USA v. HENDRICKS et al

DISTRICT COURT OF THE VIRGIN ISLANDS
DIVISION OF ST. CROIX
║
UNITED STATES OF AMERICA 	║
║
Plaintiff, 	║ 	1:04-cr-00005-4
║ 	1:08-cv-00113
v. 	║
║
DANIEL FLEMING, 	║
║
Defendant. 	║
________________________________________________ ║
TO: 	Alphonso G. Andrews, Esq., AUSA
Joycelyn Hewlett, Esq., AUSA
Daniel Fleming, Pro Se, No. 07043-094
FPC Montgomery
Federal Prison Camp
Maxwell Air Force Base
Montgomery, AL 36112
REPORT AND RECOMMENDATION
THIS MATTER is before the Court upon the Order (ECF No. 7) of Chief Judge Wilma
A. Lewis in 1:08-cv-00113 referring Defendant Daniel Fleming’s pro se Motion under 28
U.S.C. § 22551 to Vacate Conviction and Set Aside Sentence (ECF No. 1189)2 to the
undersigned for a report and recommendation. The government filed responses in
opposition to the motion (ECF Nos. 1291, 1313). The time for filing a reply has expired.
For the reasons that follow, the undersigned recommends that said Defendant’s motion be
denied.
1 All citations to the United States Code are to the electronic version that appears in Lexis.
2 All ECF document numbers are as recorded in 1:04-cr-00005-4, unless otherwise noted.
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I. BACKGROUND
On April 4, 2003, Daniel Fleming (hereinafter Defendant) and nine other individuals
were arrested on the charge of Conspiracy to Possess with Intent to Distribute Cocaine.
Warrant of Arrest (ECF No. 9), entered April 10, 2003. Arrests were pursuant to warrants,
probable cause issuing from the statement of DEA Agent Joseph Tokarz who had been
conducting an investigation into the drug conspiracy since June, 2001. Complaint with
Affidavit (ECF No. 1), entered April 7, 2003.
Soon thereafter, an indictment was filed under which Defendant was charged with
eleven counts related to the importation, possession, and distribution of narcotics and with
one count of money laundering. Indictment (ECF No. 10), entered April 11, 2003. He and
five of his co-defendants were tried by jury in the summer of 2005. United States v.
Hendricks, Criminal No. 04-00005 (2005).
At the conclusion of the trial, Defendant was convicted of drug conspiracy,
possession with intent to distribute a controlled substance, distribution, importation, and
money laundering. Verdict (ECF 788), entered August 16, 2005. He was sentenced on May
5, 2006, to serve 15 years. Judgment and Commitment (ECF No. 1005), entered June 30,
2006. His conviction was affirmed by the Third Circuit. United States v. Fleming, 287 Fed.
App’x 150 (3d Cir. 2008).
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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)). As the Davis Court notes, “[H]istory makes clear
that § 2255 was intended to afford federal prisoners a remedy identical in scope to federal
habeas corpus.” Davis, 417 U.S. at 343. However, not every asserted error of law can be
raised in a § 2255 motion. Id. at 346.
In order to prevail on a § 2255 motion, a movant must show one of the following:
1.) the sentence was imposed in violation of the Constitution or the laws of the United
States; 2.) the court was without jurisdiction to impose the sentence; 3.) the sentence was
in excess of the maximum authorized by law; 4.) the sentence is otherwise subject to
collateral attack. 28 U.S.C. § 2255(a). If the court finds any of these grounds, the court must
vacate the judgment, discharge or resentence the petitioner, or grant the petitioner a new
trial as appropriate. Id. § 2255(b).
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)). Thus,
the general rule is that a petitioner “has procedurally defaulted all claims that he neglected
to raise on direct appeal." Hodge, 554 F.3d at 379 (citation omitted); Massaro v. United
States, 538 U.S. 500, 504 (2003). Moreover, a § 2255 petition may not "be used to relitigate
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matters decided adversely on appeal." Government of the Virgin Islands v. Nicholas, 759
F.2d 1073, 1075 (3d Cir. 1985) (citation omitted). However, a petitioner properly raises
ineffective assistance of counsel arguments under § 2255 rather than on direct appeal. See,
e.g., Massaro, 538 U.S. at 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.") (citing United States v. Thornton, 327 F.3d 268, 271 (3d Cir. 2003)).
