1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 SAN JOSE DIVISION 6 7 UNITED STATES OF AMERICA, Case No. 16-cr-00518-BLF Case No. 21-cv-01921-BLF 8 Plaintiff,

ORDER GRANTING IN PART AND

9 v. DENYING IN PART DEFENDANT’S § 2255 MOTION; VACATING 10 DAMARI WILLIAM SINGLETON, SENTENCE; AND DIRECTING

COUNSEL TO MEET AND CONFER

11 Defendant. RE A NEW SENTENCING DATE 12 [Re: ECF 153]

13 I. INTRODUCTION 14 After pleading guilty to one count of sex trafficking of children, Defendant Damari 15 William Singleton (“Singleton”) was sentenced to a 210-month term of imprisonment and a 7-year 16 term of supervised release. He filed an appeal but voluntarily dismissed it. Singleton, represented 17 by counsel, now brings a Motion to Vacate and Correct Conviction and Sentence Pursuant to 28 18 U.S.C. § 2255, asserting two claims of ineffective assistance of counsel (“IAC”) at sentencing. He 19 asks the Court to vacate his sentence and set a new sentencing hearing at which he can present 20 evidence and arguments that allegedly should have been presented the first time around. 21 In his first IAC claim, Singleton asserts that his trial counsel, Michael Hinckley, was 22 ineffective for failing to object to the criminal history category of V in the Presentence Report 23 (“PSR”) prepared by the United States Probation Office (“Probation”). According to Singleton, 24 two of the prior sentences included in Probation’s criminal history calculation should have been 25 treated as a single sentence under U.S.S.G. § 4A1.2(a)(2), and three of the prior sentences should 26 not have factored into the criminal history calculation at all. Had Mr. Hinckley raised those 27 objections, Singleton claims, his criminal history category would have been at most IV, and 1 In his second IAC claim, Singleton asserts that Mr. Hinckley was ineffective for conceding 2 that Singleton engaged in post-plea criminal conduct. The PSR stated, and the Government 3 argued, that Singleton sought to form a new prostitution ring while in custody awaiting sentence 4 after entering his guilty plea. The Court relied on that post-plea conduct in denying Singleton’s 5 request for a downward variance. Singleton contends that he did not form a new prostitution ring, 6 but merely sought to start a legal business focused on pornography and adult entertainment. Had 7 Mr. Hinckley challenged the Government’s characterization of his conduct, Singleton argues, the 8 Court would not have had a legitimate basis to deny his request for a downward variance. 9 In opposition, the Government argues that both of Singleton’s IAC claims are without 10 merit and that Singleton is entitled to no relief. The Government tacitly concedes that two of the 11 prior sentences listed in Probation’s criminal history calculation should have been treated as a 12 single sentence under U.S.S.G. § 4A1.2(a)(2), and that as a result the correct criminal history 13 category is at most IV. However, the Government argues that no prejudice flowed from Mr. 14 Hinckley’s failure to bring that error to the Court’s attention, because a criminal history category 15 of IV would have resulted in a Guidelines range of 188-235 months and Singleton’s sentence of 16 210 months is within that range. The Government disputes Singleton’s assertions that three of his 17 prior sentences should not have factored into the criminal history calculation, and that his counsel 18 should have challenged the Government’s characterization of his post-plea conduct as criminal. 19 Singleton’s § 2255 motion is GRANTED as to his first IAC claim based on trial counsel’s 20 failure to object to the criminal history category of V, and is DENIED as to his second IAC claim 21 based on trial counsel’s concession that he engaged in post-plea criminal conduct. The sentence is 22 VACATED, and counsel are directed to MEET AND CONFER regarding a new sentencing date. 23 II. BACKGROUND 24 Indictment 25 On December 15, 2016, a grand jury indicted Singleton on charges of conspiracy to 26 commit sex trafficking of children (Count 1), sex trafficking of children (Counts 2 and 3), 27 transportation of a minor for prostitution (Count 4), and coercion and enticement for prostitution 1 Offense Conduct 2 The PSR contains a detailed recitation of Singleton’s offense conduct, drawn from 3 investigative reports prepared by the Federal Bureau of Investigations (“FBI”) and the San Jose 4 Police Department. See PSR ¶¶ 6-31, ECF 94. In brief, Singleton and others operated a 5 prostitution business throughout the state of California, selling the commercial sexual services of 6 underage girls and adult women. See id. Singleton and a woman named Teyanna Michels, who 7 acted as Singleton’s “bottom bitch” (slang for a pimp’s number one girl), recruited underage girls 8 and young women to serve as prostitutes, posted advertisements for their sexual services, 9 transported them to and from prostitution dates, provided condoms and lubricant, and set rates for 10 specific services. See id. Among those recruited was 15-year old R.O., who was put to work in 11 hotels and sometimes had more than 10 dates a day. See id. ¶¶ 25-26. Another recruit was 17- 12 year old L.G. See id. ¶¶ 21-22. Singleton routinely had sex with his girls without a condom, 13 whether the girls wanted to or not, and he gave both R.O. and L.G. chlamydia. See id. 14 Guilty Plea 15 In January 2019, Singleton entered into a plea agreement with the Government pursuant to 16 Federal Rule of Criminal Procedure 11(c)(1)(B), under which Singleton agreed to plead guilty to a 17 single count of sex trafficking of children (Count 2) and the Government agreed to dismiss the 18 remaining counts. See Plea Agreement, ECF 87. The parties agreed that Singleton’s adjusted 19 offense level was 31 or 33, depending on whether the Court applied a two-point enhancement 20 under U.S.S.G. § 3B1.1(c) for being an organizer, leader, or manager of criminal activity. See 21 Plea Agreement ¶ 7. The parties did not agree on Singleton’s criminal history category, which 22 was left for later determination. See id. 23 The Court accepted Singleton’s guilty plea to Count 2 on January 22, 2019. See Criminal 24 Minutes, ECF 88. 