Opinion

1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 SOUTHERN DISTRICT OF CALIFORNIA 12 UNITED STATES OF AMERICA, Case No. 21-cr-02909-BAS-3 13 Case No. 25-cv-03486-BAS Plaintiff, 14 ORDER DENYING DEFENDANT’S MOTION TO 15 v. VACATE, SET ASIDE, OR 16 STEPHEN CALHOUN, CORRECT SENTENCE UNDER 28 U.S.C. § 2255 (ECF No. 479)1 17 Defendant.

18 19 20 Pursuant to the Plea Agreement, Defendant Stephen Calhoun pled guilty to one 21 count of RICO conspiracy, two counts of Hobbs Act robbery, and one count of 22 using/brandishing a firearm in relation to a crime of violence. (ECF No. 482.) The 23 Court sentenced him to 176 months in custody. (ECF No. 486-1, Ex. 2.) 24 Defendant now files a Motion seeking to vacate his conviction under 28 U.S.C. 25 § 2255, claiming ineffective assistance of counsel. (ECF No. 479.) Defendant argues 26 that his attorney was ineffective, first, for failing to argue for a youthful offender 27 1 adjustment at sentencing and, second, for advising him that he would do no more 2 than five years in custody and would get credit for the time he had spent in state 3 custody. (Id.) The Government responds. (ECF No. 486.) For the reasons stated 4 below, the Court DENIES the Motion. 5 I. BACKGROUND 6 In the first six months of 2019, Defendant and a group of his cohorts from the 7 Lincoln Park Bloods gang (“LPK”) committed a series of violent robberies. 8 According to Defendant’s admissions during his guilty plea, he participated in three 9 robberies in support of his allegiance to LPK: two jewelry stores in which he smashed 10 glass jewelry cases and clerks were threatened with weapons, and one medicine shop 11 in which a codefendant held the clerk at gunpoint while Defendant jumped over the 12 counter and stole prescription bottles. In each robbery, Defendant admitted he knew 13 in advance that his co-conspirator would be armed to carry out the robbery. (ECF 14 No. 392, at § II.B.) The store clerk victims provided statements about the trauma 15 they had suffered because of the robberies. (Pre-Sentence Report (“PSR”) ¶¶ 53–60, 16 ECF No. 412.) 17 During this time period, also as part of his gang activity, Defendant and two of 18 his codefendants assaulted an individual, demanding, “Where you from?” while 19 proclaiming, “We from Lincoln.” (Pre-Sentence Report ¶¶ 30–33.) Defendant was 20 convicted of assault by means likely to produce great bodily injury in state court for 21 this conduct, was sentenced to four years, and spent 30 months in state custody before 22 he was turned over to the federal authorities for prosecution on this case. Assault by 23 means likely to produce great bodily injury is not a predicate act for the federal RICO 24 charge. 25 Despite Defendant’s young age at the time of the offense (18 years), he had 26 managed to rack up a lengthy criminal record as a juvenile. In 2014, a true finding 27 was made with respect to grand theft, tampering with a vehicle, and possessing 1 there was a true finding for car theft and burglary, and in 2017, there was a true 2 finding for assault with a deadly weapon. (PSR ¶¶ 104–13.) 3 Defendant and the Government reached a plea agreement, in which Defendant 4 agreed to plead guilty to the RICO conspiracy, two of the Hobbs Act robbery counts, 5 and one count of using/brandishing a firearm in relation to a crime of violence. (ECF 6 No. 392.) For this last charge, Defendant faced a mandatory minimum sentence of 7 seven years in custody, consecutive to any other term of imprisonment. (Id.) In 8 exchange, the Government agreed to dismiss two other counts of using/brandishing 9 a firearm in relation to a crime of violence, which would have increased Defendant’s 10 sentence by an additional mandatory minimum of seven years for each count, for a 11 total mandatory minimum sentence of twenty-one years, again consecutive to the 12 underlying sentence for the conspiracy and robberies. (Id.) 13 Defendant signed a written Plea Agreement in which he acknowledged that for 14 the count of using/brandishing a firearm, he faced a mandatory minimum custodial 15 term of seven years and a maximum term of life in prison. (ECF No. 392, at § III.) 16 He agreed that this prison term would be consecutive to any other term of 17 imprisonment imposed