“A court may dismiss a motion to vacate without . . . holding an evidentiary hearing
when it is clear from both the motion and the record that the movant is not entitled to
relief.” United States v. Delbridge, 504 F. App’x 145, 148 (3d Cir. 2012); 28 U.S.C. § 2255(b).
Further, a court may decide a § 2255 “motion without requiring the production of the
prisoner at the hearing.” 28 U.S.C. § 2255(c). A petitioner's pro se pleading is construed
liberally. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citing Estelle v. Gamble, 429 U.S. 97,
106 (1976)); see also Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 244 (3d Cir. 2013)
(explaining that the liberal construction accorded a pro se litigant's pleadings does not
include the rendering of substantive legal advice).
III. DISCUSSION
To succeed on an ineffective assistance of trial counsel claim a movant must show
both that 1.) counsel's representation was deficient and that 2.) the deficient performance
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“prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984). Regarding
the “deficient” prong, a movant must demonstrate that counsel “made errors so serious as
to deprive the defendant of a fair trial, a trial whose result is reliable.” Id. As for the
prejudice prong, a movant must show “there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would have been
different.” Id. at 694.3 The movant bears the burden of establishing his ineffective
assistance of counsel claims by a preponderance of the evidence. United States v.
Serrano, 798 F. Supp. 2d 634, 641 (E.D. Pa. 2011) (citing Wright v. United States, 624 F.2d
557, 558 (5th Cir. 1980)). A movant “must identify the acts or omissions of counsel that are
alleged not to have been the result of reasonable professional judgment. The court must
then determine whether, in light of the circumstances, the identified acts or omissions were
outside the wide range of professionally competent assistance.” Strickland, 466 U.S. at 690.
Judicial scrutiny of counsel's performance is highly deferential, and a petitioner must
overcome a “strong presumption” that counsel's strategy and tactics “fall[ ] within the wide
range of reasonable professional assistance.” Id. at 689. In addition, “[a]n error by counsel,
even if professionally unreasonable, does not warrant setting aside the judgment of a
criminal proceeding if the error had no effect on the judgment. . . . Accordingly, any
deficiencies in counsel’s performance must be prejudicial to the defense in order to
3 A court has discretion to dispose of a claim at either prong, as there is no required order to the Strickland
inquiry. Strickland, 466 U.S. at 697 (explaining a court need not “determine whether counsel's performance
was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies”
or “address both components of the inquiry if the defendant makes an insufficient showing on one”).
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constitute ineffective assistance under the Constitution.” Id. at 691-92. Thus,
“[s]urmounting Strickland's high bar is never an easy task.” Padilla v. Kentucky, 559 U.S.
356, 371 (2010).
In the matter at bar, Defendant asserts that his conviction and sentence are
unconstitutional due to ineffective assistance of counsel. Defendant claims that his
attorney, Leonard Francis, was ineffective for failing to call alibi witnesses, missing a filing
deadline regarding witnesses, failing to present an expert witness, failing to object to
“missing witness” testimony, and failing to object to a “misidentification.” Motion to Vacate
(ECF No. 1189) at 14. Defendant also asserts that his attorney used cocaine at a party they
both attended and that a conflict arose due to his counsel’s “friendly and professional
relationship over 15 years” with a government witness. Motion to Show Cause and
Submission of Additional Claims (ECF No. 1307) at 2.
A. Witnesses
Defendant asserts ineffective assistance due to counsel’s failure to call alibi
witnesses. His claim stems from the fact that his attorney missed a deadline regarding
these witnesses. While it is true that the court could have barred the proposed witnesses
based on the missed deadline alone, the record shows that it did not.
The court heard from both the government and the defense regarding the efficacy of
the proposed alibis and whether, given the fact that Attorney Francis had missed the
related deadline, the witnesses would be allowed to testify. Ultimately, the court never
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ruled on the issue (though the government argued persuasively against allowing it). And,
while two people did testify about Defendant’s character, neither witness provided an alibi.
Trial Transcript at 94-99, United States v. Hendricks, No. 04-cr-00005 (D.V.I. July 28, 2005);
Id. at 11-13 (July 29, 2005).