25 Post-Plea Conduct 26 The PSR contains a description of Singleton’s conduct while in custody awaiting 27 sentencing, relying on facts drawn from reports, documents, and recordings of jail calls provided 1 a new prostitution ring from jail. See id. In several calls between Singleton and his brother, 2 Damien Walton a/k/a “Scoot,” the men discussed recruiting young women who had just been 3 released from jail. See id. ¶ 33. Singleton sent public records requests to sheriff’s offices and 4 detention facilities in California and Nevada, seeking information on female inmates between the 5 ages of 18 and 25, including their photographs, bail amounts, and release dates. See id. ¶¶ 34-35, 6 37. He wanted foster kids, women who had been on drugs, women with no families, and women 7 with low bails. See id. ¶ 33. Singleton contacted these women while they were still in custody, 8 pretending to be Scoot, and claiming that the brothers had a company involved in adult 9 entertainment, pornography, and other legal businesses. See id. Singleton urged Scoot to get 10 organized with a calendar of the women’s release dates, and to pick them up from custody before 11 they could go back to a boyfriend. See id. Singleton cautioned Scoot not to mention “the game” 12 to women while they were still in custody. See id. 13 In July 2019, Singleton spoke to a woman called “Princess,” telling her that he had a 14 “whole fucking team” including “snows, Asians,” and that he needed Princess to manage them. 15 See PSR ¶ 36. Singleton told Princess that she did not have to “get down” because she had 16 already been in the game, and now it was time for her to start selling the game. See id. Singleton 17 also told her that he didn’t “fuck with hotels,” that he used condos, and that he was “finna get an 18 empire.” See id. 19 Sentencing and Judgment 20 Singleton was sentenced on September 10, 2019. See Criminal Minutes, ECF 102; Hrg. 21 Tr., ECF 124. The plea agreement reflected that Singleton’s adjusted offense level was 31 or 33, 22 depending on whether the Court applied a two-point enhancement for being an organizer, leader, 23 or manager of criminal activity. Probation recommended that the two-point enhancement be 24 applied. See PSR ¶ 48. The Court found the enhancement to be appropriate based on Singleton’s 25 role in the charged offense, rejecting the defense’s argument to the contrary. See Hrg. Tr. 6:5-22. 26 Accordingly, the Court determined that the adjusted offense level was 33. See id. 27 The Court then addressed the criminal history category. Probation determined that 1 points because he committed the current offense while under a criminal justice sentence for false 2 identification to a peace officer, for a total of 10 criminal history points. See PSR ¶¶ 58-64. A 3 criminal history score of 10 establishes a criminal history category of V. See id. ¶ 64. Singleton’s 4 trial counsel, Mr. Hinckley, agreed with Probation’s calculation, stating “[t]he math is right.” Hrg. 5 Tr. 6:23-7:11. Based on the PSR, and absent objection by Mr. Hinckley, the Court found 6 Singleton’s criminal history category to be V. 7 Using an adjusted offense level of 33 and a criminal history category of V, the Court 8 calculated the Guidelines range as 210-262 months. See Hrg. Tr. 7:15-16. There were no 9 objections to that Guidelines calculation. See id. 7:22-24. The defense requested a downward 10 variance to the mandatory minimum sentence of 120 months imprisonment. See id. 17:16-26:6. 11 Probation recommended a downward variance to 144 months imprisonment. See PSR. The 12 Government requested a low Guidelines sentence of 210 months. See Hrg. Tr. 9:13-17:4. 13 The Court began its consideration of an appropriate sentence at the high end of the 14 Guidelines range, 262 months, due to the “horrific” nature of the offense and Singleton’s apparent 15 attempt to engage in further criminal activity from jail while awaiting sentencing. See Hrg. Tr. 16 32:15-21. The Court reduced the sentence to the low end of the Guidelines range, 210 months, 17 based on Singleton’s childhood poverty and abuse, as well as his diagnosis of a mental health 18 condition, post-traumatic stress disorder (“PTSD”). See id. 32:6-10. 19 The Court declined to grant a downward variance, finding that Singleton was a risk to the 20 public in light of his history of violence toward women and his post-plea efforts to continue 21 exploiting women. See id. 31:1-7. Mr. Hinckley did not dispute that Singleton attempted to set up 22 a new prostitution ring from jail, but he attributed Singleton’s conduct to his PTSD and lack of 23 mental health treatment. See id. 20:24-23:14. Mr. Hinckley argued that some people who have 24 mental illnesses are not in control, and he asked the Court to look at Singleton’s case from that 25 perspective. See id. 23:11-14. The Court found that Singleton’s mitigating factors were 26 adequately addressed by a low Guidelines range sentence, and concluded that his case was not 27 factually similar to others in which substantial variances were granted. See id. 32:10-14. 1 imprisonment, a 7-year term of supervised release, a special assessment in the amount of $100, 2 and restitution in an amount to be determined. See Hrg. Tr. 34:11-39:24. Judgment was entered 3 on September 19, 2019. See Jud., ECF 104. The Court held a restitution hearing on November 8, 4 2019, at which the parties stipulated to restitution in the amounts of $50,100.00 to R.O. and 5 $2,400.00 to L.G. See Criminal Minutes, ECF 114. 6 Appeal 7 Singleton filed a notice of appeal on September 23, 2019. See Notice, ECF 105. The 8 United States Court of Appeals for the Ninth Circuit granted Singleton’s motion for voluntary 9 dismissal of the appeal on March 31, 2020. See Order of USCA, ECF 148. 10 Present § 2255 Motion 11 Singleton timely filed the present § 2255 motion on March 18, 2021, asserting two IAC 12 claims alleging that his trial counsel, Mr. Hinckley, rendered ineffective assistance at sentencing.1 13 See § 2255 Mot., ECF 153. Briefing was delayed so the Government could pursue discovery 14 regarding Singleton’s IAC claims. The Government filed opposition to the § 2255 motion on 15 October 18, 2021. See Opp., ECF 165. The opposition is supported by a declaration obtained 16 from Mr. Hinckley, among other evidence. See Hinckley Decl., ECF 165-2. The Court granted 17 six stipulated requests for continuance of Singleton’s deadline for reply. See ECF 168, 170, 172, 18 174, 176, 178. Singleton filed a reply on December 5, 2022 and an amended reply on December 19 23, 2022. See Reply, ECF 179; Am’d Reply, ECF 180. He also filed a short supplemental brief 20 on January 26, 2023. See Suppl., ECF 181. The Court has considered all of the briefing. 21 III. LEGAL STANDARD 22 A prisoner in federal custody may move to vacate, set aside, or correct his sentence based 23 on a claim that “the sentence was imposed in violation of the Constitution or laws of the United 24 States, or that the court was without jurisdiction to impose such sentence, or that the sentence was 25

