United States District Court, D. Nevada
MIRANDA M. DU UNITED STATES DISTRICT JUDGE.
Keegan James Vaughn pled guilty to possession of stolen
firearms and was sentenced to 100 months in custody. (ECF No.
50.) Before the Court are the following motions: motion to
vacate under 28 U.S.C. § 2255 (“Motion”)
(ECF No. 61), motion for evidentiary hearing (ECF No. 62) and
motion for appointment of counsel (ECF No. 63). The Court has
reviewed the government's response to the Motion and the
government's supplement filed at the Court's
direction. (ECF No. 73, 77.) Defendant has not filed a reply
or a supplement.
September 17, 2014, Vaughn was indicted on one count of
possession of stolen firearms (count 1) and one count of
transportation of stolen firearms (count 2). (ECF No. 1.) On
March 3, 2015, Vaughn pled guilty to count one-possession of
stolen firearms. (ECF No. 30, 32.)
sentencing hearing, the parties asked the Court to apply the
calculation set forth in the plea agreement, which determined
the base offense level to be 14. (ECF No. 30 at 8; ECF No. 46
at 2.) The Court declined and instead applied a base offense
level of 20 based on a finding that Vaughn was convicted of a
predicate crime of violence- burglary of a residence in
violation of California Penal Code Ann. § 459-under
U.S.S.G. § 2K2.1(a)(4)(A), which in turn relies on
U.S.S.G. § 4B1.2's residual clause. The Court
sentenced Vaughn to 100 months in custody. (ECF No. 49.)
Court entered judgment on July 30, 2015. (ECF No. 50.) On
February 2, 2016, Vaughn filed his Motion, along with his
motion for evidentiary hearing and motion for appointment of
counsel. (ECF Nos. 61, 62, 63.)
Motion raises a single ground for ineffective assistance of
counsel, contending that his former counsel failed to ask
that the Court not apply a six level enhancement for a prior
“crime of violence.” (ECF No. 61 at 3.) His
Motion is premised on the contention that his 2009 burglary
conviction is not a crime of violence under Descamps v.
United States, 133 S.Ct. 2276 (2013) and therefore did
not qualify as a predicate crime of violence under U.S.S.G.
right to counsel is the right to the effective assistance of
counsel.” McMann v. Richardson, 397 U.S. 759,
771, n.14 (1970). The Supreme Court recently reiterated that
a defendant's Sixth Amendment right to counsel extends to
the plea-bargaining process. Lafler v. Cooper, 566
U.S. 156, 162 (2012) (“During plea negotiations
defendants are ‘entitled to the effective assistance of
competent counsel.'”) (quoting McMann, 897
U.S. at 771)). “[D]efense counsel has the duty to
communicate formal offers from the prosecution to accept a
plea on terms and conditions that may be favorable to the
accused.” Missouri v. Frye, 566 U.S. 133, 145
(2012). The Ninth Circuit has stated that a defendant is also
“entitled to the effective assistance of counsel in his
decision whether and when to plead guilty.” United
States v. Leonti, 326 F.3d 1111, 1117 (9th Cir. 2003).
“If it is ineffective assistance to fail to inform a
client of a plea bargain, it is equally ineffective to fail
to advise a client to enter a plea bargain when it is clearly
in the client's best interest.” Id.
(citation omitted). To prove ineffective assistance during
the plea phase of a prosecution, a defendant “must
demonstrate gross error on the part of counsel.”
Turner v. Calderon, 281 F.3d 851, 880 (9th Cir.
2002) (quoting McMann, 397 U.S. at 771).
two-part test articulated in Strickland v.
Washington, 466 U.S. 668 (1984), applies to challenges
based on ineffective assistance of counsel. See
Lafler, 566 U.S. at 162. First, a defendant must show
“that counsel's representation fell below an
objective standard of reasonableness.”
Strickland, 466 U.S. at 688. In the context of plea
negotiations, the question is “not whether
‘counsel's advice [was] right or wrong, but . . .
whether that advice was within the range of competence
demanded of attorneys in criminal cases.'”
Turner, 281 F.3d at 880 (quoting McMann,
397 U.S. at 771). Second, a defendant must show that
“any deficiencies in counsel's performance [are]
prejudicial” by showing “that there is a
reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different.” Strickland, 466 U.S. at
692, 694. Additionally, any review of the attorney's
performance must be “highly deferential” and must
adopt counsel's perspective at the time of the challenged
conduct in order to avoid the distorting effects of
hindsight. Id. at 689.
cannot demonstrate that counsel's performance resulted in
prejudice to satisfy Strickland's second prong.
Vaughn's argument-that his 2009 burglary conviction
should not have been considered a crime of violence under
U.S.S.G. § 2K2.1(a)(4)(A)- is not legally viable in
light of the Supreme Court's decision in Beckles v.
United States, 137 S.Ct. 886 (2017) issued on March 6,
2017. In Johnson v. United States, 135
S.Ct. 2551 (2015), the Supreme Court held that the ACCA's
residual clause is unconstitutionally vague. Vaughn's
Motion is premised on the argument that
Johnson's holding extends to the identically
worded clause in U.S.S.G. § 4B1.2, which defines
“crime of violence” under U.S.S.G. §
2K2.1(a)(4)(A). In Beckles, the Supreme Court held
that “the advisory Sentencing Guidelines are not
subject to a vagueness challenge under the Due Process Clause
and that § 4B1.2's residual clause is not void for
vagueness.” Beckles, 137 S.Ct. at 895. Thus,
Vaughn's argument is no longer legally viable under
as the government argues, the Court could have assigned a
base offense level of 20 under U.S.S.G. §
2K2.1(a)(4)(B), which is triggered when the offense involved
“semiautomatic firearm that is capable of accepting a
large capacity magazine[.]” See U.S.S.G.
§ 2K2.1(a)(4)(B). Application Note 2 defines this term
to mean that “(A) the firearm had attached to it a
magazine or similar device that could accept more than 15
rounds of ammunition; or (B) a magazine or similar device
that could accept more than 15 rounds of ammunition was in
close proximity.” See U.S.S.G. § 2K2.1,
Application Notes 2. At the time of Vaughn's arrest, law
enforcement found a Glock 19 handgun with a light and laser
attachment in the center console of the vehicle driven by
Vaughn. (See Presentence Investigation Report,
¶ 13.) This firearm falls within Application Note
2(B)'s definition. Thus, the result would have been the
same had Vaughn's counsel argued for a base offense level
of 14 on the ground that his 2009 burglary conviction did not
qualify as predicate crime of violence offense under U.S.S.G.
Vaughn cannot satisfy Strickland's prejudice
prong. The Court thus finds that Vaughn cannot establish
ineffective assistance of counsel to support the sole ground
asserted in his Motion. Because the issues are clear from the
records, an evidentiary hearing is unnecessary. The Court