UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Anthony Barth

v. Civil No. 18-cv-1010-JD Opinion No.

United States of America

O R D E R

Anthony Barth, proceeding pro se, seeks a writ of habeas

corpus pursuant to

. In support, he brings four

claims that his counsel provided constitutionally ineffective

assistance. The government has filed its response. Barth has

filed a reply. An evidentiary hearing is not required, and the

petition is resolved as follows. Rule 8(a), Rules Governing

Section 2255 Proceedings.

Standard of Review

A petitioner is entitled to habeas relief if he shows that

his sentence was imposed “in violation of the Constitution or

laws of the United States . . . or is otherwise subject to

collateral attack.” § 2255(a). The Sixth Amendment guarantees

criminal defendants the right to effective assistance of

counsel. Strickland v. Washington,

(1984).

“[A] defendant who claims ineffective assistance of counsel must prove (1) that counsel’s representation fell below an objective

standard of reasonableness, and (2) that any such deficiency was

prejudicial to the defense.” Garza v. Idaho,

(2019) (internal citations and quotation marks omitted).

Background1

In 2016, the New Hampshire State Police and the Manchester

Police were investigating the sale of heroin and fentanyl in

southern New Hampshire. They identified Anthony Barth as a

distributor of fentanyl. During a meeting with a confidential

informant (“CI”) on June 22, 2016, the investigators learned

that the CI was familiar with Barth and willing to purchase

drugs from him.

Police officers and the CI arranged drug transactions with

Barth, which were conducted under surveillance. On July 28, the

CI purchased ten “fingers” of fentanyl from Barth for $3,000.2

The CI bought 15 fingers of fentanyl from Barth for $4,500 on

1 The information about the crimes, search, and laboratory testing is taken from the presentence investigation report, which was accepted with certain changes during the sentencing hearing.

2 The term “fingers” used in this context is understood to mean either balloons or the fingers cut from rubber gloves. See Baez-Gil v. United States,

, at *2 (D.N.H. June 4, 2013)

2 August 3. On August 17, Barth agreed to sell the CI 50 fingers

of heroin or fentanyl in Derry, New Hampshire.

The police officers planned to arrest Barth on August 17.

They saw his car parked behind a restaurant and identified

Barth. Two marked police cars drove toward Barth’s car and

stopped with one car in front of Barth and the other behind him.

One officer got out of the car, drew his gun, and ordered Barth

to stop.

Barth put his car into reverse and hit the police car

behind him. He then shifted into drive and drove toward the

officer in front of him. He did not hit the officer. He drove

over the median, which consisted of a small lawn, and onto an

access road to Walmart. A witness saw him leave his car, run to

a dumpster, and then run into the woods. With the witness’s

information, officers found 25 fingers in the dumpster and 24

fingers near the edge of the woods.

The same day officers obtained a warrant and searched

Barth’s home. Barth’s father, Russell Barth, and his

girlfriend, Alyssa Robichaud, also lived in the house, and the

officers spoke to them. During the search, officers found

marijuana, heroin, fentanyl, and an anabolic steroid. Inside a

safe, they found $47,000 and a large amount of gold, jewelry,

and coins. The appraised value of the gold, coins, and jewelry

is $146,420.

3 The drugs purchased by the CI from Barth were tested at the

New Hampshire Department of Safety Forensic Laboratory on

September 15, 2016. The tests showed that Barth sold 100.1

grams of fentanyl on July 28 and 148.7 grams of fentanyl on

August 3. The 49 fingers found on August 17 after Barth ran

into the woods contained 492.94 grams of fentanyl. 672 grams of

marijuana and 65.58 grams of fentanyl were seized during the

search of Barth’s home.

In a complaint filed on September 6, 2016, Barth was

charged with possession with intent to distribute controlled

substances in violation of

(a)(1), and he was

arrested the same day. An indictment was filed on September

21, 2016, charging Barth with two counts of distribution of a

controlled substance, fentanyl, in violation of § 841(a)(1), and

one count of possession with intent to distribute a controlled

substance, fentanyl, also in violation of § 841(a)(1). Barth

signed an acknowledgement and waiver of rights on May 31, 2017,

in which he pleaded guilty to all three counts without a plea

agreement. He also acknowledged that the minimum penalty for

those offenses was ten years and the maximum penalty was life in

prison.

On June 5, 2017, Barth appeared and entered his guilty

plea. During his plea hearing, Barth stated that he understood

the maximum penalty for the charges against him was life in

4 prison and the mandatory minimum penalty was ten years in

prison. Barth admitted that that he had possessed with intent

to distribute more than 400 grams of fentanyl, as charged in

Count 3. The defense did dispute the other quantities of drugs

attributed to Barth and the cash, gold, and jewelry found in the

home that was attributed to Barth.

Barth objected to the length of the sentence as it was

calculated in the presentence investigation report and supported

by the government in its memorandum. Before sentencing,

however, the defense and the government agreed that the quantity

of drugs involved in Barth’s offenses equaled 10,000 to 30,000

kilograms of marijuana, resulting in a base offense level of 34.

