USA v. Costa

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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. 6:19-cr-60048
Civil No. 6:23-cv-06043
ANTONE COSTA 	MOVANT
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
Movant is Antone Costa (“Costa”). Costa, through his counsel, filed a Motion to Vacate
under 28 U.S.C. § 2255 on April 6, 2023. 	ECF No. 68. 	The Government responded to this
Motion on June 27, 2023. 	ECF No. 72. 	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 and the response; and based upon that review, the Court recommends this
Motion be DENIED.
1. 	Procedural Background1:
In the present action, on November 20, 2019, Costa was indicted on four separate counts
of distribution of methamphetamine in violation of 18 U.S.C. §§ 841(a)(1) and 841(b)(1)(C); one
count of being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and
924(a)(2); and one count of possession of a firearm in furtherance of a drug trafficking crime in
violation of 18 U.S.C. § 924(c)(1)(A). ECF No. 1. 	On December 10, 2019, Costa was arraigned
on Counts One through Six of the Indictment and was appointed counsel, the Federal Public
Defender’s Office, to represent him. 	ECF No. 10. 	On December 17, 2019, Josh Hurst was
retained and substituted as counsel for Costa. ECF No. 19.
1 The “Procedural Background” is taken from the pleadings and publicly filed documents in this case.
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On August 3, 2021, pursuant to a written plea agreement, Costa pled guilty to one of the
methamphetamine-distribution counts and the § 924(c) count. 	ECF No. 33. 	These were Count
Four and Count Six of the Indictment. Id. Count Four of the Indictment provided as follows:
On or about July 23, 2019, in the Western District of Arkansas, Hot Springs
Division, 	the 	Defendant, 	ANTONE 	COSTA, 	knowingly 	and 	intentionally
distributed a controlled substance, namely a mixture or substance containing a
detectable amount of methamphetamine, a Schedule II controlled substance. 	All
in violation of Title 21, United States Code, Sections 841(a)(1) and 841(b)(1)(C).
ECF No. 1 at 2.
Count Six of the Indictment provided as follows:
On or about September 16, 2019, in the Western District of Arkansas, Hot Springs
Division, the Defendant, ANTONE COSTA, did knowingly possess a firearm in
furtherance of a drug trafficking crime for which he may be prosecuted in a court
of 	the 	United 	States, 	that 	is, 	Distribution 	of 	a 	Controlled 	Substance,
Methamphetamine, as charged in Counts One through Four.
ECF No. 1 at 3.
As a part of this Plea Agreement, Costa stated he had discussed the Plea Agreement with
his counsel:
The defendant has fully discussed with defense counsel the facts of this case and
the elements of the crime to which the defendant is pleading guilty. 	The
defendant has committed each of the elements of the crime to which the defendant
is pleading guilty, and admits that there is a factual basis for this guilty plea.
ECF No. 33 ¶ 1.
Costa specifically admitted the following regarding his gun possession and Count Six of
the Indictment:
The defendant was subsequently transported to the Garland County Detention
Center and interviewed by Special Agent Josh Heckel. 	Subsequent to being
advised of and waiving his Miranda rights, the defendant admitted to being a
convicted felon and being in possession of the firearm seized from his vehicles, as
well as his residence, and stated the guns were for protection. 	The defendant
further admitted to the distribution of methamphetamine and stated that he sold
approximately 2 to 3 ounces a week.
Id.
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Also, as a part of this Plea Agreement, Costa waived his appellate rights. ECF No. 33 ¶
9. 	Costa agreed to waive “to the full extent of the law, any right to appeal or to collaterally
attack the conviction and sentence” and waived “the right to directly appeal the conviction and
sentence pursuant to 28 U.S.C. § 1291 and/or 18 U.S.C. § 3742(a).” Id. Costa also waived “the
right to collaterally attack the conviction and sentence pursuant to 28 U.S.C. § 2255, except for
claims based on ineffective assistance of counsel or prosecutorial misconduct.” Id.
On October 29, 2021, the Final Presentence Investigation Report (“PSR”) and Sentencing
Recommendation were filed. ECF Nos. 37-38. In the Sentencing Recommendation, the United
States Probation Office (“USPO”) recommended Costa be sentenced to 240 months total as to
both Count Four and Count Six. ECF No. 38.
Ultimately, on June 23, 2022, Costa appeared before the Honorable U.S. District Judge
Susan O. Hickey for sentencing. 	ECF Nos. 47-48. 	Costa was sentenced to one hundred and
fifty-one (151) months on Count Four and sixty (60) months on Count Six to run consecutively
with Count Four, for a total of two hundred eleven (211) months with credit for time served in
federal custody. ECF No. 47 at 2. Costa was also sentenced to three years of supervised release
on both Count Four and Count Six, running concurrently. ECF No. 47 at 3.
Costa then appealed to the United States Court of Appeals for the Eighth Circuit. 	ECF
No. 49. Upon review of Costa’s appeal, the Eighth Circuit dismissed the appeal and enforced the
appellate waiver as follows: “Our review of the record demonstrates that Costa entered into the
plea agreement and the appeal waiver knowingly and voluntarily, his challenge to the sentence
falls within the scope of the waiver, and no miscarriage of justice would result from enforcing
the waiver.” ECF No. 63-2 at 2.
