UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ____________________________________ ) UNITED STATES OF AMERICA, ) ) v. ) Crim. Action No. 15-0096 (1) (ABJ) ) LAMONT DELRICO ROBERTS, ) ) Defendant. ) ____________________________________)

AMENDED MEMORANDUM OPINION

On November 18, 2016, defendant Lamont Delrico Roberts was sentenced to seventy-two

months of incarceration after his plea of guilty to unlawful distribution of twenty-eight grams or

more of cocaine base, in violation of

(a)(1) and 841(b)(1)(B)(iii). See J. in a

Criminal Case [Dkt. # 49] (“J & C”). He now seeks to vacate that sentence pursuant to

. Mot. Under

to Vacate, Set Aside, or Correct Sentence [Dkt. # 52]

(“Def.’s Mot.”). Roberts argues that the Court’s calculation of the sentencing guidelines was

incorrect, and that his counsel was ineffective because: he “failed to fight and argue the

reasonableness of [the] sentence;” he failed to advise Roberts of his right to a direct appeal; and

he failed to argue that the Court’s sentence would cause an unwarranted disparity as to his co-

defendant.

. Because defendant’s argument about the sentencing guidelines is foreclosed

by his plea agreement and incorrect in any event, and because he has not demonstrated that his

representation was constitutionally deficient, the Court will deny the motion without a hearing.

BACKGROUND

Beginning in the summer of 2014, defendant sold cocaine base on multiple occasions to an

undercover Metropolitan Police Department officer. Statement of Offense [Dkt. # 37] at 1. On May 5, 2015, he was charged with ten counts of unlawful distribution of cocaine base in violation

of

(a)(1) and 841(b)(1)(B)(iii). Superseding Indictment [Dkt. # 4] (“Indictment”).

Defendant ultimately agreed to plead guilty to Count Nine of the Indictment, which

charged him and his co-defendant Randy Jarell Johnson with one count of unlawful distribution

of cocaine base. 1 Indictment at 4. As part of his plea agreement, defendant acknowledged that he

was pleading guilty to an offense that carried a mandatory minimum sentence of five years of

incarceration. Plea Agreement [Dkt. # 36] at 1. At the time of his plea, he agreed that his estimated

sentencing guidelines range would be between 87 to 108 months, and that a sentence within that

range would be reasonable.

¶¶ 3–4.

The Court accepted defendant’s guilty plea on August 8, 2016. See Tr. of Plea Hr’g [Dkt.

# 61] (“Plea Hr’g”) at 24:3–9. On November 18, 2016, the Court sentenced defendant to seventy-

two months of incarceration, followed by forty-eight months of supervised release. See J & C at

2–3. Defendant did not file a direct appeal.

On March 7, 2017, defendant filed this motion under

, challenging his

sentence and claiming that he received ineffective assistance of counsel. Def.’s Mot. Mr. Roberts

also sent a letter to the Court that was docketed as part of these proceedings on April 13, 2017.

Letter to the Court [Dkt. # 56]. The government then opposed the motion. Opp. to Def.’s Mot.

[Dkt. # 58]. Defendant did not file a reply, but he did send two more letters to the Court, which

were docketed on June 8 and July 18, 2017. Letter [Dkt. # 65]; Letter [Dkt. # 67].

1 Johnson agreed to plead guilty to count one of a Superseding Information which charged him with unlawful distribution of cocaine base in violation of

(a)(1) and 841(b)(1)(C). Plea Agreement [Dkt. # 16] at 1; Superseding Information [Dkt. # 13]. The Court sentenced Johnson to forty-eight months of supervised release, and as a condition of his release, he was require to serve fifty consecutive weekends in jail. Johnson Sentencing Hr’g [Dkt. # 60] at 20:24, 22:6. 2 STANDARD OF REVIEW

To prevail on a motion to vacate a sentence under

, a defendant must show

that his “sentence was imposed in violation of the Constitution or laws of the United States, or that

the court was without jurisdiction to impose such sentence, or that the sentence was in excess of

the maximum authorized by law, or is otherwise subject to collateral attack.”

(a).

