United States District Court, D. Hawaii
ORDER (1) DENYING MOTION UNDER 28 U.S.C. § 2255
TO VACATE, SET ASIDE, OR CORRECT SENTENCE; AND (2) DENYING
CERTIFICATE OF APPEALABILITY
Derrick K. Watson, Judge
March 12, 2015, Petitioner Michael Steven Wright pled guilty,
without a plea agreement, to possession with intent to
distribute a mixture or substance containing a detectable
amount of methamphetamine, in violation of Title 21 of the
United States Code Sections 841(a)(1) and (b)(1)(C).
Thereafter, Wright was sentenced to 24 months imprisonment
for that offense with the Court finding, among other things,
that Wright was responsible for 1333 grams of
methamphetamine. On appeal, Wright challenged his sentence,
and the Ninth Circuit Court of Appeals affirmed, finding that
Wright was merely held responsible for his own conduct.
Relying on Section 2255 of Title 28 of the United States Code
(“Section 2255”), Wright again challenges his
sentence, this time alleging ineffective assistance of
counsel. To the extent the sentencing argument Wright raises
in this proceeding was not raised and decided during his
direct appeal, the Court rejects Wright's request for
collateral relief because his sentencing counsel was not
Arrest, Information, And Guilty Plea
uncontroverted Presentence Investigation Report provided the
following explanation of Wright's offense conduct and
6. The investigation in this case was conducted by the Drug
Enforcement Administration (DEA), with assistance from the
Honolulu Police Department (HPD). The investigation was
initiated on 11/05/2014, after U.S. Postal Inspectors
contacted investigators regarding a suspicious parcel. The
parcel weighed approximately 5 pounds, 7 ounces, and was
addressed to “Mike Knight, 1301 Liliha Street,
Apartment 210, Honolulu, Hawaii;” with a return address
of “Airborne Models Hobby, 4749 Bennett Drive #K,
7. A narcotic detecting canine alerted to the odor of
narcotics on the parcel and investigators obtained a search
warrant. Pursuant to the search warrant, investigators opened
the parcel and recovered methamphetamine. Subsequent
laboratory analysis established that the parcel contained a
total of 1, 333.84 net grams of d-Methamphetamine
Hydrochloride, with purity levels ranging from 98.8% to 100%.
8. Investigators repackaged the parcel with
pseudo-methamphetamine and 0.84 gram of the recovered
methamphetamine, along with an electronic monitoring device.
On 11/06/2014, investigators initiated a controlled delivery
of the parcel utilizing an undercover investigator (UC) to
the Liliha Street address. The UC placed the parcel in a
mailbox designated for apartment 210. Shortly thereafter,
investigators observed the defendant, Michael Steven Wright,
remove the parcel from the mailbox, place it on the footboard
of his moped, and proceed to the apartment building.
Investigators also observed Wright speak to another male,
later identified by Wright as his brother, Glen Patterson.
Investigators followed Wright as he left the apartment
building, traveled through various city streets, frequently
looked around, and used his cellular telephone. Investigators
eventually stopped Wright and placed him under arrest. From
Wright's person, investigators recovered the parcel and a
9. Immediately after his arrest, Wright waived his
constitutional rights and agreed to speak with investigators.
When asked what was in the parcel, Wright advised
investigators that he was “under the impression it was
marijuana.” When asked how many parcels he previously
received, Wright stated, “I have only received a
handful of parcels, about 4 or 5 over the past 2 months, and
I do it for rent.” When asked if the parcels were sent
to his residence, and if he knew what was inside of each
parcel, Wright stated that the parcels were sent to his
residence, and that he believed the parcels contained
marijuana. Wright added, “I smoke marijuana, but do not
smoke meth or crack.” When asked if the prior parcels
were sent to him from the same person, Wright replied that
the last 2 were sent from the same person, known to him as
“Dave Bay, ” who was later identified as David
Toma. Wright indicated that he and Toma had conversations
which led to Wright's receipt and payment for parcels.
Wright stated that one parcel arrived on 11/01/2014 and
another on 11/06/2014. Wright gave consent to search his
iPhone and provided the telephone number listed for Toma.
