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Wright v. United States

United States District Court, D. Hawaii

January 8, 2019

MICHAEL STEVEN WRIGHT, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          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

         On 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 ineffective.

         BACKGROUND

         I. Arrest, Information, And Guilty Plea

         The uncontroverted Presentence Investigation Report provided the following explanation of Wright's offense conduct and arrest:

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, Livermore, California.”
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 digital scale.
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 meet Toma.
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 L.B.
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.

         Following 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.

         Thereafter, 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.

         II. Sentencing

         Prior 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.

         At 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 months.

         The 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 marijuana.

         After 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.

         III. Appeal

         Shortly 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.

         On 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.

         On June 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).

         Wright 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 ...


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