and that he was facing a maximum custodial term of 20 years 18 for the other three counts to which he was pleading guilty. (Id.) 19 In the Plea Agreement, Defendant averred that no one had made any promises 20 to him other than those in the Plea Agreement. (Id. at § VI.B.) And finally, an entire 21 section of the Plea Agreement was devoted to discussing the fact that the ultimate 22 sentence was within the sole discretion of the Judge: 23 The Government has not made and will not make any representation as 24 to what sentence Defendant will receive. Defendant understands that the sentencing judge may impose the maximum sentence provided by statute, 25 and is also aware that any estimate of the probable sentence by defense 26 counsel is a prediction, not a promise and is not binding on the Court. 27 (Id. § XI (emphasis in original).) 1 At his guilty plea hearing, the Magistrate Judge asked whether Defendant had 2 read the entire Plea Agreement or had it read to him, to which he responded, 3 “Absolutely.” (ECF No. 486-1, Ex. 1, at 4:15–17.) He was also told again by the 4 Magistrate Judge that he was facing a mandatory minimum sentence of seven years 5 and a maximum of life in custody, consecutive to any other term of imprisonment, 6 and Defendant said he understood. (Id. 9:6–15.) The Magistrate Judge confirmed 7 that the District Judge can impose the maximum sentence and does not have to follow 8 the Plea Agreement, and Defendant said he understood. (Id. 12:5–12.) Finally, 9 Defendant said no one had promised him anything other than what was in the Plea 10 Agreement and that he was satisfied with the representation of his attorney. (Id. 11 13:4–9, 14:20–23.) 12 At sentencing, during his colloquy, Defendant made a pitch for a lower 13 sentence because of his youth and for credit for the time he had spent on his state 14 sentence. (ECF No. 486-1, Ex. 2, at 7:7, 15.) The Court agreed that Defendant 15 should receive some consideration for the fact that he was “very young at the time” 16 he committed the offense. (Id. 13:18–21.) But the Court disagreed that Defendant’s 17 sentence should be reduced 30 months for the time he had spent in custody on the 18 state court conviction, explaining that Defendant’s conviction for assault was a 19 totally separate act from the three jewelry store/medicine shop robberies and that 20 assault did not count as a RICO activity. (Id. 11:4–11.) 21 In Defendant’s Sentencing Memorandum, defense counsel recommended a 22 sentence of 117 months, but at the sentencing hearing, defense counsel amended that 23 to 108 months or 9 years in custody. (Id. 5:3; ECF No. 433.) The Government 24 recommended a sentence of 180 months or 15 years. (ECF No. 431.) Ultimately, 25 the Court sentenced Defendant to a total of 176 months, finding “despite the fact that 26 you were only 18, you seem to have managed to chalk up a pretty lengthy record of 27 violent crime . . . you’re basically terrorizing the neighborhood and [these crimes 1 II. ANALYSIS 2 “[A] defendant who pleads guilty upon the advice of counsel may only attack 3 the voluntary and intelligent character of the guilty plea by showing that the advice 4 he received from counsel was ineffective.” Lambert v. Blodgett, 393 F.3d 943, 979 5 (9th Cir. 2004) (quoting Hill v. Lockhart, 474 U.S. 52, 56–57 (1985)). Even in a 6 claim of ineffective assistance of counsel in a guilty plea, Defendant must meet the 7 Strickland test; that is, he must show, first, “that counsel’s assistance was not within 8 the range of competence demanded of counsel in criminal cases,” and second, that 9 he suffered actual prejudice as a result of this incompetence. Lambert, 393 F.3d at 10 979–80; Hill, 474 U.S. at 57–58. 11 “A deficient performance is one in which counsel made errors so serious that 12 []he was not functioning as the counsel guaranteed by the Sixth Amendment.” Iaea 13 v. Sunn, 800 F.2d 861, 864 (9th Cir. 1986) (citing Strickland v. Washington, 466 U.S. 14 668, 687 (1984)). “Review of counsel’s performance is highly deferential and there 15 is a strong presumption that counsel’s conduct fell within the wide range of 16 reasonable representation.” United States v. Ferreira-Alameda, 815 F.2d 1251, 1253 17 (9th Cir. 1987). The court should not view counsel’s actions through “the distorting 18 lens of hindsight.” Hendricks v. Calderon, 70 F.3d 1032, 1036 (9th Cir. 1995) 19 (quoting Deutscher v. Whitley, 884 F.2d 1152, 1159 (9th Cir. 1989)). 