26 1 Singleton’s brief addresses the timeliness of his filing and also points out that the § 2255 motion is not precluded by his plea agreement. See § 2255 Mot. at 4-6, ECF 153. The Government does 27 not contend that the motion is untimely or barred by the plea agreement. See generally Opp., ECF 1 in excess of the maximum authorized by law, or is otherwise subject to collateral attack.” 28 2 U.S.C. § 2255(a). “Unless the motion and the files and records of the case conclusively show that 3 the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the 4 United States attorney, grant a prompt hearing thereon, determine the issues and make findings of 5 fact and conclusions of law with respect thereto.” 28 U.S.C. § 2255(b). “If the court finds . . . that 6 the sentence imposed was not authorized by law or otherwise open to collateral attack . . . the 7 court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or 8 grant a new trial or correct the sentence as may appear appropriate.” Id. 9 “An oral hearing is not necessary in all cases.” United States v. Rodriguez-Vega, 797 F.3d 10 781, 791 (9th Cir. 2015). “Frequently, as here, an expansion of the record accompanied by 11 supplemental briefs will suffice for that purpose.” Id. (district court did not abuse its discretion in 12 failing to conduct an evidentiary hearing where expanded record provided adequate basis to 13 resolve IAC claim). 14 A claim that trial counsel was ineffective at sentencing is cognizable under § 2255. See 15 Glover v. United States, 531 U.S. 198, 204 (2001). Thus, although a federal prisoner may not 16 directly attack a sentencing error under § 2255, he may claim that counsel’s failure to raise the 17 issue constituted ineffective assistance. See United States v. Reed, 230 F.3d 1368 (9th Cir. 2000) 18 (“Although Reed cannot directly attack his sentencing enhancement under U.S.S.G. § 2D1.1 ... he 19 can allege that his counsel’s failure to raise the issue fell below an ‘objective standard of 20 reasonableness.’”). 21 IV. DISCUSSION 22 As noted above, Singleton asserts two IAC claims relating to the assistance rendered by his 23 trial counsel, Mr. Hinckley, at sentencing. In the first claim, Singleton asserts that Mr. Hinckley 24 was ineffective for failing to object to the criminal history category of V in the PSR. In the second 25 claim, Singleton asserts that Mr. Hinckley was ineffective for conceding that he engaged in post- 26 plea criminal conduct, specifically, attempting to start a new prostitution ring while in custody 27 awaiting sentence. The Government argues that Singleton is not entitled to relief under either 1 The Supreme Court established a two-prong test for ineffective assistance of counsel in 2 Strickland v. Washington, 466 U.S. 668 (1984). First, the movant must establish that counsel’s 3 performance was deficient, meaning that “counsel’s representation fell below an objective 4 standard of reasonableness” as measured by “prevailing professional norms.” Strickland, 466 U.S. 5 at 688. Second, the movant must establish resulting prejudice. See id. at 694. Specifically, the 6 movant “must show that there is a reasonable probability that, but for counsel’s unprofessional 7 errors, the result of the proceeding would have been different.” Id. at 694. “A reasonable 8 probability is a probability sufficient to undermine confidence in the outcome.” Id. 9 A. First IAC Claim – Failure to Object to Criminal History Category V 10 In his first IAC claim, Singleton asserts that Mr. Hinckley was ineffective for failing to 11 object to the criminal history category of V in the PSR. This claim has two components. First, 12 Singleton contends that two of the prior sentences included in Probation’s criminal history 13 calculation should have been treated as a single sentence under U.S.S.G. § 4A1.2(a)(2). Second, 14 he contends that three of the prior sentences were related to the conspiracy underlying the current 15 conviction and therefore should not have factored into the criminal history calculation. 16 Probation determined that Singleton had 8 criminal history points based on the four prior 17 sentences listed below, plus 2 criminal history points because he committed the current offense 18 while under a criminal justice sentence for false identification to a peace officer, for a total of 10 19 criminal history points. See PSR ¶¶ 58-64. A criminal history score of 10 establishes a criminal 20 history category of V. See id. ¶ 64. 21 Date of Convict. Charge Type Sentence Points 22 7/30/2015 PC 148.9(a) Misdemeanor 3 years prob., 9 days jail 1 False ID to Police 23 4/21/2016 VC 14601.1 Misdemeanor 2 years prob., fine 1 Driv. on Susp. License 24 11/16/2016 PC 273.5 Felony 32 months prison 3 Corp. Injury on Spouse (concurrent with below) 25 PC 136.1 Witness Intimidation 26 PC 236/237 False Imprisonment 27 11/16/2016 PC 459/460 Felony 2 years prison 3 1 1. Single Sentence under U.S.S.G. § 4A1.2(a)(2) 2 The Guidelines provide instructions for computing criminal history in U.S.S.G. § 4A1.2.2 3 The subsection relevant here, § 4A1.2(a)(2), reads in relevant part as follows:

4 (2) If the defendant has multiple prior sentences, determine whether those sentences are counted separately or treated as a single sentence. Prior sentences always are 5 counted separately if the sentences were imposed for offenses that were separated by an intervening arrest (i.e., the defendant is arrested for the first offense prior to 6 committing the second offense). If there is no intervening arrest, prior sentences are counted separately unless (A) the sentences resulted from offenses contained in 7 the same charging instrument; or (B) the sentences were imposed on the same day. Treat any prior sentence covered by (A) or (B) as a single sentence. 8 9 U.S.S.G. § 4A1.2(a)(2) (emphasis added). 10 Singleton argues that the two sentences imposed on November 16, 2016 – the first for 11 inflicting corporal injury on a spouse and related charges (“domestic violence offense”) and the 12 second for burglary (“burglary offense”) – should have been treated as a single sentence, because 13 there was no intervening arrest between the two offenses, and sentence on the two offenses was 14 imposed on the same day, to run concurrently. 15 The PSR was ambiguous as to when Singleton committed the domestic violence offense. 16 See PSR ¶ 58. It stated that the victim reported the offense on April 29, 2014 when law 17 enforcement officers spoke to her at a hospital emergency room. See id. However, it also stated 18 that the offense occurred on June 24, 2014 and that Singleton was arrested on that date. See id. 19 Finally, it stated that Singleton was not in custody when law enforcement spoke to the victim and 20 that an arrest warrant was issued later. See id. The parties agree that in fact Singleton was not 21 arrested on the domestic violence offense before he committed the burglary offense. The Santa 22 Clara County Superior Court imposed sentence in both cases on November 16, 2016, with the 23 sentences to run concurrently. See id. ¶¶ 58, 60. Accordingly, the sentences on the domestic 24 violence and burglary offenses should have been treated as one sentence for purposes of 25 calculating Singleton’s criminal history. The failure to do so was error. 26 2 “The sentencing court generally is to use the Guidelines Manual in effect on the date of 27 sentencing.” United States v. Marler, 527 F.3d 874, 877 n.1 (9th Cir. 2008). Because U.S.S.G. § 1 The Court finds unpersuasive the Government’s suggestion that Singleton’s arrest on an 2 unrelated offense between committing the domestic violence offense and the burglary offense 3 could qualify as an intervening arrest for purposes of U.S.S.G. § 4A1.2(a)(2). See Opp. at 12. 4 Such an approach would be contrary to the plain language of the guideline, which defines 5 “intervening arrest” in the following parenthetical: “(i.e., the defendant is arrested for the first 6 offense prior to committing the second offense).” The abbreviation “i.e.,” from the Latin “id est,” 7 means “that is.” Merriam-Webster Online Dictionary, https://www.merriam- 8 webster.com/dictionary/i.e. (last visited January 31, 2023). Thus, the parenthetical explanation 9 does not merely provide an example of circumstances that would qualify as an “intervening 10 arrest,” it explains what an intervening arrest is in the context of the guideline. 11 The Government tacitly recognizes that there is no qualifying intervening arrest in this 12 case, citing to an unpublished 1994 Ninth Circuit decision holding that the intervening arrest must 13 be for the first of the related offenses. Citation to that decision is impermissible under Ninth 14 Circuit Rule 36-3. See Ninth Circuit Rule 36-3 (“Unpublished dispositions and orders of this 15 Court issued before January 1, 2007 may not be cited to the courts of this circuit, except in 16 [circumstances not applicable here].”). However, given the plain language of U.S.S.G. § 17 4A1.2(a)(2), and the lack of any cases within the Ninth Circuit applying the interpretation offered 18 by the Government, the Court concludes that Singleton’s arrest on an unrelated offense does not 19 qualify as an intervening arrest here. 20 Application of U.S.S.G. § 4A1.2(a)(2) reduces Singleton’s criminal history by 3 points, 21 from 10 to 7.3 A criminal history score of 7 establishes a criminal history category of IV, which 22 when combined with adjusted offense level of 33 results in a Guidelines range of 188-235 months. 23 See U.S.S.G. Ch. 5, Pt. A. 24

25 3 Singleton’s motion states that application of U.S.S.G. § 4A1.2(a)(2) reduces Singleton’s criminal history by only 2 points. See § 2255 Mot. at 24. However, his Amended Reply correctly states 26 that the reduction is 3 points. See Am’d Reply at 4 & n.4, ECF 180. This discrepancy does not affect the analysis, as the criminal history category would be IV whether Singleton had 7 or 8 27 criminal history points. See U.S.S.G. Ch. 5, Pt. A. 1 Singleton contends that Mr. Hinckley provided ineffective assistance when he failed to 2 determine whether Singleton in fact was arrested on the domestic violence offense before 3 committing the burglary offense. In a declaration submitted by the Government, Mr. Hinckley 4 concedes that the prior sentences on the domestic violence and burglary offenses should have been 5 treated as a single sentence under U.S.S.G. § 4A1.2(a)(2). See Hinckley Decl. ¶ 4, ECF 165-2. 6 Mr. Hinckley states that he did not investigate the application of U.S.S.G. § 4A1.2(a)(2) because 7 he relied on erroneous statements in the PSR and a criminal history printout indicating that 8 Singleton was arrested on the domestic violence offense on June 24, 2014. See id. Given that 9 U.S.S.G. § 4A1.2(a)(2) clearly would have applied but for an intervening arrest, and the 10 ambiguities in the PSR as to whether such an arrest occurred, Singleton argues that it was 11 objectively unreasonable for Mr. Hinckley not to fully investigate the potential application of 12 U.S.S.G. § 4A1.2(a)(2). The Court agrees. The 6 criminal history points attributed to the 13 sentences on the domestic violence and burglary offenses comprised the majority of criminal 14 history points in this case. Thus, the potential impact of U.S.S.G. § 4A1.2(a)(2) was apparent. 15 The Court finds that Mr. Hinckley’s failure to verify whether an intervening arrest occurred 16 constituted deficient performance. 