Thereafter, Costa was appointed counsel for collateral review. ECF No. 66. On April 6,
2023, Costa, through counsel, filed a Motion to Vacate under 28 U.S.C. § 2255. 	ECF No. 68.
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The Government responded to this Motion on June 27, 2023. 	ECF No. 72. 	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, Costa raises two claims: (1) his counsel was ineffective for allowing
him to plead guilty to Count Six: the § 924(c) charge; and (2) his counsel was ineffective for
failing to object to his career offender classification. 	ECF No. 68. 	The Government has
responded to both of these claims and argues Costa has demonstrated no basis for relief under 28
U.S.C. § 2255. 	ECF No. 72. 	This matter is now ripe for consideration, and the Court will
separately consider these claims.
A. Ineffective Assistance of Counsel Standard
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
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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)).
B. Guilty Plea - § 924(c) Charge
Costa claims that in the Indictment, he was charged with knowingly and intentionally
distributing methamphetamine on or about June 20, 2019, June 25, 2019, July 2, 2019, and July
23, 2019. Despite being charged with these offenses in June and July, his attorney advised him
and allowed him to plead guilty to Count Six of the Indictment which charged him with
knowingly possessing a “a firearm in furtherance of a drug trafficking crime” what occurred
“[o]n or about September 16, 2019.” As Costa argues, the alleged distribution was well before
the possession of the firearm, which occurred two to three months later. Costa argues he did not
even possess that firearm in June or July: “Mr. Costa specifically mentioned only having found
the stolen firearm a week and a half prior to the date he was interviewed, meaning that he would
have only come into possession of that gun in early September and would not have had it in his
possession in June or July.” ECF No. 68 at 6.
According the Count Six of the Indictment, the firearm possession occurred “on or about
September 16, 2019.” 	Such a statement allows for a broader time-period than simply in
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September of 2019. Indeed, time is not a material element of a criminal offense unless it is made
so by the statute creating it. 	See United States v. Youngman, 481 F.3d 1015, 1019 (8th Cir.
2007). 	As recognized in Youngman, the use of “on or about in an indictment relieves the
government of proving that the crime charged occurred on a specific date, so long as it occurred
within a reasonable time of the date specified.” Id. (citing United States v. Duke, 940 F.2d 1113,
1120 (8th Cir. 1991)).
To establish a violation of § 924(c), the government must prove that the defendant (1)
committed a drug trafficking crime, and (2) possessed a firearm in furtherance of that crime. See
Untied States v. Robinson, 617 F.3d 984, 988 (8th Cir. 2010) (quotation omitted). 	Clearly, the
date is not a material element of § 924(c)(1) offense. 	Thus, the Government in this case was
only required to demonstrate the possession occurred within a “reasonable time” of the
distribution or within a “reasonable time” of June and July of 2019. Two to three months is not
an unreasonable time, and it is probable the firearm was connected to Costa’s drug trafficking
activity during June and July. 	Thus, his counsel was not ineffective for allowing him to plead
guilty to the § 924(c) charge.
C. Career Offender Classification
For his second claim for relief, Costa alleges his counsel was ineffective because he
failed to object to his classification as a career offender. 	ECF No. 68 at 8-18. 	According to
Costa, one of the predicate offenses for his career offender classification was a conviction made
pursuant to Arkansas Code Annotated § 5-64-403(c)(5)(A). This statute2 provides as follows:
It is unlawful for any person to use, or to possess with intent to use, drug
paraphernalia to manufacture methamphetamine in violation of this chapter. Any
person who pleads guilty or nolo contendere to or is found guilty of violating
subdivision (c)(5)(A) of this section is guilty of a Class B felony.
2 This is the 2008 version of the statute. Costa was charged with violating this statute on
November 12, 2008. See State v. Antone Costa, 26CR-08-542 (2008) (Garland County,
Arkansas Circuit Court).
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Consistent with this statute, the three elements of this offense are the following: (1) possession
with intent to use; (2) drug paraphernalia; and (3) to manufacture methamphetamine. The issue
then becomes whether this conviction qualifies as a “controlled substance” offense as outlined
below.
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 also adds that unlawfully possessing a listed chemical with
intent to manufacture a controlled substance is a “controlled substance offense” and that
unlawfully possessing a prohibited flask or equipment with intent to manufacture a “controlled
substance.” 	Application Note 1 to § 4B1.2 reads in relevant part: “Unlawfully possessing a
prohibited flask or equipment with intent to manufacture a controlled substance is a ‘controlled
substance offense.’” U.S.S.G. § 4B1.2, cmt. n. 1.
With the present Motion, Costa argues the text of the Guidelines only addresses situations
involving actual possession or manufacture of controlled substance or counterfeit substance.
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This argument, however, completely ignores the commentary. Under Eighth Circuit precedent3,
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 Costa’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).
4. 	Recommendation:
Accordingly, based on the foregoing, the Court recommends the Motion (ECF No. 68) 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 1st day of August 2023.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
UNITED STATES MAGISTRATE JUDGE
3 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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