It appears from the record that Defendant’s alibi witnesses intended to testify
regarding Defendant’s whereabouts on March 1, 2003. Trial Transcript at 6-8, United
States v. Hendricks, No. 04-cr-00005 (D.V.I. July 28, 2005); Id. at 13 (July 29, 2005). Even
without the alibi witnesses to testify as to this day, the jury returned “not-guilty” verdicts
on Counts Seven, Eight, Nine, and Ten, the only counts to specify the singular dates of
March 1, 2003 and March 2, 2003. Verdict (ECF Nos. 777, 788), entered August 16, 2005.
All other Counts under which Defendant was charged and convicted provided a range of
dates or a non-specific date, such as “on or about March, 2001.” Superseding Indictment
(EFC No. 544), entered October 1, 2004 at 7.
Defendant does not provide specifics as to the persons, places, dates, and times of
his proposed alibi witnesses. Nor does he claim actual innocence. Even if the alibi
witnesses had been allowed to testify, it is not clear that their testimony would have made
any difference. The government built its case on direct and circumstantial evidence
gathered over the course of a multi-year investigation that included the use of audio and
video surveillance, wiretaps, and the cooperation of confidential informants. In addition to
witness testimony, evidence presented to the jury included audio tapes with Defendant’s
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voice and video that showed Defendant, his home, and his place of employment. Because
there is no evidence that the result of the proceeding would have been different but for the
testimony of alibi witnesses, the court must find that Defendant was not prejudiced.
B. Hector Rivera
Defendant alleges ineffective assistance due to his attorney’s failure to have
recordings and statements made by Hector Rivera stricken from the record.
The recordings and other alleged testimonial statements made by Hector Rivera
were vigorously challenged: by motion during trial (Trial Transcript at 229-245, United
States v. Hendricks, No. 04-cr-00005 (D.V.I. July 26, 2005)); by post-trial motion (Motion for
Judgment of Acquittal (ECF No. 908)); and by appeal (United States v. Hendricks, 395 F.3d
173 (3d Cir. 2005)). In 2008, the Third Circuit addressed the issue again, writing:
One of the government’s planned witnesses, Hector Rivera, who was
originally involved in the narcotics conspiracy with the co-defendants and
became a confidential informant (“CI”), provided the government with taped
conversations, videos of drug transactions, and information leading to a
wiretap of the co-defendants. Prior to trial, Rivera was murdered by an
unknown person. The District court then denied the government’s motion in
limine seeking to admit conversations involving Rivera, based on its reading
of Crawford v. Washington, 541 U.S. 26 (2004). The government appealed
that order and we reversed. See United States v. Hendricks, 395 F.3d 173 (3d
Cir. 2005) (“Hendricks I”). The case proceeded to trial and the jury convicted
Hendricks, Robinson, and Fleming of three conspiracy counts: to import
drugs, to distribute drugs, and to launder money. In addition, Hendricks and
Fleming were convicted of narcotics possession and distribution, and
Hendricks was convicted of three additional counts of narcotics possession
and distribution.
United States v. Fleming, 287 Fed. App’x 150, 152 (3d Cir. 2008).
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Reviewing the question of Hector Rivera’s recordings de novo, the Third Circuit
found that the video and audio recordings made by Hector Rivera were not testimonial,
were admissible under Federal Rules of Evidence 801(d)(2), and were rightly admitted by
the district court. Id.
Not only is this issue effectively barred, having been twice raised on appeal, the
evidence is clear that defense counsel’s performance was not deficient.
C. 	Misidentification
Defendant claims ineffective assistance due to counsel’s failure to have an alleged
misidentification of Defendant suppressed. During trial, Agent Tokarz was questioned
about this “misidentification”:
BY ATTORNEY SULZBACH:
Q. 	Now, when you first identified Daniel Fleming in one of your
reports, you were doing that based off of a description that you
received from Anthony Ottley, correct?
A. 	Yes, that’s correct.
Q. 	And Anthony Ottley told you that Daniel Fleming was a light-
skinned male?
A. 	Yes, that’s correct.
Q. 	And then you mistakenly –
MR. FRANCIS: Objection in regards to “mistakenly,” Your
Honor.
THE COURT: Overruled.
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Q. 	And then you mistakenly took “light-skin male” for “Caucasian
male?”
A. 	I did.
Q. 	Now, did there come a time when you learned the correct
description of Daniel Fleming?
A. 	Not really. In December of 2002, I was able to get a driver’s
license photo of Daniel Fleming and I put that in a report. And I
was able to identify his date of birth and Social Security
Number, stuff like that. That report, he was, listed him as a
Hispanic male.