20 In order to satisfy the second “prejudice” prong in a guilty plea case, 21 “defendant must show that there is a reasonable probability that, but for counsel’s 22 errors, he would not have pled guilty and would have insisted on going to trial.” Hill, 23 474 U.S. at 59. A plea agreement and advisement by the judge taking the guilty plea 24 alerting the defendant to the potential consequences of his guilty plea can cure an 25 attorney’s faulty prediction about a defendant’s likely sentence. Womack v. Del 26 Papa, 497 F.3d 998, 1003 (9th Cir. 2007). 27 Thus, in Dognaniere v. United States, 914 F.2d 165, 168 (9th Cir. 1990), the 1 ineffective assistance of counsel where the petitioner claimed his attorney told him 2 he would receive a sentence of not more than 12 years in custody, but the court 3 sentenced him to 15 years. The court explained that the petitioner “suffered no 4 prejudice from his attorney’s prediction because, prior to accepting his guilty plea, 5 the court explained that the discretion as to what the sentence would be remained 6 entirely with the court.” Id.; accord United States v. Garcia, 909 F.2d 1346, 1348 7 (9th Cir. 1990) (explaining that an erroneous sentencing prediction “does not entitle 8 a defendant to challenge his guilty plea” where the defendant was advised the court 9 was not bound by the sentencing agreement). 10 In this case, Defendant first claims that his attorney failed to argue for a 11 youthful offender adjustment at sentencing. However, Defendant himself raised the 12 issue of his youth. The Court then took into consideration that Defendant was “very 13 young at the time” he committed the offense, but the Court ultimately found that 14 “despite the fact that you were only 18, you seem to have managed to chalk up a 15 pretty lengthy record of violent crime. You’re basically terrorizing the neighborhood 16 and [these crimes were] particularly egregious.” (ECF No. 486-1, Ex. 2, at 13:18– 17 21.) Since the Court considered Defendant’s youth at the time of sentencing, 18 Defendant cannot show any prejudice from his attorney’s failure to raise this issue. 19 Second, Defendant claims that his attorney promised that Defendant would 20 receive no more than five years in custody and that he would get credit for the time 21 he spent in state custody. Defendant’s defense counsel rebuts this claim. (ECF No. 22 486-1, Ex. 3, ¶ 5.) The Court finds Defendant’s claim that his attorney told him he 23 would do no more than five years in custody to be patently incredible. Defendant 24 was told on multiple occasions that he was facing at least a seven-year mandatory 25 minimum sentence on top of the sentence for the underlying offenses, and each time, 26 Defendant stated he understood. (ECF No. 392, at § III; ECF No. 486-1, Ex. 1, at 27 4:15–17, 9:6–15.) Additionally, Defendant repeatedly said that no one had promised 1 || him anything other than what was in the Plea Agreement. (ECF No. 392, at § □□□□ 2 || ECF No. 486-1, Ex. 1, at 4:15—17, 13:4—9, 14:20-23.) 3 Even if Defendant is to be believed that his attorney told him he would receive 4 ||no more than five years and that he would get credit for the time he spent in state 5 || custody, he cannot show prejudice. Throughout his guilty plea, Defendant was told 6 that the ultimate sentence would be decided by the Court and that the Court was not 7 ||bound by the Plea Agreement. (ECF No. 392, § XI; ECF No. 486-1, Ex. 1, at 4:15-— 8 17, 12:5-12.) Thus, any faulty prediction by his defense counsel was cured by both 9 |/the written Plea Agreement and the advisements made during his guilty plea. 10 ||. CONCLUSION 11 For the reasons stated above, Defendant’s Motion to Vacate Under 28 U.S.C. 12 ||§ 2255 (21-cr-02909-BAS-3, ECF No. 479) and the Petition filed (25-cv-03486- 13 ||BAS) are DENIED. The Clerk of Court shall close the civil companion case in 25- 14 || cv-03486-BAS. 15 IT IS SO ORDERED. 16 17 || DATED: March 9, 2026 (pallu Bahar 18 Hon. Cynthia Bashant, Chief Judge 9 United States District Court 20 21 22 23 24 25 26 27 28