him prior
to the change of plea. 	Accordingly, Zuber has not demonstrated he is entitled to relief under 28
U.S.C. § 2255.
C. Career Offender Classification
For his third claim for relief, Zuber argues his counsel, Mr. Hooten, was ineffective for
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failing to object to his classification as a career offender in the PSR. 	ECF No. 128 at 9-15.
According to Zuber, his prior conviction was an inchoate drug crime and should not qualify as a
predicate offense. Id.
The United States Sentencing Guidelines (“U.S.S.G.”) requires the following for a career
offender classification: (1) the defendant must be at least eighteen years old at the time the
offense was committed; (2) the offense must be a felony that is either a controlled substance
offense or a crime of violence, and (3) the defendant must have at least two prior felony
convictions for controlled substance offenses or crimes of violence. 	U.S.S.G. § 4B1.1(a)
(emphasis added). A “controlled substance offense” is defined as follows:
[A]n offense under federal or state law, punishable by imprisonment for a term
exceeding one year, that prohibits the manufacture, import, export, distribution, or
dispensing of a controlled substance (or a counterfeit substance) or the possession
of 	a 	controlled 	substance 	(or 	a 	counterfeit 	substance) 	with 	the 	intent 	to
manufacture, import, export, distribute, or dispense.
U.S.S.G. § 4B1.2(b).
The commentary to § 4B1.2, however, expressly states that controlled substance offenses
include the offenses of aiding and abetting, conspiring, and attempting to commit such offenses.
Under Eighth Circuit precedent4, Note 1 “is a reasonable interpretation of the career offender
guidelines” that is “well within the Sentencing Commission’s statutory authority.” United States
v. Mendoza-Figueroa, 65 F.3d 691, 694 (8th Cir. 1995). 	This Court is bound to that precedent
and finds no basis for a determination that Zuber’s counsel was ineffective for failing to raise a
meritless issue. 	See, e.g., Russell v. Jones, 886 F.2d 149, 152 (8th Cir. 1989). 	Based upon the
4 Not all circuits follow this interpretation. For example, this year, an en banc Eleventh Circuit
Court reached the conclusion that the commentary to U.S.S.G. § 4B1.2 should be disregarded to
the extent to which it impermissibly attempts to extend the definition of a “controlled substance
offense to include inchoate offenses.” See United States v. Dupree, 57 F.4th 1269 (11th Cir.
2023). Despite this case, the Court must follow the Eighth Circuit precedent.
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facts outlined above and the law of the Eighth Circuit, the Court finds Zuber has not met his
burden of demonstrating he is entitled to relief under 28 U.S.C. § 2255.
D. Changes in Law
As Zuber’s fourth and final ground, he claims the “changes in the law when it comes to
inchoate offenses” disqualify him from being classified as a career offender. ECF No. 124 at 8.
Upon review, however, this is the same argument as ground three, and the Court finds no change
in the law in the Eighth Circuit. Thus, again, the Court finds no basis for relief under 28 U.S.C.
§ 2255.
4. 	Recommendation:
Accordingly, based on the foregoing, the Court recommends the Motion (ECF No. 124)
be DENIED. The Court further recommends no Certificate of Appealability issue in this matter.
The 	Parties 	have 	fourteen 	(14) 	days 	from 	receipt 	of 	this 	Report 	and
Recommendation in which to file written objections pursuant to 28 U.S.C. § 636(b)(1). The
failure to file timely objections may result in waiver of the right to appeal questions of fact.
The Parties are reminded that objections must be both timely and specific to trigger de
novo review by the district court. See Thompson v. Nix, 897 F.2d 356, 357 (8th Cir. 1990).
DATED this 25th day of September 2023.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
UNITED STATES MAGISTRATE JUDGE
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