17 To establish prejudice resulting from this deficiency, Singleton “must show that there is a 18 reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding 19 would have been different.” Strickland, Id. 466 U.S. at 694. As discussed above, the Court 20 began its determination of an appropriate sentence at the high end of the Guidelines range, which 21 the Court had calculated to be 210-262 months based on an adjusted offense level of 33 and a 22 criminal history category of V. See Hrg. Tr. 7:15-16, 32:15-21. From its starting place of 262 23 months, the Court came down to the low end of the Guidelines range in consideration of 24 Singleton’s childhood poverty and abuse and mental health condition. See id. 32:6-10. The Court 25 ultimately imposed a low Guidelines range sentence of 210 months imprisonment. See id. 34:11- 26 39:24. The Court finds that there is a reasonable probability it would have imposed a different 27 sentence had it considered a Guidelines range of 188-235 months rather than a range of 210-262 1 The Court finds unpersuasive the Government’s argument that Singleton was not 2 prejudiced because the 210-month term of imprisonment happens to fall within the lower 3 Guidelines range. The Government has not cited any authority to support its argument. The 4 Supreme Court has emphasized that “[D]istrict courts must begin their analysis with the 5 Guidelines and remain cognizant of them throughout the sentencing process.” Rosales-Mireles v. 6 United States, 138 S. Ct. 1897, 1904 (2018) (internal quotation marks and citation omitted). 7 “Courts are not bound by the Guidelines, but even in an advisory capacity the Guidelines serve as 8 a meaningful benchmark in the initial determination of a sentence and through the process of 9 appellate review.” Id. (internal quotation marks and citation omitted). The Supreme Court has 10 cautioned, however, that “to consult the applicable Guidelines range, a district court must first 11 determine what that range is” by applying “the offense level and the criminal history category.” 12 Id. While those statements were made in the context of the Supreme Court’s discussion of plain 13 error review of a miscalculation of the applicable Guidelines range, they underline the importance 14 of a correct Guidelines calculation in determining an appropriate sentence. 15 The Court observes that Singleton has submitted a supplemental brief indicating that the 16 Bureau of Prisons (“BOP”) determines an inmate’s security classification based in part on the 17 inmate’s criminal history points. See Suppl., ECF 181. Singleton argues that trial counsel’s 18 failure to challenge Probation’s criminal history calculation resulted in his placement in the 19 “High”/“Maximum” security classification rather than the “Medium” security classification. See 20 id. Singleton appears to argue that this establishes additional prejudice flowing from Mr. 21 Hinckley’s deficient representation. 22 The Court need not rely on the supplemental brief in order to grant Singleton’s motion, nor 23 would such reliance be appropriate given that the supplemental brief was not timely filed and the 24 Government has not had a chance to respond to it. However, the supplemental brief raises a 25 concern that the error in Singleton’s criminal history calculation identified above may be having a 26 present negative effect on his security classification. For that reason, the Court has expedited its 27 consideration of Singleton’s § 2255 motion even though it has a number of other matters on its 1 Accordingly, Singleton’s § 2255 motion is GRANTED IN PART on his first claim for IAC 2 insofar as that claim is based on Mr. Hinckley’s failure to challenge the criminal history category 3 of V based on application of U.S.S.G. § 4A1.2(a)(2). The Court will vacate the sentence imposed 4 in reliance on that incorrect criminal history category, direct Probation to prepare a revised PSR 5 with respect to the appropriate criminal history category and resulting Guidelines range, and set a 6 new sentencing hearing as soon as is practicable. 7 2. Related Conduct 8 “[W]hen a defendant has received a prior sentence, the district court must determine 9 whether to take the prior sentence into account in either the base offense level calculation or the 10 criminal history calculation.” United States v. Rivera-Gomez, 634 F.3d 507, 511 (9th Cir. 2011). 11 “To do so, the district court must determine whether the conduct underlying that prior sentence is 12 relevant to the crime of conviction, as defined in § 1B1.3(a)(1)(A).” Id. “If the conduct 13 underlying the prior sentence constitutes relevant conduct to the crime of conviction, then it must 14 be included in the offense level calculation (i.e., it is accounted for as part of the specific offense 15 characteristics), and cannot be included in the criminal history calculation.” Id. “On the other 16 hand, if the conduct underlying the prior sentence is not relevant to the crime of conviction, then 17 the prior sentence must be included as part of the defendant’s criminal history score.” Id. at 512. 18 Singleton contends that Mr. Hinckley should have argued that the conduct underlying three 19 of the four prior sentences constituted relevant conduct to the current conviction, and therefore 20 should not have been included in the criminal history calculation. The three prior sentences are 21 those imposed for Singleton’s July 30, 2015 conviction for providing false identification to police 22 (“false ID offense”); November 16, 2016 conviction for the burglary offense discussed in Section 23 VI.A.1, above; and April 21, 2016 conviction for driving on a suspended license (“suspended 24 license offense”). Singleton asserts that successful arguments with respect to some or all of those 25 sentences would have eliminated sufficient criminal history points to reduce his criminal history 26 category to III or even II. If combined with an adjusted offense level of 33, a criminal history 27 category of III would result in a Guidelines range of 168 to 210 months, and a criminal history 1 Singleton contends that Mr. Hinckley’s failure to pursue those potential reductions in the criminal 2 history category provides an additional basis to grant relief on his first IAC claim. 