The defendant bears the burden of proving his claims by a preponderance of the evidence. See

United States v. Simpson,

(D.C. Cir. 1973). “Relief under § 2255 is an

extraordinary remedy in light of society’s legitimate interest in the finality of judgments.” United

States v. Zakas,

(D.D.C. 2011). So in a section 2255 proceeding, the

defendant “must clear a significantly higher hurdle than would exist on direct appeal.” United

States v. Frady,

(1982). And “[t]o have a plea set aside on a section 2255

petition, the petitioner ‘must show that the plea proceeding was tainted by a fundamental defect

which inherently results in a complete miscarriage of justice or an omission inconsistent with the

rudimentary demands of fair procedure.’” United States v. Weaver,

(D.C.

Cir. 2001), quoting United States v. Farley,

(D.C. Cir. 1995); see also Hill v.

United States,

(1962).

In considering a section 2255 motion, a district court shall grant a hearing “[u]nless the

motion and the files and records of the case conclusively show that the prisoner is entitled to no

relief.”

(b). The rules governing section 2255 proceedings add that “[i]f it plainly

appears from the motion, any attached exhibits, and the record of prior proceedings that the moving

party is not entitled to relief, the judge must dismiss the motion.” Rules Governing § 2255

Proceedings, Rule 4(b), 28 U.S.C. foll. § 2255. The decision to grant a hearing “is committed to

the district court’s discretion.” United States v. Pollard,

, 1030–31 (D.C. Cir. 1992).

And a “district judge’s decision not to hold an evidentiary hearing before denying a § 2255 motion 3 is generally respected as a sound exercise of discretion when the judge denying the § 2255 motion

also presided” over the defendant’s original proceeding. United States v. Morrison,

,

625–26 (D.C. Cir. 1996); see also United States v. Toms,

(D.C. Cir. 2005),

quoting Morrison,

; United States v. Sayan,

(D.C. Cir. 1992).

Ultimately, the “summary denial of a § 2255 motion is appropriate . . . when the [claims do] not

necessitate the consideration of any information not within the record or within the memory of the

judge ruling on the motion.” Morrison,

.

ANALYSIS

Defendant has attacked his conviction on two grounds. First, he contends that the Court

incorrectly calculated his sentencing guidelines range, and that it consequently imposed an

erroneous sentence. Def.’s Mot. at 6–7. Second, he argues that he received ineffective assistance

of counsel. See id. at 5. Specifically, defendant claims that his lawyer failed to argue that the

sentence to be imposed was unreasonable, failed to argue that his sentence would cause an

unwarranted sentencing disparity between defendant and his co-defendant, and failed to advise

him of his right to appeal. Id.

Defendant is barred from challenging the Court’s calculation of his sentencing guidelines

range because he waived his right to make such an attack in his plea agreement. He has also failed

to allege any prejudice arising out of his allegations of ineffective assistance of counsel. Because

the “motion and the files and records of the case conclusively show that the prisoner is entitled to

no relief,”

(b), defendant’s motion will be denied without an evidentiary hearing.

I. Defendant’s claim that the Court erred in calculating his sentencing guidelines range is barred by his plea agreement, and it is incorrect in any event.

Defendant argues that his “sentence of 72 months was unreasonable” because the Court

“raised my level 2 points for a crime I was later found not guilty of,” and he submits that his base

4 offense level “should have been level 24 with a guideline range of 51 to 63 months.” Def.’s Mot.

at 5.

Defendant’s challenge to the sentence imposed by the Court is foreclosed by his plea

agreement. Defendant agreed in his plea that he was waiving the right to file a motion under

section 2255 except under limited circumstances:

Your client also waives any right to challenge the conviction entered or sentence imposed under this Agreement or otherwise attempt to modify or change the sentence or the manner in which it was determined in any collateral attack, including, but not limited to, a motion brought under

or Federal Rule of Civil Procedure 60(b), except to the extent such a motion is based on newly discovered evidence or on a claim that your client received ineffective assistance of counsel in entering this Agreement or in connection with sentencing.