Q. 	According to the driver’s license?
A. 	Yes. Well, actually it doesn’t say it on the driver’s license. And I
don’t - - to be honest, I don’t remember where the Hispanic
came from. I have tried to pull up his DMV stuff but I haven’t
been able to.
Q. 	So at some point, once you actually - - besides talking to your
witnesses, once you actually got to see Daniel Fleming, you
corrected your reports?
A. 	I don’t know if I ever corrected the reports. But clearly, the
person I had in the driver’s license photo was that of Daniel
Fleming, and that’s the same person that I arrested.
Q. 	Okay. How do you know that? How are you so certain of that?
A. 	I arrested him and he matches the picture in his driver’s
license photo.
Q. 	All right.
A. 	And his name is Daniel Fleming.
And when I arrested him, I asked him, Are you Daniel
Fleming?”
And he said, “Yes.”
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Trial Transcript at 160-161, United States v. Hendricks, No. 04-cr-00005 (D.V.I. July 27,
2005).
The mere fact that Agent Tokarz made a mistake in his report or that Attorney
Francis was unable to have the “misidentification” suppressed, without more, is insufficient
to conclude that counsel’s performance fell below the standard of reasonable professional
assistance. Defendant does not claim actual innocence: He has not said, “That is not me.”
His only complaint is that he was “misidentified.” Nor can he demonstrate prejudice from
his attorney’s inability to convince the court to suppress this so-termed misidentification.
Finally, it bears repeating that the government presented audio and video recordings by
which the jury could make their own determination as to whether the accused was indeed
the Daniel Fleming sitting in the courtroom. On this issue, his arguments simply fail.
D. Expert Witness
Defendant claims ineffective assistance of counsel because an expert witness was
not presented to testify to a medical condition that allegedly prevents Defendant from
lifting and carrying heavy objects. Motion to Vacate (EFC 1189) at 8.
The jury found that the Defendant participated in a conspiracy and aided and
abetted. Regarding the amount, or weight, of the drugs attributed to Defendant, the judge
instructed the jury:
For the purposes of determining the amount of drug for which a defendant is
responsible, a person who has been found guilty by you of conspiracy to
distribute an illegal drug, you are to determine the amount of drug that
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defendant knew, had actual knowledge of, being part of the conspiracy
and/or the amount of illegal drug that the defendant reasonably foresaw
being obtained or utilized for purposes of distribution by the conspiracy, by
coconspirators within the conspiracy.
A person who may join a conspiracy that’s already existing may not know the
amount of illegal drugs distributed before he joined the conspiracy. But
knowledge of what were the aims and goals of the conspiracy, and
knowledge of the actions of the coconspirators as may have existed in the
past, may inform reasonably the coconspirator as to what reasonably to
expect in the future.
So, for conspiracy purposes, in determining amount, you look at what the
defendant actually knew about, and what the person reasonably could
foresee. “Foresee” means looking into the future.
For the actual distribution charges, called substantive counts, the
nonconspiracy counts, you have found that a defendant there either acted
knowingly to bring about the possession with the intent to distribute, or that
person aided and abetted.
Under aiding and abetting, you’ll recall that a person who aids and abets is as
responsible as the person who is the principal actor. So the reasonable
foreseeability test does not apply to the substantive counts.
Under aiding and abetting, as you will recall, a person must be shown to
know of the criminal venture and then participate in it in some way so as to
try to bring it about.
And so such a person who is an aider and abettor, knowing what’s going
down, becomes responsible for the criminal act as if that person had
physically performed the act, the physical act of obtaining drugs or
distributing drugs, as the case may be.
Trial Transcript at 7-9, United States v. Hendricks, No. 04-cr-00005 (D.V.I. Aug. 4, 2005).
Attorney Sulzbach’s guidance was more direct: “The court has instructed you, and
will instruct you, it doesn’t matter whether . . . Daniel Fleming . . . ever put their hands on
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any drugs, personally touched drugs, possessed drugs, distributed drugs.” Trial Transcript
at 50-51, United States v. Hendricks, No. 04-cr-00005 (D.V.I. Aug. 4, 2005).
Expert testimony that Defendant could not have lifted or carried something due to
an injury or disability was unnecessary. A finding by the jury that one of the coconspirators
was responsible for five or more kilograms of cocaine meant that the jury could find that all
members of the conspiracy were responsible for five or more kilograms of cocaine.