3 a. False ID Offense 4 Probation attributed 1 criminal history point to Singleton’s sentence on a July 30, 2015 5 conviction for providing false identification to police. See PSR ¶ 59. The conviction arose from a 6 vehicle stop on January 24, 2015. See id. The PSR indicates that according to the Sacramento 7 Police Department arrest report, officers observed a vehicle driving without front license plates 8 and conducted a traffic stop. See id. Singleton, who was driving the vehicle, told officers his 9 name was Keith Adams. See id. Officers conducted a records check and were unable to find a 10 driver’s license for a Keith Adams. See id. Singleton then admitted that he had provided a false 11 name and provided officers with his true name. See id. The officers arrested Singleton based on 12 several active arrest warrants. See id. 13 Singleton asserts that this vehicle stop occurred shortly after a January 16, 2015 raid of his 14 apartment by San Jose police. See Singleton Decl. ¶ 2, ECF 153-2. Singleton characterizes the 15 raided apartment as the central location of the prostitution activities involving R.O. See id. 16 According to Singleton, his co-conspirator Teyanna Michels and others were arrested during the 17 raid, and when he bailed Michels out of jail a few days later, Michels told him that she and another 18 person had implicated Singleton in the offense. See id. Singleton asserts that when the 19 Sacramento police stopped his vehicle on January 24, 2015, he knew that he was wanted for his 20 role in the sex trafficking conspiracy and that was why he gave a false name. See id. Singleton 21 said he told officers he gave a false name because of other traffic violations, but actually it was 22 because he thought there was an arrest warrant for him on child sex trafficking charges. See id. 23 Under these circumstances, Singleton contends, Mr. Hinckley should have objected to inclusion of 24 the sentence on the false ID offense in his criminal history calculation on the basis that it more 25 properly should have been included in the offense level calculation. 26 In his declaration, Mr. Hinckley states that he did not argue that the False ID offense was 27 relevant conduct to the current sex trafficking charge because he did not believe he had a basis to 1 the offense reflected that at the time of January 24, 2015 vehicle stop, Singleton knew he did not 2 have a valid driver’s license and knew he had outstanding traffic warrants. See id. In Mr. 3 Hinckley’s experience, both of those are common reasons why people give false names to the 4 police. See id. There was no warrant for Singleton based on sex trafficking at that time. See id. 5 “An ineffective assistance of counsel claim will fail if the conduct can be readily explained 6 as reasonable trial strategy.” Mendez v. Swarthout, No. 16-15026, 2018 WL 2077278, at *2 (9th 7 Cir. May 4, 2018). Mr. Hinckley’s determination that he had no basis to argue that the conduct 8 underlying the sentence on the false ID offense was relevant to the current crime of conviction 9 appears to be a reasonable strategy under the circumstances. “‘[A] court must indulge a strong 10 presumption that counsel’s conduct falls within the wide range of reasonable professional 11 assistance.’” Mejia-Mesa, 153 F.3d 925, 931 (9th Cir. 1998) (quoting Strickland, 466 U.S. at 12 689). Singleton has offered no factual or legal grounds sufficient to rebut that presumption. 13 Accordingly, the Court finds that Singleton has failed to show that Mr. Hinckley’s performance 14 was deficient for failing to argue that the sentence on the false ID offense should not be included 15 in the criminal history calculation. Having concluded that Singleton has not established deficient 16 performance, the Court need not and does not address Strickland’s second prong, prejudice. See 17 Strickland, 466 U.S. at 697 (“[T]here is no reason for a court deciding an ineffective assistance 18 claim to . . . address both components of the inquiry if the defendant makes an insufficient 19 showing on one.”). 20 b. Burglary Offense 21 Probation attributed 3 criminal history points to Singleton’s sentence on a November 16, 22 2016 conviction on the burglary offense. The PSR indicates that according to the Sunnyvale 23 Police Department arrest report, officers responded on January 7, 2015 to a report of a residential 24 burglary. See id. Electronics, jewelry, and a camera valuing more than $15,000 had been taken. 25 See id. The victim was out of the country, and was notified that his credit cards had been used at 26 Best Buy, the San Jose Marriott, and a limousine service. See id. During the investigation, the 27 officers viewed surveillance video from the Best Buy transaction and identified Singleton as the 1 individuals who used the victim’s credit card at an address associated with Singleton. See id. 2 Singleton states in his declaration that he committed the burglary for the purpose of 3 obtaining computers and other items for use in maintaining his prostitution business. See 4 Singleton Decl. ¶ 4. He claims that computers taken from the residence were used for internet 5 access to promote the prostitution business, the camera taken from the residence was used to 6 photograph women who worked for him to promote the prostitution business, and the credit cards 7 were used to buy items needed for the business, hire limousine services, and rent hotel rooms. See 8 id. In opposition, the Government argues that there is no evidence that the items stolen during the 9 burglary were used in furtherance of the sex trafficking business. The Government submits the 10 police report from the raid on Singleton’s apartment, pointing out that none of the witnesses 11 interviewed by law enforcement mentioned Singleton’s use of the stolen items to facilitate sex 12 trafficking activities. See Harris Decl. Ex. B, ECF 165-1. The apartment was leased by Michels, 13 not Singleton; Michels paid for R.O.’s travel using her own credit card; photos of R.O. were found 14 on the phone seized from Michels. See id. Mr. Hinckley provides little information regarding his 15 reasons for not arguing that the burglary was related conduct, stating only that he believed that 16 “the burglary was an unrelated crime of opportunity” and that he did not recall Singleton telling 17 him anything different. See Hinckley Decl. ¶ 9. 