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United States v. Simon

United States District Court, D. Rhode Island

December 2, 2014

UNITED STATES,
v.
WAYNE SIMON

MEMORANDUM AND ORDER

MARY M. LISI, District Judge.

Petitioner Wayne Simon ("Simon"), proceeding pro se, has filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255, alleging that his Sixth Amendment Rights were violated when his sentence was enhanced by six levels pursuant to U.S.S.G. § 3A1.2(c)(1) for assaulting a police officer "in a manner creating a substantial risk of serious bodily injury." For the reasons stated below, Simon's motion is denied.

I. Background and Travel

On January 19, 2011, Simon was indicted by a grand jury for (Count I) being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) and 924(a)(2); (Count II) possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C); (Count III) possession with intent to distribute oxycodone in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C); and (Count IV) possession with intent to distribute marijuana in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(D). Indictment (Dkt. No. 1).

On May 9, 2011, Simon, who had at least three prior felony convictions on his record, pleaded guilty to all four counts of the indictment. No plea agreement was entered in this case. According to the evidence presented by the government (and admitted by Simon) at the change of plea hearing, Simon was arrested following a search of his residence in which detectives discovered 327 grams of cocaine, 2, 244 grams of marijuana, 353 oxycodone pills, and a quantity of ecstasy and other pills. In addition to the drugs and various drug paraphernalia, detectives also found three types of ammunition and $29, 100 in cash.

Prior to Simon's arrest on November 15, 2010, officers of the North Smithfield Police Department had secured Simon's residence to await the arrival of detectives with a warrant. Simon arrived at his residence and attempted to get by the officers and gain entry to his house. When the officers tried to stop Simon, he violently resisted, injuring at least two of the officers before Simon was subdued. Change of Plea Transcript (Dkt. No. 30).

Simon's sentencing hearing took place on August 22, 2011. Before sentencing Simon to 188 months' imprisonment, the Court conducted an evidentiary hearing to address the applicability of U.S.S.G. § 3A1.2(c)(1) for Simon's resistance to the arrest, in the course of which an officer sustained a broken hand. Sentencing Hearing Transcript (Dkt. No. 29). The Court concluded that the six-level enhancement applied in this case. Based on his criminal history, Simon qualified as a Category VI career offender. Combined with a total offense level of 31, Simon's sentencing guideline range fell between 188 and 235 months of incarceration. Upon the government's recommendation, the Court sentenced Simon at the lowest end of the range.

Subsequently, Simon appealed from his sentence on the sole ground that the six-level sentencing enhancement was applied in error. However, Simon did not challenge this Court's finding that when Simon raised a fist toward the police officers during a violent struggle with officers trying to keep him from entering his residence, that act qualified as an "assault" under U.S.S.G. § 3A1.2(c)(1). Accordingly, the First Circuit Court of Appeals affirmed Simon's sentence. Judgment (Dkt. No. 32).

On April 1, 2013, the United States Supreme Court denied Simon's petition for writ of certiorari, rendering his conviction final.

II. Standard of Review

Pursuant to Section 2255, "[a] prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the 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, may move the court which imposed the sentence to vacate, set aside or correct the sentence." 28 U.S.C. § 2255(a).

Relief under Section 2255 is available only if the Court finds a lack of jurisdiction, constitutional error, or a fundamental error of law. See United States v. Addonizio, 442 U.S. 178, 184-84, 99 S.Ct. 2235, 60 L.Ed.2d 805 (1979) (holding that "an error of law does not provide a basis for a collateral attack unless the claimed error constituted a fundamental defect which inherently results in a complete miscarriage of justice.'")(quoting Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 471, 7 L.Ed.2d 417 (1962)). A fundamental error of law is a defect "which inherently results in a complete miscarriage of justice' or an omission inconsistent with the rudimentary demands of fair procedure.'" Knight v. United States, 37 F.3d 769, 772 (1st Cir.1994) (quoting Hill v. United States, 368 U.S. at 428, 82 S.Ct. at 471)).

III. Simon's § 2255 Motion

Simon's § 2255 motion is based primarily on the 2013 Supreme Court decision in Alleyne v. United States, ___ U.S. ___, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013). Specifically, Simon asserts that the six-level enhancement for assault was imposed in violation of his Sixth Amendment rights because the facts on which the enhancement application was based were found not by a jury, but by the Court under a preponderance of the evidence standard. As the reason why he did not raise this issue on direct appeal, Simon refers to "[i]neffective assistance of counsel, " without providing any further details and without addressing the issue in his supporting memorandum, (Dkt. No. 33, pages 15-19). In his reply to the government's response, Simon suggests that his court-appointed counsel ...


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