They also agreed to a 2 point enhancement for reckless

endangerment based on his operation of his car to escape capture

and leaving fentanyl in the area, raising the base offense level

to 36, which was then reduced to 33 based on acceptance of

responsibility.

Barth’s counsel asked the court to consider the

circumstances of the controlled buys from Barth, which he argued

showed an attempt to manipulate the sentence, as a factor to

support a variance from the guidelines. The government disputed

that any manipulation occurred. Barth was sentenced to 168

months on each count, to be served concurrently.

5 Discussion

Barth raises four ineffective assistance of counsel claims

in support of his habeas petition. He contends that his counsel

was ineffective because counsel failed to object to additional

offense levels based on converting the property seized from his

home to drug quantities and because counsel failed to object to

the enhancement for reckless endangerment. He also alleges that

his counsel was ineffective because he failed to object to the

government’s failure to provide impeachment and exculpatory

evidence, failed to argue for a sentence below the mandatory

minimum based on the government’s manipulation of the scope of

the crime, and failed to argue that he was entitled to an

offense level reduction based on his role in the crime.3 In its

response, the government contends, briefly, that none of Barth’s

claims have merit.

3 In his reply, Barth states in several places that he asked his counsel to file a notice of appeal to raise the same four issues. No appeal was filed. Barth appears to believe that an appeal was necessary to avoid procedural default, which is not an issue here. Further, ineffective assistance of counsel claims cannot be raised on direct appeal except in limited circumstances that do no apply here. United States v. Flete- Garcia, --- F.3d ---,

, at *17 (1st Cir. May 23, 2019). Therefore, the court construes Barth’s § 2255 petition to raise each of the four claims as ineffective assistance of counsel claims but not to raise a claim of ineffective assistance of counsel for failure to appeal those issues.

6 A. Claim 1 - Offense Level Increase

Barth argues that his offense level was improperly based on

drug quantities that were calculated by including the drug

equivalents of gold, jewelry, and cash seized from his home.

He also challenges the enhancement for reckless endangerment

when he drove toward an officer while trying to flee and by

leaving fentanyl in the area when he escaped. He contends that

his counsel was ineffective for failing to object to

consideration of those matters for purposes of his sentence.4

Barth argues that the drug quantities considered for

purposes of sentencing were core elements of the crime that had

to be charged and proven to a jury beyond a reasonable doubt.5

He also argues that his actions that caused an enhancement for

reckless endangerment had to be charged and proven to a jury

beyond a reasonable doubt. He contends that under Apprendi v.

New Jersey,

(2000), and Alleyne v. United States,

(2013), those matters could not be considered for

sentencing because they were not facts found by a jury. He

alleges that his counsel was ineffective for failing to raise

4 At sentencing, the defense agreed that his conduct constituted reckless endangerment under U.S.S.G. § 3C1.2.

5 Barth pleaded guilty to possession with the intent to distribute 400 grams of fentanyl and acknowledged that the penalties provided by

(b)(1)(vi) applied to all three of his offenses.

7 those issues. The government responds, stating that any such

argument would have been frivolous.

When the prison term imposed is not longer than the

statutory maximum, drug quantities found by a preponderance of

the evidence are constitutionally permissible. United States v.

Zapata,

(1st Cir. 2009) (construing Apprendi);

see also United States v. Berrios-Miranda,

(1st

Cir. 2019) (explaining evidentiary bases for sentencing). A

sentencing enhancement for reckless endangerment is properly

based on facts that are found by a preponderance of the

evidence.6 United States v. Banks,

(3d

Cir. 2014). In addition, “factual findings made for purposes

of applying the Guidelines, which influence the sentencing

judge’s discretion in imposing an advisory Guidelines sentence

and do not result in imposition of a mandatory minimum sentence,

do not violate the rule in Allene.” United States v. Ramirez-

Negron,

(1st Cir. 2014).

Therefore, the advisory Guideline sentence imposed on Barth

complied with the applicable legal standards. As a result, his

6 Barth does not dispute the facts that the enhancement was based on, and, in fact, he agreed that he fled from being arrested and left fingers of fentanyl in the area after abandoning his car. See United States v. Dennings,

, 237 & n.3 (4th Cir. 2019).

8 counsel’s failure to object on the grounds Barth raises did not

fall below an objective standard of reasonableness.

B. Claim 2 – Discovery

Barth charges that the government withheld impeachment and

exculpatory evidence that it should have produced within

fourteen days after his arraignment. He alleges that the

evidence concerned government witnesses that he identifies as

Dave Fagan, Evil, and Mike Veinot. The evidence that he cites

is that Fagan was involved in a “massive drug ring,” Evil would

have testimony and statements about “the year of 2015,” and

Veinot would have testimony and statements “concerning the years

of 2012-2016, FBI FD 302’s & 209’s with inserts, DEA 6’s & 7’s.”

Doc. no. 1, at 9. Barth contends that his counsel was

ineffective in failing to object to the government’s

nondisclosure of that information.

