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Margaret "MEG" Knowles v. United States

United States District Court, W.D. Wisconsin

March 12, 2018


          OPINION & ORDER

          JAMES D. PETERSON District Judge

         Petitioner Margaret Knowles pleaded guilty to one count of attempting to obtain controlled substances by fraud or deception, in violation of 21 U.S.C. §§ 843 and 846. In her written plea agreement, Knowles waived her right to appeal her conviction and any sentence of incarceration of 16 months or less. She received a guideline sentence of 16 months incarceration, to be followed by a year of supervised release. Knowles did not file a direct appeal of her conviction or sentence, which is not surprising in light of her plea waiver.

         But now Knowles has filed a petition under 28 U.S.C. § 2255, in which she asks the court to vacate her sentence, allow her to withdraw her guilty plea, and vacate her conviction. Dkt. 7. She asks for expedited review because she is more than eight months in on her 16-month sentence. Dkt. 11. I will grant the request for expedited review, but I will deny the petition because none of her proffered grounds for relief have even arguable merit.

         One fundamental problem is that Knowles's main argument is that the court erred in applying several guideline enhancements, as if she were making a direct appeal of the reasonableness of her sentence. But all issues concerning the court's calculation of the guideline range and the reasonableness of her sentence were expressly waived in her plea agreement, so long as she got a sentence of 16 months or less. Dkt. 14, ¶ 3. (Docket citations are to the criminal case, U.S. v. Knowles, No. 16-cr-84 (W.D. Wis.), unless otherwise noted.) She cannot avoid the consequences of that agreement simply by repackaging her appeal as a § 2255 petition. “[T]he general rule [is] that claims not raised on direct appeal may not be raised on collateral review unless the petitioner shows cause and prejudice.” Massaro v. United States, 538 U.S. 500, 504 (2003). Accordingly, Knowles cannot prevail on any ground that she could have raised on direct appeal.

         The general rule does not apply to claims for ineffective assistance of counsel, which can be raised under § 2255 regardless whether the petitioner filed an appeal. Id. at 509. Knowles is trying to fit her appeal into this exception-she ends most of her arguments with a statement that her counsel was ineffective for failing to object to the various errors she is asserting. But she does not make her arguments under the appropriate standard, which requires her to show both that counsel's performance was deficient under an “an objective standard of reasonableness” and that she was prejudiced, meaning that there is “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984). Knowles's failure to apply the Strickland standard would be reason enough to deny the petition.

         But there are additional fundamental problems with each of her grounds for relief.

         A. Enhancement under USSG § 3C1.1 for obstruction of justice

         Knowles contends that the court erred in applying the enhancement under USSG § 3C1.1 for obstruction of justice, and that counsel was ineffective for failing to object to it. But trial counsel did object. Dkt. 20, at 1-3. Knowles's argument that trial counsel was ineffective because he did not advise the court of the proper evidentiary standards applicable is frivolous, because trial counsel made essentially the same argument that Knowles makes now.[1]

         And that argument, especially as Knowles presents it now, is substantively wrong. Knowles contends that the obstruction enhancement applies only if the defendant's conduct results in “significant and actual obstruction or impediment” to the investigation or prosecution of the crime. Dkt. 7, at 6-8. And, according to Knowles, the court found that Knowles's conduct did not actually obstruct. But this misconstrues the record. At sentencing, the court acknowledged that Knowles's efforts to thwart the investigation were not effective- after all, she was indicted and pleaded guilty. Dkt. 36, at 7. But the court found that she attempted to interfere with the investigation by posing as a DEA agent and by encouraging a witness, JG, to lie to law enforcement officers. Id. The obstructive conduct itself is described in detail in the PSI, Dkt. 21, ¶¶ 31-36, 50, 58 (and others), and Knowles does not object to the factual accuracy of the PSI's description of the conduct.

         The guideline enhancement, by its terms, applies to “attempted” obstruction, which suggests that it is applicable in cases like this in which the defendant does not successfully thwart the investigation or prosecution. True, the enhancement does not apply to minor conduct designed to avoid liability, such as fleeing from arrest or unsworn lying to law enforcement officers. See Application Note 5. This is the type of conduct at issue in the cases cited by Knowles, United States v. Hanhardt, 361 F.3d 382 (7th Cir. 2004), cert. granted, judgment vacated sub nom. Altobello v. United States, 543 U.S. 1097 (2005); United States v. Griffin, 310 F.3d 1017 (7th Cir. 2002); United States v. Wells, 154 F.3d 412 (7th Cir. 1998). But Knowles's conduct went well beyond dishonest denials of criminal activity. Knowles's attempt to get JG to lie is an example of covered conduct specifically set out in Application Note 4(B). And she impersonated a DEA agent several times in calls to pharmacists, and making statements to the pharmacists to encourage them not to make further contact with actual DEA agents. Dkt. 27, ¶ 36.

         In the plea agreement, the government and Knowles agreed to recommend against the obstruction enhancement, so the government could not argue in support of this enhancement of sentencing. But the court was not bound to accept that recommendation. Knowles actively attempted to impede the investigation of her crimes in multiple ways, and the application of the enhancement was proper. And even if not, her trial counsel was not ineffective for failing to persuade the court on the point.

         B. Enhancement under USSG § 3B1.1 for organizer/leader role

         Knowles also contends that the court erred in applying the enhancement under USSG § 3B1.1 for her organizer/leader role in the offense. Knowles acknowledges that trial counsel objected to the court's application of this enhancement through written objections, Dkt. 7, at 10, and yet she contends that trial counsel was ineffective for failing to object to the enhancement and by failing to apprise the court of the proper standards, id. at 16-17. Knowles cites no authority for the notion that counsel's performance is objectively unreasonable if he fails to reiterate an objection that is already in the record. Knowles has failed to develop an argument that trial counsel was ineffective on this issue, and she waived her right to take a direct appeal of the court's application of the enhancement.

         In any case, Knowles argument again misconstrues the record. Although court found that Knowles was not the leader of a typical unified conspiracy in which all the participants conspired with each other, the court found that Knowles was the hub of a criminal activity with the other participants. Dkt. 36, at 6. The PSI adequately established that there were ...

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