10. Wright admitted that he received a telephone call from
Toma, who told him that he would receive a box containing
marijuana through the mail on 11/01/2014, and that Wright
should call Toma when it arrived. Wright said that he
specifically told Toma not to send any “crazy
shit.” Wright stated that when the parcel arrived, he
drove to the Hilton Hawaiian Village Hotel in Waikiki with
the parcel on his moped, as instructed by Toma. Wright said
that he did not know what type of drugs were inside of [the]
parcel, but assumed that it was marijuana, and delivered it
to Toma at an unknown hotel room. Toma took the parcel into
the bedroom, and returned to give Wright some marijuana in
exchange for receiving and delivering the parcel. Wright
stated that he was not paid any cash for the delivery.
11. Wright further stated that Toma told him that another
shipment of marijuana would arrive to his residence on
11/05/2014, and that he would be paid $1, 000.00 in cash for
receiving and delivering the parcel. When the parcel did not
arrive on that date, Wright went to the Kapalama post office
and was informed that the parcel would be delivered on
11/06/2014. Upon retrieving the parcel from the locker at the
Waena Apartments, Wright met with Toma, who instructed him to
take the parcel to Waikiki and call the hotel where Toma was
staying. Wright advised that he was stopped and arrested on
his way to Waikiki with the parcel.
13. On 11/06/2014, in a written statement, Wright indicated
that he received a handful of parcels through the U.S. Postal
Service over the past few months, primarily sent to his
Liliha Street address; all of which he believed contained
marijuana. Wright reiterated in writing that he smoked
marijuana, but did not smoke methamphetamine or crack
cocaine. In approximately mid-September 2014, Wright met Toma
at a club, and the two became acquaintances. Wright further
noted that approximately 2 weeks prior to his statement, he
and Toma arranged for parcels to be sent to Wright's
Liliha Street address. Wright received one parcel from Toma
on 11/01/2014, but did not know what type of drug was in the
parcel. Wright met [sic] later delivered the parcel
to Toma at the Hilton Hawaiian Village. Wright was told by
Toma that another parcel, containing marijuana, would arrive
on 11/05/2014, and Wright went to the post office to inquire
about it. Toma then informed Wright that the parcel would
arrive on 11/06/2014. Upon retrieving the parcel, Toma was at
the mailbox, riding a rented red moped. Toma told Wright to
bring the box to his hotel, but did not specify which hotel.
Wright was expecting to earn $1, 000.00 for receiving and
delivering the box to Toma. Wright advised that he did not
know what was in the box, but thought that it was marijuana.
Wright further noted that he was arrested while in transit to
13a. On 11/20/2014, in a proffered statement, Wright advised
that he met Toma through his friend, L.B., who resides in
Honolulu. Wright further advised that he previously received
parcels of marijuana for L.B., for which he received 2 ounces
of marijuana as payment. Upon delivering the parcels to L.B.,
L.B. generally opened the packages in front of Wright.
Accordingly, when Wright agreed to pick up parcels for Toma,
he assumed that they only contained marijuana. A couple
months prior to his arrest, Wright received his first parcel
from Toma, which he delivered to Toma at the Hawaiian Hilton
Village. Wright indicated that the parcel contained user
amounts of cocaine. Wright did not indicate how he knew that
cocaine was in the parcel. Wright was paid 2 ounces of
marijuana for the delivery. Thereafter, Wright received a
parcel for L.B. on 11/01/2014, and delivered it to L.B. at
his apartment. On another occasion, Wright retrieved cocaine
in the area of University Avenue, and brought it to Toma and
13b. Wright told investigators that the circumstances for the
second parcel from Toma were different than in the first. For
example, Toma promised to pay Wright $1, 000.00 for his
services, and told Wright not to tell L.B. about the parcel.
Further, upon Wright's receipt of the package, Toma
arrived on his moped, but did not want to take the parcel,
and directed Wright to bring the package to an unspecified
hotel in Waikiki. Additionally, Wright agreed to call Toma
when he arrived in Waikiki. After his arrest, neither Wright
nor L.B. could reach Toma.
Presentence Investigation Report, Dkt. No. 35.
his arrest and the initiation of a criminal proceeding
against Wright, the Office of the Federal Public Defender
(“FPD”) was appointed to represent Wright.