In response, the government points out that Barth has not

shown that any withheld discovery caused him prejudice. The

government also notes that the evidence he cites appears to be

impeachment evidence, and that Barth was not entitled to

impeachment evidence before he pleaded guilty.

For purposes of an ineffective assistance of counsel claim

in the context of a guilty plea, the petitioner must show both

that his counsel’s representation was not objectively reasonable

9 and that, but for the deficient representation, there is a

reasonable probability that he would not have pleaded guilty.

United States v. Luis Rivera-Cruz,

(1st Cir.

2017). “A reasonable probability is a probability sufficient to

undermine confidence in the outcome.” Strickland,

. “A court should not upset a plea solely because of post

hoc assertions from a defendant about how he would have pleaded

but for his attorney’s deficiencies. Judges should instead look

to contemporaneous evidence to substantiate a defendant’s

expressed preference.” Lee v. United States.

(2017).

1. Witness Discovery

Barth provides little information about the allegedly

withheld discovery. He does not show or explain how the cited

information is exculpatory, and instead, it seems that the

information was impeachment evidence. As the government points

out, the government had no obligation to disclose impeachment

evidence to Barth before he pleaded guilty.7 See United States

v. Ruiz,

(2002).

Barth cites local rules from the District of 7

Massachusetts, for 1990 and 1986. Those rules do not apply in this district.

10 Therefore, Barth has not shown that failure to object to

the alleged lack of discovery was objectively unreasonable.

2. Prejudice

Even if Barth had established the first step of this claim,

he has not shown prejudice. In his reply, Barth repetitively

states that the result of the proceedings would have been

different, but he provides no evidence or developed argument to

show that he would not have pleaded guilty if he had had the

discovery he cites about Fagan, Evil, and Veinot. He conclusory

statements of the standard does not provide the required

showing. Therefore, Barth has not met the prejudice prong of

the ineffective assistance of counsel test.

C. Claim 3 – Sentencing Manipulation

Barth argues that his counsel was constitutionally

ineffective because he did not argue that the government

improperly manipulated the drug sales in order to increase his

sentence. He contends that the small amounts of fentanyl sold

in the first two encounters would have kept his sentence within

a range of 0-60 months but the much larger attempted third sale

caused him to be subject to the greater sentence of ten years to

life. He argues that the government could have arrested him

before the third attempted sale but wanted to enlarge the scale

11 of his crime with the third sale for purposes of a longer

sentence.

“Sentencing factor manipulation occurs where government

agents have improperly enlarged the scope of scale of a crime.”

United States v. Rivera-Ruperto,

(1st Cir. 2017).

If a defendant proves that misconduct, the court may impose a

sentence below the statutory minimum or depart from the

sentencing guidelines range. Id.; United States v. Montoya,

(1st Cir. 1995). That relief is available, however,

only in extreme and unusual cases that involve “outrageous or

intolerable pressure by the government or illegitimate motive on

the part of the agents.” Rivera-Ruperto,

; see

also United States v. Navedo,

(1st Cir.

2015) (considering sentence manipulation claim in support of a

downward variance).

As the government points out, defense counsel argued for a

downward variance based on a sentence manipulation theory. The

court rejected that argument. Barth has not shown that an

argument for a sentence below the statutory minimum, based on a

sentence manipulation theory, would have been more successful.

Therefore, he has not shown that counsel’s argument was

objectively unreasonable or that there is a reasonable

probability of a different outcome.

12 D. Claim 4 – Mitigating Role

Barth contends that his counsel was ineffective for failing

to argue, under U.S.S.G. § 3B1.2, for a reduction in his offense

level based on his minimal or minor role in the crimes charged.8

Despite Barth’s attempt to portray himself as a “mule” in

someone else’s drug operation, that is contrary to the facts of

this case.9 Barth, like most drug dealers, had a source from

whom he bought the drugs that he then sold to the confidential

source. Having a source for his drug supply does not make Barth

a minimal or minor participant in his own drug dealing

operation.

Barth has not shown that he meets any of the factors for a

minimal or minor participant under § 3B1.2. Therefore, his

counsel did not provide ineffective assistance of counsel in

failing to argue for a decrease in offense level based on a

mitigating role.

8 Barth makes a long argument about the retroactive application of Amendment 794, which added a five-factor test to the application note for U.S.S.G. § 3B1.2. His argument is irrelevant, however, because the amended guidelines were used for sentencing.

9 A drug mule is simply a courier in a much broader drug conspiracy or operation and does not participate in the drug sales or negotiations, which are conducted by others. United States v. Quinones-Medina,

(1st Cir. 2009). Barth admittedly made the drug sales to the undercover source and identifies no one else who ran the drug operation.

13 Conclusion

For the foregoing reasons, Barth’s petition for relief

under § 2255 is denied.

The clerk of court shall enter judgment accordingly and

close the case.

Because Barth did not make a substantial showing of the

denial of a constitutional right, the court declines to issue a

certificate of appealability.

(c).

SO ORDERED.

______________________________ Joseph A. DiClerico, Jr. United States District Judge

May 30, 2019

cc: Anthony Barth, pro se Seth R. Aframe, Esq.

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