Defendant asserts that his expert witness would have testified that it was
impossible for Defendant to lift and carry over one hundred kilograms of cocaine. Motion
to Vacate (ECF 1189) at 8. But the government only sought to prove that Defendant carried
6 kilograms of cocaine. Evidence that Defendant worked as a handyman, that he repaired
air conditioners, that he engaged in physical activity related to his job, meant that the jury
had evidence upon which they could reasonably conclude that regardless of injury or
disability, Defendant could have engaged in the activity alleged: carrying 6 kilos
(approximately 13 pounds) of cocaine. Further, the jury was able to make their own
assessment of Defendant’s physical capabilities based on their viewing of the video tapes
entered into evidence.
Defendant submits that he was in a serious car accident and as a result he has had
several surgical procedures to re-build his hip. These facts do not persuade the court that
the jury would have come to a different conclusion if only they had heard from an expert.
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Therefore the court must find that the absence of expert testimony as to Defendant’s
medical condition did not prejudice his defense.
E. 	Drug Use
Defendant asserts that he did not receive effective assistance of counsel because
Attorney Francis used cocaine at a party they both attended. "Under Strickland the fact that
an attorney used drugs is not, in and of itself, relevant to an ineffective assistance claim.
The critical inquiry is whether, for whatever reason, counsel's performance was deficient
and whether that deficiency prejudiced the defendant." Berry v. King, 765 F.2d 451, 454
(5th Cir. 1985) (italics in original); accord United States v. Washington, 869 F.3d 193, 204
(3d Cir. 2017) ("[I]n order for an attorney's alcohol addiction to make his assistance
constitutionally ineffective, there must be specific instances of deficient performance
attributable to alcohol.") (quoting Frye v. Lee, 235 F.3d 897, 907 (4th Cir. 2000)).
Defendant points to no specific instances in which Attorney Francis’s performance
during trial was deficient because of drug use. Failing a showing that “any impairment
caused specific errors during trial” or that any harm occurred due to the alleged drug use,
the court must reject Defendant’s contention that his attorney's alleged drug use resulted
in ineffective assistance of counsel. Burnett v. Collins, 982 F.2d 922, 930 (5th Cir. 1993).
See also, Tucker v. United States, 2012 U.S. Dist. LEXIS 136473, at *35-37 (S.D.N.Y.
September 24, 2012) (explaining that “[ ] even where it is established or assumed that trial
counsel had an ongoing substance abuse problem, the petitioner must still demonstrate
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that: (1) counsel's performance fell below an ‘objective standard of reasonableness’ under
‘prevailing professional norms,’ and (2) ‘affirmatively prove prejudice’ from the alleged
dereliction in counsel's performance.”).
F. 	Conflicts
Defendant claims ineffective assistance of counsel due to a conflict arising from
Attorney Francis’s prior personal and professional relationship with government witness
Rudy Clarke.
In order to establish a violation of the Sixth Amendment, a defendant who raised no
objection at trial must demonstrate that an actual conflict of interest adversely affected his
lawyer's performance. Cuyler v. Sullivan 446 U.S. 335, 348 (1980). Defendant has failed to
demonstrate an actual conflict, nor has he shown that the outcome of his trial would have
been different but for the alleged conflict.
G. Prejudice
“An error by counsel, even if professionally unreasonable, does not warrant setting
aside the judgment of a criminal proceeding if the error had no effect on the judgment.”
Strickland, 466 U.S. at 691 (quoting Cf. United States v. Morrison, 449 U. S. 361, 449 U. S.
364-365 (1981)). The record in this case does not demonstrate prejudice. The jury
received evidence, independent of the alleged errors, upon which they could have returned
a guilty verdict.
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As has been shown herein, the court reviewed the record and found no evidence
that the result of the trial would have been different but for counsel’s alleged errors.
Additionally, Defendant failed to present any evidence establishing "a reasonable
probability that, but for counsel's unprofessional errors, the result of the proceeding would
have been different." Strickland, 466 U.S. at 694.4
H. Sentence
Defendant argues that his sentences on Counts 1, 2, 3, and 11 were erroneous due to
ineffective assistance of counsel and that there was no credible evidence to support the
jury’s findings in terms of the amount of cocaine.5 Motion (ECF No. 1189) at 16. Defendant
further argues that his sentence on Count 12 should be vacated due to ineffective
assistance of counsel, because no evidence was presented to support the elements of the
crime,6 and because the judge did not follow the formula set forth in 18 U.S.C. § 3553(a).
