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United States v. Hester

United States District Court, N.D. Florida, Pensacola Division

May 14, 2019




         This matter is before the court upon a “Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody” (ECF No. 427), filed by Defendant Jared Luke Hester. The Government filed a response (ECF No. 433), and former defense counsel separately filed an affidavit (ECF No. 432). Defendant Hester has not filed a reply, despite having been afforded an opportunity and time in which to do so (see ECF No. 428). The case was referred to the undersigned for the issuance of all preliminary orders and any recommendations to the district court regarding dispositive matters. See N.D. Fla. Loc. R. 72.2; see also 28 U.S.C. § 636(b) and Fed.R.Civ.P. 72(b). After a review of the record and the arguments presented, the undersigned recommends that the § 2255 motion be denied without an evidentiary hearing because Hester's claims are without merit. See Rules 8(a) and (b), Rules Governing Section 2255 Cases.


         On April 16, 2013, a grand jury returned a two-count indictment naming eight defendants (ECF No. 3). Defendant Jared Hester and the other seven co-defendants were charged in Count Two with conspiracy to possess and distribute pseudoephedrine, knowing and having reasonable cause to believe that it would be used to manufacture methamphetamine, in violation of 21 U.S.C. § 841(c)(2) (ECF No. 3 at 2). Joseph Peterson was the only defendant also charged in Count One, with conspiracy to manufacture and distribute methamphetamine. Attorney Christopher Klotz was appointed to represent Hester on April 24, 2013 (ECF No. 54).

         Hester proceeded to trial after the remaining co-defendants tendered guilty pleas. Co-defendants Hunter Myrick, Shannon Hurd, and Stephanie Gunderson testified against Hester at his trial (ECF No. 287). DEA Special Agent Claude Cosey also testified, including about the methamphetamine manufacturing process and how pseudoephedrine is a necessary ingredient, as well as the daily/monthly legal limits on purchasing pseudoephedrine at pharmacies (ECF No. 237, PSR ¶ 54). SA Cosey showed the jury a video of Hester purchasing pseudoephedrine at area pharmacies during the course of the conspiracy (id.). He also showed the jury certified pharmacy records of Hester's 41 purchases (and attempted purchases) of pseudoephedrine during the course of the conspiracy, and his co-defendants' (approximately) 330 purchases and attempted purchases during the same time frame (id.). SA Cosey presented a summary exhibit demonstrating that Hester and his co-defendants often purchased pseudoephedrine on the same date in the same pharmacy, sometimes within minutes of each other (id.).

         Cooperating co-defendants Myrick, Hurd, and Gunderson testified that the conspirators, including Hester, purchased pseudoephedrine at area pharmacies and then provided it to Joseph Peterson (who did not testify) or Stephanie Gunderson for use in cooking methamphetamine (ECF No. 237 at ¶ 55). Each witness testified to having seen Hester provide boxes of pseudoephedrine for this purpose. Consistent with the records presented by Cosey, the witnesses testified that the conspirators purchased the pseudoephedrine sequentially so as not to arouse suspicion by entering the pharmacy together. The witnesses also testified that Hester received money in exchange for the pseudoephedrine he provided to the “cooks, ” and that sometimes he stayed after the exchange to smoke methamphetamine as well (id.).

         The defense presented the testimony of Phil Wolfe, Ricky Brown, and Bobby Green, who testified that Hester was a good man and a hard worker in the construction business, and that they never saw or suspected he was using methamphetamine (ECF No. 237, PSR ¶ 56). Ashlee Hester, Defendant Hester's wife, also testified. She discussed her extreme allergies and sinus problems for which she took pseudoephedrine daily, and she noted that her husband was allergic to the cats they got in July of 2012 (id. at 57). She did not testify as to how she obtained the pseudoephedrine.