Plea Agreement at 6. And defendant confirmed during the plea hearing that he understood that

he was waiving those rights:

THE COURT: [D]o you also understand that sometimes after people have been convicted of an offense they attack their conviction in a separate legal proceeding under Federal Rule of Civil Procedure 60(b) or a section of the U.S. Code called

. Basically they come back in and they say my conviction was illegal for various reasons. Do you understand that you’re giving up the right to do that, too, unless there’s newly discovered evidence or evidence that shows your counsel was ineffective in entering this agreement or at sentencing? Do you understand that?

THE DEFENDANT: Yes ma’am.

Plea Hr’g at 10:15–25.

“Although the analogy may not hold in all respects, plea bargains are essentially contracts.”

Puckett v. United States,

(2009). Here, the Court will enforce the agreement,

which was knowing, intelligent, and voluntary. See United States v. Adams,

(D.C. Cir. 2015) (enforcing the waiver of a defendant’s right to appeal when the waiver is knowing,

intelligent, and voluntary), citing United States v. Guillen,

(D.C. Cir. 2009).

5 And in any event, defendant is wrong that the Court miscalculated the applicable total

offense level. The Plea Agreement stipulated that the “Guidelines Offense Level will be at least

27,” and that defendant’s “estimated sentencing guidelines range is 87 to 108 months.” Id. ¶ 3.

Roberts also agreed that “a sentence within the Estimated Guidelines Range would constitute a

reasonable sentence in light of all of the factors set forth in

(a),” although he

“reserve[d] the right to seek a sentence below the Estimated Guidelines Range.”

. And, as

defendant acknowledged during the plea colloquy, he was subject to a Congressionally-mandated

five-year minimum sentence.

THE COURT: [Y]ou understand that in any event, [the sentence to be imposed] can’t be less than 60 months, which is five years?

THE DEFENDANT: Yes.

Plea Hr’g at 19:23–25.

As part of his plea, defendant admitted that he sold a total of approximately 548.3 grams

of cocaine base to an undercover officer in a series of nine controlled purchases. Statement of

Offense [Dkt. # 37] at 1–2. Based on those facts, the Court calculated the applicable sentencing

guidelines as follows:

x Pursuant to section 2D1.1 of the Sentencing Guidelines, the Base Offense Level for a violation of

(a)(1) and (b)(1)(B)(iii) involving 280 to 840 grams was 30. U.S.S.G. § 2D1.1.

x A three level reduction for acceptance of responsibility brought the offense level to 27. U.S.S.G. § 3E1.1.

x Defendant was found to have a criminal history score of 5 points (two points for a 2004 conviction for interstate transportation of stolen property arising out of his use of a financed SUV as a trade- in on another vehicle when he had failed to pay for the SUV and falsely represented that there were no outstanding liens on the vehicle; one point for a 2013 threats and destruction of property conviction; and two points for being under a criminal justice sentence at the time of the commission of the offense) which

6 resulted in a Criminal History Category of III, and a recommended sentencing guideline range of 87 to 108 months. See U.S.S.G. §§ 4A1.1, 5A.

Roberts Sentencing Hr’g [Dkt. # 62] at 5:2–20.

The defense did not object to this calculation of the Guidelines in the Presentence Report.

Indeed, this was the Guideline range that had been estimated by the parties in the Plea Agreement,

Plea Agreement at 3; that the parties had agreed would be reasonable, id. at 4; and that was

specifically discussed with the Court at the time of the plea. Plea Hr’g at 19:12–22. The Court

noted at the time of the sentencing that if Roberts had fallen within Criminal History Category II

instead of III, the advisory sentencing Guideline range would have been 78 to 97 months. Roberts

Sentencing Hr’g at 5:16–20. And in the end, the Court ultimately sentenced defendant to a term

that fell below either range: 72 months. See id. at 16:3; J & C at 2–3. So defendant’s contention

that the Court miscalculated the sentencing guidelines lacks merit, and the defendant was not

prejudiced in any way by the claimed miscalculation.

II. Defendant’s ineffective assistance of counsel claim must fail because he has not shown that he was prejudiced by his counsel’s alleged deficiencies.

Defendant also argues that his counsel was ineffective for three reasons. First, he claims

that his attorney “failed to fight and argue the reasonableness of [his] sentence.” Def.’s Mot. at 4.

Second, he contends that his attorney failed to argue that the sentence to be imposed would create

an unwarranted sentencing disparity among the two defendants. Id. Finally, he claims that his

attorney never advised him of his right to file a direct appeal. Id.