Motion to Vacate (ECF No. 1189) at 15.
4 "A reasonable probability is a probability sufficient to undermine confidence in the outcome," and "[i]t is not
enough for the defendant to show that the errors had some conceivable effect on the outcome of the
proceeding." Strickland, 466 U.S. at 693.
5 Evidence presented to the jury included that in March 2001, Defendant handed Witness Ottley six bricks
(approximately 6 kilograms) of cocaine. Trial Transcript at 234-237, United States v. Hendricks, No. 04-cr-
00005 (D.V.I. July 18, 2005). In closing arguments Assistant U.S. Attorney Sulzbach told the jury: “You heard
evidence from Anthony Ottley that he sold six and a half kilos of cocaine to Christopher Schoenbohm and
Hector Rivera . . . when it came time to actually hold the drugs, deliver the drugs, it was none other than
Daniel Fleming who showed up to deliver the drugs.” Id. at 23 (August 1, 2005). In the drug amounts and
forfeiture proceedings Attorney Sulzbach told the jury: “Rudy Clark told you about eight (kilos). David Peltier
told you about 18 in just one of the four trips. You have a conversation with Elroy Dowe and Hector Rivera
for eight. We brought you four actual kilos. . . . And that’s just some of the evidence, ladies and gentlemen, but
it certainly has shown that there are at least five kilos involved.” Id. at 51 (August 4, 2005).
6 Evidence presented to the jury regarding Defendant’s involvement in money laundering included
Defendant’s signature on the signature card from the bank, transaction documents, and witness testimony.
Trial Transcript at 122-23, United States v. Hendricks, No. 04-cr-00005 (D.V.I. July 26, 2005). Witness
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At his sentencing hearing, Defendant was represented by Attorney Francis and
stand-by counsel Attorney Judith Bourne. Throughout Defendant’s sentencing hearing
arguments made by Attorney Francis and statements made by Defendant appear to have
influenced the judge’s decision to sentence Defendant to 180 months, a sentence below the
Federal Sentencing Guidelines.7 For example, the government argued that the money
laundering count was sophisticated. After Attorney Francis’s rebuttal, the court found that
even though there was a sophisticated money laundering scheme (and Defendant was
convicted of conspiracy) Defendant’s level of participation in the scheme was not one of
sophistication. The court thereby eliminated the two-level increase for sophistication and
adjusted the sentencing level downward to level 38. Sentencing Transcript at 12, United
States v. Fleming, No. 04-cr-00005 (D.V.I. May 5, 2006).
After hearing from the government, from defense counsel, and from Defendant, the
Court sentenced Defendant to 15-year sentences on Counts 1, 2, 3, and 11 to run
concurrently with each other and a 10-year sentence on Count 12 to run concurrently with
the 15-year sentences. Judgment and Commitment (ECF 1005), entered June 30, 2006. The
Court also granted full credit toward his prison term for all time that Defendant spent in
custody awaiting disposition of the trial and the sentence. Sentencing Transcript at 47,
testimony included that in March 2001 Defendant loaded boxes and duffle bags into Ottley’s plane. After
flying Hendricks and the cargo loaded by Defendant, Ottley testified that he learned there was at least
$600,000 on his plane during that flight. Trial Transcript at 212-218, United States v. Hendricks, No. 04-cr-
00005 (D.V.I. July 18, 2005).
7 United States Sentencing Commission Guidelines Manual (2005).
https://www.ussc.gov/sites/default/files/pdf/guidelines-manual/2005/manual/GL2005.pdf. Accessed
January 5, 2018.
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United States v. Fleming
1:04-cr-00005-4; 1:08-cv-00113
Report and Recommendation
Page 18
United States v. Fleming, No. 04-cr-00005 (D.V.I. May 5, 2006). Given that Defendant was
free on bond from the time of his arrest in 2003 until his sentencing in 2006, this would
have amounted to a significant amount of jail credit.
The court asked if anyone had objections about or changes to the presentence
investigation report. Neither Defendant nor his counsel objected to the report nor the
offense level of 40, which, as noted above, the Court then lowered to 38. Defense counsel
and Defendant were also permitted to address the jury’s findings and to speak to
Defendant’s character. In pronouncing sentence, the court acknowledged applying the
standards of § 3553(a):
I’ve considered the nature and circumstances of the offenses, the history, the
characteristics of the defendant, I’ve read the letters of recommendation
made on his behalf.