         Defendant Hester testified in his own behalf (ECF No. 237, PSR ¶ 58; ECF No. 274 at 220, 237-38). He testified that he never used methamphetamine, and that all of his pseudoephedrine purchases were for him, for his wife, or for co-defendant Peterson's mother. He testified on cross-examination that the pseudoephedrine purchases made on the same day and sometimes within minutes of his co-defendants' purchases at the same pharmacies were mere coincidences (ECF No. 274 at 228-29).

         The jury found Hester guilty of the offense as charged in Count Two of the indictment (ECF No. 157). The jury was not required to make a quantity determination.

         The Presentence Investigation Report (“PSR”) attributed 41 purchases and attempted purchases of boxes of pseudoephedrine to Hester, which equated to 92.1 grams of pseudoephedrine (ECF No. 218, PSR ¶ 51). Hester's base offense level was 30 because the offense conduct involved at least 70 grams but less than 100 grams of pseudoephedrine. He received a two-level upward adjustment for obstruction of justice due to his false testimony at trial, and thus his total offense level was 32 (ECF No. 218, PSR ¶¶ 63-71). Hester's criminal history category was II (PSR ¶¶ 76-78), and the applicable advisory guidelines range was 135 to 168 months (PSR ¶ 114).

         At sentencing, counsel argued that the amount of pseudoephedrine attributed to Hester was overstated because at least some of the pseudoephedrine Hester purchased was for his and his wife's legitimate use, although Hester did not testify to this effect. The court overruled the objection, but adjusted Hester's offense level downward by three levels as it had in the co-defendants' cases (ECF No. 261 at 20- 23). The court overruled counsel's request for a minor role adjustment, after the Government argued Hester could not be a minor participant because he was not held accountable for the entire scope of the conspiracy, but only what he had done (id. at 23-25). The adjusted guidelines range was 97 to 121 months. The court sentenced Hester at the low end of this range, to a term of 97 months' imprisonment, noting, among other things, that Mr. Hester had “lost” five levels on his sentence (i.e., points for acceptance of responsibility were “lost” and points for obstruction were added) due to his decision to go to trial and testify falsely (id. at 37).

         Hester appealed, challenging a jury instruction, the sufficiency of the evidence to support his conviction, and the calculation of the amount of pseudoephedrine involved in his offense (ECF No. 331). On May 9, 2014, the Eleventh Circuit affirmed his conviction, but vacated his sentence because the district court did not “make factual findings to support its decision to attribute to Hester all the pseudoephedrine that he purchased” (id. at 2).

         On remand, the district court imposed the same sentence after hearing testimony from Hester's wife and lengthy argument from counsel (ECF Nos. 356, 352, 353). The base offense level before any adjustments was 30, but as the court did previously, it reduced that level to 27, noting that level 30 was “excessive” (ECF No. 356 at 40). The court also noted that if a guidelines-change had “already” reduced Hester's offense level to 28, it would have used that level to determine Hester's advisory guidelines range, rather than level 27 (id.). However, it applied level 27 under the rule of leniency (id.)

         Hester again appealed. He argued that most of the pseudoephedrine attributed to him was purchased for lawful use (ECF No. 398). The Eleventh Circuit found no clear error in the district court's contrary finding. It noted that the district court was “entitled to credit the coconspirators' accounts, which were consistent with certified records from seven pharmacies showing that Hester and his coconspirators had made their purchases in tandem” and that the district court reasonably discredited the testimony of Hester's wife about the amount of Sudafed she consumed as inflated (id. at 3).

         In the present motion, Hester contends that his attorney provided constitutionally ineffective representation at trial and at sentencing. His claims can be grouped into three basic allegations: (1) counsel failed to warn Hester that testifying would hurt his sentencing exposure if he was found guilty at trial; (2) counsel failed to investigate two witnesses who were going to either testify falsely or retract incriminating statements against him; and (3) counsel failed to properly present evidence about Ashlee Hester's medical condition either to the jury or to the sentencing court, resulting in prejudice to Hester.


         General ...

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