18 Given the conflicts in the evidence, and the sparseness of the explanation provided by Mr. 19 Hinckley, the Court cannot determine on this record whether Mr. Hinckley’s performance was 20 deficient for failing to argue that the burglary sentence should be included in the offense level 21 calculation rather than the criminal history calculation. However, even assuming without deciding 22 for purposes of this motion that the burglary was related conduct and that Mr. Hinckley’s 23 performance was deficient on this point, Singleton has failed to establish resulting prejudice. See 24 Strickland, 466 U.S. at 697 (“[A] court need not determine whether counsel’s performance was 25 deficient before examining the prejudice suffered by the defendant as a result of the alleged 26 deficiencies.”). 27 For the reasons discussed above in Section VI.A.1, the sentence on the burglary offense 1 purposes of calculating Singleton’s criminal history score. Consequently, although if treated 2 separately each sentence would add 3 points to Singleton’s criminal history score, treated as a 3 single sentence they add a total of 3 points. If the sentence on the burglary offense were 4 eliminated from the criminal history calculation, the sentence on the domestic violence offense 5 would remain and would itself add the same 3 points to Singleton’s criminal history score. 6 Because Singleton’s criminal history score, and corresponding criminal history category, would 7 not have been any different had Mr. Hinckley presented and succeeded on the related conduct 8 argument, there is no “reasonable probability that, but for counsel’s unprofessional errors, the 9 result of the proceeding would have been different.” Strickland, 466 U.S. at 694. 10 c. Suspended License Offense 11 Probation attributed 1 criminal history point to Singleton’s sentence on a April 21, 2016 12 conviction for driving on a suspended license. See PSR ¶ 61. The conviction arose from a vehicle 13 stop on September 2, 2015. See id. The PSR indicates that according to the Milpitas Police 14 Department report, officers observed Singleton’s vehicle pull out of a gas station without a front 15 license plate. See id. The officers followed the vehicle and observed that he did not have a rear 16 license plate either. See id. The officers conducted a traffic stop and Singleton was found to be 17 driving on a suspended license. See id. Singleton’s passenger did not have a valid driver’s 18 license, so Singleton was cited and the vehicle was towed. See id. 19 Singleton claims that immediately prior to the September 2, 2015 vehicle stop, he and his 20 wife were driving R.O. to the Crown Plaza Hotel for a pre-arranged prostitution date. See 21 Singleton Decl. ¶ 5. As Singleton drove into the front entrance of the hotel, he noticed a police car 22 patrolling the area, directed R.O. to get out of the car quickly, and drove toward a nearby Chevron 23 gas station. See id. He was pulled over as he left the gas station. See id. Singleton claims that the 24 officers asked him if he was a pimp, asked his wife if she was a prostitute, performed an internet 25 search of his wife’s telephone number, and discovered online advertisements for his wife’s sexual 26 services. See id. According to Singleton, R.O. called him during the traffic stop, saying that she 27 was watching the stop from her hotel window. See id. 1 had dropped R.O. off at a hotel immediately before the September 2, 2015 vehicle stop. See 2 Hinckley Decl. ¶ 10. Singleton also told Mr. Hinckley that the officers questioned Singleton and 3 his wife about prostitution. See id. However, Singleton subsequently mailed a written statement 4 to Probation without informing, or consulting with, Mr. Hinckley. See id. Singleton advised 5 Probation in that letter that “[t]he only issues that I have with the P.S.I. report is that I was not on 6 probation during the instant offense,” and that he had “stopped all sex trafficking related activities 7 no later than July 29, 2015.” See id & Ex. B. In Mr. Hinckley’s view, making a related conduct 8 argument that contradicted Singleton’s written letter to Probation “would have placed Mr. 9 Singleton at risk of being found in violation of the plea agreement, and it could have triggered 10 challenges to his acceptance of responsibility, claims of obstruction, and it could have adversely 11 affected his chances of obtaining a downward variance.” See Hinckley Decl. ¶ 11. 12 As stated above, an IAC claim cannot succeed if the attorney’s conduct readily can be 13 explained as reasonable strategy. See Mendez, 2018 WL 2077278, at *2. Mr. Hinckley’s decision 14 not to make a related conduct argument under the circumstances appears to be a decision “within 15 the reasonable discretion of counsel in coordinating his overall litigation strategy.” Mejia-Mesa, 16 153 F.3d at 931. Accordingly, the Court finds that Singleton has failed to show that Mr. 17 Hinckley’s performance was deficient for failing to argue that the sentence on the suspended 18 license offense should not be included in the criminal history calculation. 19 d. Conclusion Re Related Conduct Arguments 20 In summary, the Court concludes that Singleton has not established that Mr. Hinckley’s 21 failure to make the related conduct argument discussed above provides an additional basis to grant 22 his first claim for IAC. Singleton’s § 2255 motion therefore is DENIED IN PART on his first 23 claim for IAC insofar as that claim is based on Mr. Hinckley’s failure to argue that certain 24 sentences should have been included in the offense level calculation and not the criminal history 25 calculation. 26 B. Second IAC Claim – Concession Re Post-Plea Criminal Conduct 27 In his second IAC claim, Singleton asserts that Mr. Hinckley was ineffective for conceding 1 plea. Singleton contends that he did not attempt to form a new prostitution ring, but merely sought 2 to start a legal business focused on pornography and adult entertainment. He argues that he did 3 not use the word “prostitution” during his jail calls, and that the Government and Probation 4 incorrectly interpreted those calls to be discussions about illegal conduct. Singleton points out that 5 the Court relied on the Government’s characterization of his post-plea conduct when denying his 6 request for a downward variance. Had Mr. Hinckley challenged that characterization of his 7 conduct, Singleton argues, the Court would not have had a legitimate basis to deny his request for 8 a downward variance. 