E.D.Ky.: No IAC from not challenging a search of some drugs where it wouldn’t even change def’s Sentencing Guideline range

Defendant’s post-conviction petition is denied. He argued that defense counsel was ineffective for not challenging the search of his duffle bag during the search of a house by consent when he was an overnight guest. The merits don’t even have to be decided. The amount of drugs in the duffle bag was small compared to the wealth of other drugs defendant was responsible for, and, even if a motion to suppress was successful, defendant’s guideline range wouldn’t change. Therefore, he wasn’t prejudiced by defense counsel’s failure to do so, even if the argument was valid. United States v. Patterson, 2015 U.S. Dist. LEXIS 178120 (E.D.Ky. Nov. 2, 2015):

Assuming, without finding, that counsel was deficient for concluding that Patterson lacked standing to challenge the search of the bag, the Court finds no prejudice. Under the second prong of the Strickland test, the defendant must establish prejudice by showing that, but for his counsel’s error, the result of the proceedings would have been different. Strickland, 466 U.S. at 694-95. Here, the specific claim in Patterson’s § 2255 motion is that his defense counsel incorrectly advised him not to file a suppression motion for the 1.68 grams of heroin found in Patterson’s duffel bag, and this advice caused Patterson to plead guilty. R. 114 at 3-5. Patterson further claims that “the heroin directly formed the basis for [his] only count of conviction.” Id.

However, a review of Patterson’s plea agreement reveals that Patterson accepted responsibility not only for the heroin at issue, but his relevant conduct also included the sale of thirty Oxycodone tablets to the confidential informant as well as the 849 Oxycodone tablets discovered in the Mills residence. R. 58 at 2-3. That “relevant conduct” being calculated into his sentence, Patterson’s base offense level was 26, which consists of total marijuana equivalency falling within the 100 to 400 kilogram of marijuana range. See U.S.S.G. § 2D1.1(c)(7). To be clear, successful suppression of Patterson’s heroin in this case would not have affected the guideline calculation or recommended sentence. In addition, Patterson was ultimately sentenced below the advisory guideline range to a sentence of 120 months. See R. 58 at 4; R. 120 at 2. Accordingly, even if we assume, without finding, that Patterson’s counsel was deficient, the lack of suppression of the heroin did not result in prejudice under the Strickland analysis.