The Sixth Amendment guarantees “the right to the effective assistance of counsel.”

Strickland v. Washington,

(1984), quoting McMann v. Richardson,

, 771 n.14 (1970); see U.S. Const. amend. VI. A defendant asserting an ineffective assistance

of counsel claim “must show (1) ‘that counsel’s performance was deficient,’ and (2) ‘that the

7 deficient performance prejudiced the defense.’” United States v. Cassell,

(D.C. Cir. 2008), quoting Strickland,

; see also Knowles v. Mirzayance,

(2009). “Failure to make the required showing of either deficient performance or

sufficient prejudice defeats the ineffectiveness claim.” Strickland,

.

To prove deficient performance, the defendant must show “that counsel’s representation

fell below an objective standard of reasonableness.” Knowles,

, quoting Strickland,

466 U.S. at 687–88. “Judicial scrutiny of counsel’s performance must be highly deferential.”

Strickland,

. And “[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.”

So “a court must indulge a strong presumption that counsel’s conduct falls within the wide

range of reasonable professional assistance.” Knowles,

, quoting Strickland,

.

To establish prejudice, “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.”

United States v. Goodwin,

(D.D.C. 2009), quoting Strickland,

. “A reasonable probability is a probability sufficient to undermine confidence in the

outcome.” Strickland,

. “It is not enough for the defendant to show that the errors

had some conceivable effect on the outcome of the proceeding,” because “[v]irtually every act or

omission of counsel would meet that test.”

. Rather, a defendant must establish that

“counsel’s conduct so undermined the proper functioning of the adversarial process” that the

outcome cannot be relied on as just.

. “Prejudice cannot result from an attorney’s failure

to pursue a frivolous claim.” United States v. Geraldo,

(D.C. Cir. 2001).

8 The Court will begin and end its analysis with the question of whether the alleged

deficiencies prejudiced the defendant. See, e.g., Strickland,

(“[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.”); In re Sealed Case,

(D.C. Cir. 2007) (“We therefore turn directly to the question of whether the defendant suffered

prejudice due to his counsel’s deficient performance.”).

“[T]he burden of establishing prejudice falls squarely on [defendant’s] shoulders.” United

States v. Newman,

(D.C. Cir. 2015). Here, defendant has failed to make the

necessary showing of prejudice on any issue.

A. Defendant cannot show prejudice with regard to his attorney’s alleged failure to advise him that he could appeal.

There can be no prejudice stemming from any alleged failure to advise defendant of his

right to appeal because defendant agreed to waive his right to file a direct appeal except under

limited circumstances. Defendant’s plea agreement contains the following provision:

Your client understands that federal law, specifically

, affords defendants the right to appeal their sentences in certain circumstances. Your client agrees to waive the right to appeal the sentence in this case, including any term of imprisonment, fine, forfeiture, award of restitution, term of supervised release, authority of the Court to set conditions of release, and the manner in which the sentence was determined, except to the extent the Court sentences your client above the statutory maximum or guidelines range determined by the Court, in which case your client would have the right to appeal the illegal sentence or above-guidelines sentence, but not to raise on appeal other issues regarding the sentencing.

Plea Agreement at 6. Defendant acknowledged this waiver during the plea hearing:

THE COURT: [D]o you understand that if you went to trial and you were convicted, you would have had the right to appeal your trial to the Court of Appeals and to have your lawyer help you file that appeal; you understand that?

THE DEFENDANT: Yes.

9 THE COURT: And people go to a higher court and they say, [t]hat judge made a mistake in my trial. But do you understand that by pleading guilty, you’re giving up your right to appeal? The only thing you can appeal is if I sentence you illegally, to more than the statute requires, or if I apply the guidelines and depart upwards. But you don’t get to go upstairs and say, [w]ell, I wasn’t really guilty, that judge made a mistake. You’re giving that right up. Do you understand that?

THE DEFENDANT: Yes.

Plea Hr’g at 9:17–10:6. And the Court advised defendant of his right to appeal at the conclusion

of the sentencing proceeding.