9 To satisfy Strickland’s first prong with respect to this claim, Singleton must show that Mr. 10 Hinckley’s failure to challenge the Government’s characterization of his post-plea conduct “fell 11 below an objective standard of reasonableness” as measured by “prevailing professional norms.” 12 Strickland, 466 U.S. at 688. Mr. Hinckley explains in his declaration that after reviewing the 13 discovery provided on this issue, he “concluded that the government’s interpretation of the calls 14 was compelling and it was unlikely that we would be successful at challenging that interpretation 15 at sentencing.” Hinckley Decl. ¶ 12. In Mr. Hinckley’s view, “[t]he fact that Mr. Singleton, on 16 occasion, mentioned in the calls that the business would be legal appeared to be made for the 17 purpose of concealing the true nature of the business from law enforcement eavesdroppers.” Id. 18 Because Mr. Hinckley saw those efforts at concealment to be “fairly transparent as well as 19 inconsistent,” he formed the opinion that trying to convince the Court that Singleton sought to 20 pursue purely legal adult businesses would not be successful. Id. 21 Mr. Hinckley believed that engaging in a lengthy argument regarding the recorded jail calls 22 would result in the Court spending a large amount of time on a subject that would place Singleton 23 in a very poor light. See Hinckley Decl. ¶ 13. At best, the Court might be persuaded that 24 Singleton sought to exploit vulnerable women to work in the fields of pornography, stripping, and 25 escorting, which Mr. Hinckley did not think would help Singleton’s case. See id. Moreover, 26 while Mr. Hinckley received assurances from Probation that it did not intend to change its 27 recommendation of 144 months based on the jail calls, and from the Government that it would not 1 charges based on the jail calls, he perceived those assurances to be “very tenuous.” Id. ¶ 14. Mr. 2 Hinckley made a strategic decision that challenging the Government’s characterization of the jail 3 calls “would not be successful, would do more harm than good, and would create an unacceptable 4 risk that the government and/or probation would reconsider their respective positions relating to 5 the sentence they would seek (as well as creating a risk of potential new charges).” Id. ¶ 15. 6 Mr. Hinckley’s deliberate choices not to attempt what he perceived to be a losing 7 argument, and not to focus the Court’s attention on Singleton’s attempts to exploit vulnerable 8 women, “appear to be decisions within the reasonable discretion of counsel in coordinating his 9 overall litigation strategy.” Mejia-Mesa, 153 F.3d at 931. The Court therefore finds that 10 Singleton has not shown that Mr. Hinckley’s failure to challenge the Government’s 11 characterization of his jail calls constituted deficient performance. 12 Although the Court’s determination with respect to Strickland’s first prong is dispositive of 13 Singleton’s second IAC claim, on this particular claim the Court finds it appropriate to nonetheless 14 address the test’s second prong. To show prejudice under the second prong, Singleton must 15 demonstrate that there is a reasonable probability that the Court would have imposed a different 16 sentence but for Mr. Hinckley’s failure to assert that the jail calls related solely to legal conduct. 17 Singleton has not made this showing, nor could he in light of the nature of his post-plea conduct. 18 Like Mr. Hinckley, the Court finds the Government’s interpretation of the jail calls to be 19 compelling. The Court finds Singleton’s declaration statements that the jail calls related solely to 20 legal conduct to be wholly implausible. See Singleton Decl. ¶¶ 7-12. Any argument by Mr. 21 Hinckley that the jail calls related solely to legal conduct would have been considered in light of 22 the transcripts themselves, which would have guided any reasonable judge to conclude that 23 Singleton’s declaration of legality was nothing more than an ineffective ruse to contradict 24 planning for prostitution. 25 Even had Mr. Hinckley persuaded the Court that Singleton’s post-plea conduct related 26 solely to legal business enterprises, the Court would not have taken a favorable view of 27 Singleton’s efforts to create a business empire by exploiting vulnerable women recruited directly 1 prison term based on any arguments Mr. Hinckley might have presented regarding Singleton’s jail 2 || calls. Singleton therefore has failed to establish prejudice. 3 Accordingly, Singleton’s § 2255 motion is DENIED as to his IAC claim based on Mr. 4 || Hinckley’s failure to challenge the Government’s characterization of his post-plea conduct as 5 illegal. 6 V. ORDER 7 (1) Singleton’s § 2255 motion is GRANTED IN PART AND DENIED IN PART as 8 follows: 9 (a) As to the first claim for IAC based on trial counsel’s failure to object to the 10 criminal history category of V, the motion is GRANTED insofar as the 11 claim is based on Mr. Hinckley’s failure to raise application of U.S.S.G. § 12 4A1.2(a)(2), and DENIED insofar as the claim is based on Mr. Hinckley’s 5 13 failure to argue that certain sentences should have been included in the 14 offense level calculation and not the criminal history calculation. 3 15 (b) As to the second claim for IAC based on trial counsel’s failure to challenge 16 the characterization of Singleton’s post-plea conduct as illegal, the motion is DENIED. 18 (2) Singleton’s sentence is VACATED; 19 (3) Probation is DIRECTED to prepare a revised PSR consistent with this order; and 20 (4) Counsel are to MEET AND CONFER regarding a new sentencing date and to 21 contact the undersigned’s Courtroom Deputy Clerk for scheduling. 22 23 Dated: February 1, 2023

BETH LABSON FREEMAN

25 United States District Judge 26 27 28