Steven W. St. John v. United States

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No. 95-2306
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Steven W. St. John, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
United States of America, *
* [UNPUBLISHED]
Appellee. *
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Submitted: December 21, 1995
Filed: January 3, 1996
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Before BOWMAN, BEAM, and MURPHY, Circuit Judges.
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PER CURIAM.
Steven W. St. John appeals from the district court's1 order
denying his 28 U.S.C. § 2255 motion to vacate his sentence. We
affirm.
St. John pleaded guilty pursuant to a plea agreement to
narcotics offenses, in violation of 21 U.S.C. §§ 841 and 846. The
plea agreement provided, inter alia, that the base offense level of
30 would be increased three levels under U.S.S.G. § 3B1.1(b),
because St. John "occupied a position of manager or supervisor of
a criminal activity that involved five or more participants or was
otherwise extensive"; and that St. John was entitled to a two-level
reduction under section 3E1.1, for acceptance of responsibility.
1
The Honorable Howard F. Sachs, United States District Judge
for the Western District of Missouri.
The presentence report (PSR) recommended a four-level
adjustment for St. John's role in the offense under section
3B1.1(a), because he was a leader, directing and controlling the
activities of others of a criminal activity involving five or more
persons. The government objected to the four-level increase. At
sentencing, the district court adopted the PSR, including the
characterization of St. John as a leader or organizer, and
sentenced St. John to 121 months (based on a Guidelines range of
121 to 151 months), 3 years supervised release, and a $6,000 fine.
St. John did not file a direct criminal appeal.
St. John moved to vacate his sentence, claiming he received
ineffective assistance of counsel when counsel failed to object to
the factual allegations in the PSR and failed to object to the
four-level increase under section 3B1.1(a). St. John asserted for
the first time that there were only four participants in the
conspiracy, and thus section 3B1.1(c) applied.
Addressing the merits, the district court concluded St. John
was not entitled to section 2255 relief. The court concluded
counsel was not deficient for failing to argue for a two-level
adjustment under section 3B1.1(c), because St. John had admitted to
being a manager or supervisor in the plea agreement, or for failing
to argue for a three-level adjustment under section 3B1.1(b)
because such an argument could have jeopardized the two-level
decrease for acceptance of responsibility and St. John had conceded
in his section 2255 motion he "organized and recruited" two
participants. In addition, the court determined St. John was not
prejudiced because the government had advanced the same argument.
As for counsel's alleged failure to object to false factual
allegations in the PSR, the court concluded St. John had not set
forth any specific inaccuracies.
Because the district court addressed the merits of the
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ineffective-assistance claim, we do so as well. See Rogers v.
United States, 1 F.3d 697, 699 (8th Cir. 1993) (per curiam).
St. John's ineffective-assistance claim is governed by
Strickland v. Washington, 466 U.S. 668, 687 (1984), which requires
a showing of both deficient performance and resulting prejudice.
We conclude, even if counsel was deficient in failing to object to
factual inaccuracies in the PSR, St. John has not proven prejudice.
St. John is not subject to a two-level adjustment under section
3B1.1(c), because he admitted in the plea agreement he was a
manager or supervisor of a criminal activity involving five or more
participants. In addition, St. John was not prejudiced by
counsel's failure to assert that he should not have received a
four-level adjustment under section 3B1.1(a), because the
government did so for him. Moreover, by leaving the argument for
the government to assert, counsel preserved St. John's acceptance-
of-responsibility reduction. See U.S.S.G. § 3E1.1(a) & comment.
(n.1(a)) (defendant who falsely denies relevant conduct which
sentencing court determines to be true has acted in manner
inconsistent with acceptance of responsibility).
Accordingly, we affirm the judgment of the district court.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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