THE COURT: Mr. Roberts, you have the right to appeal the sentence imposed by this Court. I believe in this case only if it exceeded the statutory maximum or the guideline range for your case, which it doesn’t. But I want to tell you anyway, you have the right to appeal. If you choose to appeal, you have to file it within 14 days after the Court enters judgment. And if you’re unable to afford the cost of appeal, you may request permission from the Court to file an appeal without cost to you.

Roberts Sentencing Hr’g at 18:13–21. The Court did not sentence defendant in excess of the

statutory maximum, nor did it depart upward from the Guidelines, so any appeal would have been

frivolous.

B. Defendant cannot show that he was prejudiced by his attorney’s performance at sentencing. Defendant also raises two issues related to his attorney’s conduct at sentencing: first, that

his attorney allegedly failed to argue that the sentencing range was unreasonable, and second, that

his lawyer failed to articulate that the defendant’s sentence would create an unwarranted disparity

as to his co-defendant. But counsel did in fact argue in a written sentencing memorandum for a

sentence of no more than the mandatory minimum sixty months’ incarceration, see Def.’s Mem.

in Aid of Sentencing [Dkt. # 44] (“Mr. Lamont [Roberts] respectfully seeks a sentence of sixty

(60) months, should This Honorable Court allow the factors outlined in

(a)(2) to

reduce his sentence,” because “[h]e is indeed a valuable member of this community”), and the

10 Court ended up varying from the Guidelines in a manner that benefitted the defendant

notwithstanding its concerns about his history and characteristics. 2

Finally, any argument about avoiding unwarranted sentencing disparities between the two

co-defendants would have been inappropriate because the two men were not similarly situated. It

is true that under

(a), the Court must consider “the need to avoid unwarranted

sentence disparities among defendants with similar records who have been found guilty of similar

conduct.”

(a)(6); see also Gall v. United States,

(2007). But the

Supreme Court has explained that the sentencing guidelines themselves provide protection to

defendants from unwarranted disparities. “[A]voidance of unwarranted disparities was clearly

considered by the Sentencing Commission when setting the Guidelines ranges.” Gall,

. In any event, the Court in this case was not faced with defendants “with similar records,” and

the two defendants were not “found guilty of similar conduct,” so there was no unwarranted

disparity in this case.

2 As the Court stated at sentencing:

[O]ne thing that I cannot overlook when I look at your history and characteristics and one thing that leaps out from the presentence report in a way that I have never seen in any presentence report I’ve ever read when I was a prosecutor, a defense attorney, or now as a judge, is the pattern of violence towards women that . . . appears in the presentence report. It is not why you are before me, but I can’t ignore it. I understand that any single incident can be misunderstood, that . . . this conviction or that conviction could be based on something that really isn’t true or somebody filed a CPO and she really didn’t have a good basis to. But we have multiple protective orders filed by five women. This is not an aberration, this is not a misunderstanding. This is what you call a pattern.

Roberts Sentencing Hr’g at 13:2–13:18.

11 Defendant Johnson entered a plea to an information charging one count of distribution of

cocaine base in violation of

(a)(1) and (b)(1)(C), which did not involve a

mandatory minimum penalty. Superseding Information. Johnson admitted to just one transaction

involving 76 grams of the controlled substance, which started his Guidelines calculation at a

significantly lower Base Offense Level of 24. Plea Agreement [Dkt. # 16] at 2. And defendant

Johnson had no criminal convictions that would count for Guidelines purposes. See

. Thus,

Johnson fell within Criminal History Category I, which resulted in an advisory sentencing

Guideline range of 30 to 37 months. Also, there were extraordinary personal circumstances in

Johnson’s case that warranted a departure under U.S.S.G. § 5H1.6. Given the significant

differences in the charged conduct, the statutory sentences faced, and the Guidelines calculations,

there was nothing counsel could have said that would have resulted in a sentence for Roberts that

mirrored his co-defendant’s.

CONCLUSION

Because defendant’s plea agreement bars him from collaterally attacking his sentence, and

because defendant has not met his burden to show that his counsel’s performance caused any

prejudice, the Court will deny defendant’s motion to vacate his sentence.

A separate order will issue.

AMY BERMAN JACKSON United States District Judge

DATE: August 2, 2017

12