Free Order on Motion to Vacate (2255) - District Court of Colorado - Colorado

Case 1:01-cr-00173-EWN

Document 181

Filed 12/06/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge Edward W. Nottingham Civil Action No. 03­ 1013­ cv­ EWN (Criminal Case No. 01­ 173­ cr­ EWN)

UNITED STATES OF AMERICA , Plaintiff/Respondent, v. DON CARNEY, Defendant/Movant.

ORDER DENYING SECTION 2255 MOTION

Defendant, having entered pleas of guilty to one count charging misapplication of the funds of a federally-insured bank and another count charging that he made false entries in the records of the bank, was sentenced to a custodial term of eighteen months, followed by five years of supervised release. His appeal to the Tenth Circuit was dismissed without prejudice on the ground that the issues presented, all of them pertaining to alleged ineffective assistance of counsel, were more properly raised by way of a motion to modify his sentence under 28 U.S.C. § 2255 (2005). Meanwhile, Defendant commenced and completed service of his custodial term. He was released from custody on February 19, 2004, and is now serving his term of supervised release. While in custody, he filed the section 2255 motion which is now before the court. In the court' view, Defendant' release from custody renders his section 2255 motion s s moot. The claims he presents all relate to his trial counsel' alleged deficient performance in s failing to argue for adjustments under the federal sentencing guidelines and/or failing to argue for

Case 1:01-cr-00173-EWN

Document 181

Filed 12/06/2005

Page 2 of 3

a departure from the guidelines. None of his arguments would invalidate his guilty pleas or convictions, nor would they change the court' view -- expressed long ago in the memorandum s of sentencing hearing -- that the terms and conditions of his supervised release are appropriate. They would affect only the custodial range recommended by the guidelines. Thus, even if the court were to agree with him completely and conclude that some adjustment were appropriate, the only relief it could afford him would be to reduce the prison time that he has already served. His motion is moot. Even if the motion were not moot, the arguments Defendant raises are without merit. " Ineffective assistance under Strickland [v. Washington, 466 U.S. 668 (1988)] is deficient performance by counsel resulting in prejudice . . . ." Rompilla v. Beard, 125 S. Ct. 2456, 2464 (2005) (citations and internal quotation marks omitted). In order to prevail on a claim of ineffective assistance, [Defendant] must show that his attorney " made errors so serious that counsel was not functioning as the ` counsel'guaranteed the defendant by the Sixth Amendment," Strickland, 466 U.S. at 687, and that (2) counsel' performance prejudiced him in that " s there is a reasonable probability that, but for counsel' unprofessional errors, the result of the proceeding s would have been different,"id. at 694. " it is easier to dispose of an ineffectiveness claim on the If ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed." Id. at 697. Here, the court can say with confidence that counsel' mistakes, if any, did not prejudice s Defendant. The court notes that it addressed and rejected most of Defendant' arguments for a s departure when it rejected his motion for bond on appeal. It reiterates that rejection and now rejects the balance of the arguments. The court sees no reason to depart from the sentence -2-

Case 1:01-cr-00173-EWN

Document 181

Filed 12/06/2005

Page 3 of 3

recommended by the advisory guidelines. The court, having reviewed the pre-sentence report, is also unpersuaded by Defendant' arguments (1) that the bank profited from some of his loans and s (2) that the loss calculations were too high. The pre-sentence report recommends a loss calculation which would have resulted in an adjustment one point higher than the adjustment made by the court. The court found the evidence to be in equipoise and accepted the parties' stipulation. There is absolutely no basis for using a lower figure. Further, even if Defendant' s argument were accepted, the loss adjustment and guideline range would be the same. Upon the foregoing finds and conclusions, it is ORDERED that Defendant' motion to modify his sentence is DENIED and that his s criminal and civil cases be closed.

Dated this 6th day of December, 2005.

BY THE COURT:

s/ Edward W. Nottingham EDWARD W. NOTTINGHAM United States District Judge

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