The sentence imposed is one that conveys the seriousness of the offense to
the public. It is consistent with the public’s respect for law. It is adequate to
deter criminal conduct in others and in the defendant. It is one that is
sufficient to protect the public from further crimes by this defendant, and it is
a sentence that is consistent with the defendant’s need to serve his debt to
society and be able to return to this community to do lawful work as a citizen
of this community.
Sentencing Transcript at 44-45, United States v. Fleming, No. 04-cr-00005 (D.V.I. May
5, 2006).
The court listened to Defendant’s allocution, defense and government arguments,
then stated:
The jury’s decisions are inconsistent with the defendant’s allocution, and
while the court has heard that, and it’s passionate, the jury considered a lot of
Case: 1:04-cr-00005-WAL-EAH Document #: 1415 Filed: 01/12/18 Page 18 of 20

United States v. Fleming
1:04-cr-00005-4; 1:08-cv-00113
Report and Recommendation
Page 19
information, which the court finds and has found to justify the court’s
decision.
The sentence imposed is a reasonable sentence under all of the
circumstances. The evidence in the case is consistent with Mr. Fleming being
used by Mr. Hendricks, and there is a quantum of information consistent with
his knowledge of drug activity and that he was being used for a drug purpose
of Mr. Hendricks.
Consider, for example, the testimony of Mr. Ottley. Consider the fact that Mr.
Fleming was trusted with large amounts of cocaine. Those are consistent
with knowledge, not ignorance.
The sentence is a sentence that has considered the Sentencing Guidelines,
and the court has considered Mr. Fleming’s level of involvement as being less
than that which is punishable in accordance with the Guideline range.
Sentencing Transcript at 43-44, United States v. Fleming, No. 04-cr-00005 (D.V.I. May 5,
2006).
On May 9, 2016, the district court denied Defendant’s Motion for Sentence
Reduction and Retroactive Application of Amendment 782 of the Sentencing Guidelines,
finding that Defendant’s sentence of 180 months is “eight (8) months less than the
amended minimum guideline range of 188-235 months applicable to him under
Amendment 782.” Order (ECF No. 1389), entered May 9, 2016 at 1.8
The record shows that Defendant was not prejudiced by ineffective assistance of
counsel at his sentencing. The court calculated the sentence according to the federal
8 Defendant’s release date is currently set for September 17, 2018, https://www.bop.gov/inmateloc/.
Accessed January 2, 2018.
Case: 1:04-cr-00005-WAL-EAH Document #: 1415 Filed: 01/12/18 Page 19 of 20

United States v. Fleming
1:04-cr-00005-4; 1:08-cv-00113
Report and Recommendation
Page 20
guidelines, considered the factors in § 3553(a), listened to and considered the arguments of
the government, defense counsel, and Defendant and applied those in making its decision.
IV. CONCLUSION
Based upon the foregoing, IT IS HEREBY RECOMMENDED that Petitioner Daniel
Fleming’s Motion under 28 U.S.C. § 2255 to Vacate Conviction and Set Aside Sentence (ECF
No. 1189) be DENIED without an evidentiary hearing;9 and
it is further recommended that a certificate of appealability be DENIED.10
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: January 12, 2018 	/s/ George W. Cannon, Jr.
GEORGE W. CANNON, JR.
MAGISTRATE JUDGE
9 The question of whether to order an evidentiary hearing when considering a motion to vacate a sentence
under § 2255 “is committed to the sound discretion of the district court.” Government of Virgin Islands v.
Forte, 865 F.2d 59, 62 (3d Cir. 1989). A § 2255 evidentiary hearing “is unnecessary when the ‘files and
records of the case conclusively show that the prisoner is entitled to no relief.’” United States v. Padilla–
Castro, 426 F. App’x 60, 63 (3d Cir. 2011) (quoting 28 U.S.C. § 2255(b)). The record in this case conclusively
shows that Fleming is not entitled to relief.
10 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). A district court will issue a
certificate of appealability only upon a finding of a “substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2). Here, the record fails to show a violation of Fleming's constitutional rights.
Accordingly, a certificate of appealability should be denied.
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