Although the Government moved for Wright to be detained
without bail, Wright was released subject to various
conditions. Three days after Wright's initial appearance
in this case, Assistant Federal Public Defender Alexander
Silvert appeared as counsel for Wright.
on March 12, 2015, at a hearing before this Court, Wright
waived indictment and pled guilty, without a plea agreement,
to the only charge in the Government's
Information-knowingly and intentionally possessing with
intent to distribute some quantity of a mixture or substance
containing a detectable amount of methamphetamine, its salts,
isomers, and salts of its isomers. 3/12/15 Transcript of
Hearing at 20:23-27:18, Dkt. No. 26. Among other things, at
the plea hearing, the Government acknowledged that Wright
thought the package with which he was arrested contained
marijuana rather than methamphetamine. Despite his plea, the
Court permitted Wright to remain out on bail, subject to the
previously imposed conditions.
to sentencing, the U.S. Probation Office prepared a PSR.
Therein, the Probation Officer recommended that, in
calculating Wright's base offense level, he be held
responsible for 1.3 kilograms (or 1, 333 grams) of
methamphetamine. Wright objected to this recommendation on
the ground that he thought the package with which he was
arrested contained marijuana.
sentencing, the Court overruled Wright's objection based
upon its review of precedent from the Ninth Circuit and held
him responsible for 1.3 kilograms (or 1, 333 grams) of
methamphetamine in calculating his base offense level. After
various reductions to the base offense level that the Court
found to be applicable, Wright's total offense level was
calculated as 22, which, with a criminal history category of
I, resulted in a guideline sentencing range of 41 to 51
Court then heard argument from counsel as to an appropriate
sentence for Wright. Mr. Silvert, still representing Wright,
asserted that, although the Court had held Wright responsible
for methamphetamine, Wright should be sentenced within the
guideline range that would have been produced had he been
held responsible for marijuana. In other words, zero to six
months imprisonment, with Wright requesting a sentence of
probation. Mr. Silvert argued such a sentence was appropriate
for many reasons, including the undisputed fact that Wright
thought the package with which he was arrested contained
taking into consideration the arguments of counsel,
Wright's allocution, and each of the 18 U.S.C. Section
3553(a) sentencing factors, the Court varied below the
guideline range, sentencing Wright to 24 months imprisonment.
In addition, the Court permitted Wright to self-surrender by
March 17, 2016.
thereafter, Wright filed a notice of appeal and a motion for
bail and to stay mittimus pending his appeal. Prior to his
self-surrender date, the Court granted Wright's motion.
The Court found that unusual circumstances existed making it
inappropriate for Wright to be detained during his appeal.
Those unusual circumstances included the Government
acknowledging that Wright believed the package with which he
was arrested contained marijuana. Wright, therefore, remained
on release during his appeal.
appeal, in his opening arguments before the Ninth Circuit,
Wright argued that this Court plainly erred in holding him
responsible for methamphetamine because, pursuant to Section
1B1.3(a)(1)(B) of the Sentencing Guidelines (“Section
1B1.3(a)(1)(B)”), he should not have been held
responsible for the conduct of others-the packing of the
package with methamphetamine-when he only agreed that the
package would contain marijuana. Wright acknowledged that he
did not make this argument at sentencing, hence his reason
for arguing plain error. Wright also stated that drug
quantity was not at issue in his appeal. Throughout
his appeal, Wright remained represented by Mr. Silvert.
29, 2017, the Ninth Circuit affirmed Wright's sentence.
The Ninth Circuit concluded that this Court did not plainly
err in holding Wright responsible for methamphetamine
because, in doing so, Wright was “merely held
responsible for his own conduct” in personally
possessing the package containing methamphetamine. 6/29/17
Memorandum of the Ninth Circuit Court of Appeals at 2, Dkt.
No. 54. The Ninth Circuit further concluded that this Court
correctly used methamphetamine to calculate Wright's
sentencing guideline range, even though Wright believed the
package contained marijuana, because “a defendant's
knowledge of drug type and quantity is not a fact
that must be admitted or proved beyond a reasonable
doubt.” Id. (emphasis in original).
then petitioned the Ninth Circuit for panel and en banc
rehearing. In his opening arguments for rehearing, Wright
argued that, in affirming his sentence, the Ninth Circuit had
overlooked that the package he personally possessed did not
contain 1.3 kilograms of methamphetamine-it only contained
0.84 grams after interdiction and replacement by law
enforcement. Wright argued that, as a result, the only way to
hold him responsible for the remaining 1299.16 grams of
methamphetamine would be to apply ...