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United States v. Balkind

United States District Court, D. South Carolina, Spartanburg Division

September 17, 2019

UNITED STATES,
v.
JOSHUA A. BALKIND, Defendant.

          ORDER AND OPINION

         Defendant Joshua A. Balkind is a prisoner currently serving a sentence of eighty-seven (87) months in the Bureau of Prisons. (ECF No. 338.)

         This matter is before the court on Balkind’s Motion to Vacate, Set Aside, or Correct a Sentence under 28 U.S.C. § 2255. (ECF No. 363.) The United States of America (the “Government”) opposes Balkind’s Motion and moves for summary judgment on the merits. (ECF No. 367.) For the reasons set forth below, the court DENIES Balkind’s Motion to Vacate and GRANTS the Government’s Motion for Summary Judgment.

         I. RELEVANT BACKGROUND TO PENDING MOTIONS

         On November 8, 2011, the Grand Jury named Balkind in a Superseding Indictment containing the following four (4) counts:

(1) That beginning at a date unknown, but beginning at least in or around January 2011, and continuing thereafter, up to and including the date of this Superseding Indictment, in the District of South Carolina, the Defendants, JOSHUA A. BALKIND, MARCI L. BALKIND, KENNETH CLARK, ANNA L. HUCKEBA, RYAN E. SARQUIST, and DAVID R. RAINES, JR., knowingly and intentionally did combine, conspire, agree and have tacit understanding with each other and others, both known and unknown to the grand jury, knowingly, intentionally, and unlawfully to distribute and to possess with intent to distribute Oxycodone, a Schedule II controlled substance, in violation of Title 21, United States Code, Sections 84l(a)(1) and 84l(b)(1)(C). All in violation of Title 21, United States Code, Section 846.
(2) That on or about August 30, 2011, in the District of South Carolina, the Defendant, JOSHUA A. BALKIND, having been convicted of a crime punishable by imprisonment for a term exceeding one year, knowingly did possess in and affecting commerce, a firearm and ammunition, that is, a Ruger 9mm caliber pistol and 9mm ammunition, all of which had been shipped and transported in interstate and foreign commerce. In violation of Title 18, United States Code, Sections 922(g)(I), 924(a)(2) and 924(e).
(3) That on or about August 30, 2011, in the District of South Carolina, the Defendant, JOSHUA A. BALKIND, knowingly used and carried a firearm during and in relation to, and did possess a firearm in furtherance of, a drug trafficking crime, which is prosecutable in a court of the United States. In violation of Title 18, United States Code, Section 924(c)(1).
(4) That on or about August 30, 2011, in the District of South Carolina, the Defendant, JOSHUA A. BALKIND, knowingly did possess a firearm, that is, a 9mm caliber pistol, which has had the importer’s or manufacturer’s serial number removed, obliterated, and altered and has, at any time, been shipped or transported in interstate commerce. In violation of Title 18, United States Code, Section 922(k).

(ECF No. 62 at 1–2.) On January 31, 2012, Balkind signed a written plea agreement (ECF No. 187) agreeing to plead guilty to conspiracy, Count 1 of the Superseding Indictment. On January 31, 2012, the court accepted Balkind’s change of plea (ECF Nos. 186, 187) and sentenced him to two hundred forty (240) months imprisonment on June 22, 2012. (ECF Nos. 285, 287.) The court entered the Judgment on July 2, 2012. (ECF No. 287.) Balkind did not file an appeal.

         On July 17, 2013, because of Balkind’s substantial assistance, the Government moved to reduce Balkind’s sentence pursuant to Rule 35 of the Federal Rules of Criminal Procedure. (ECF No. 301.) As a result, on October 16, 2013, the court reduced Balkind’s sentence to one hundred (100) months. (ECF No. 317.) The court entered an Amended Judgment on October 16, 2013. (Id.) Balkind did not file an appeal.

         On December 1, 2015, Balkind filed a Petition for Reduction of Sentence Pursuant to 18 U.S.C. § 3852(c)(2) for Amendment to the Sentencing Guidelines “[b]ased upon the recent amendment to the Sentencing Guidelines, which reduced the drug quantity tables by two-points, . . . .” (ECF No. 328.) Upon consideration of Balkind’s Motion, the United States Probation Office (“USPO”) filed a Sentence Reduction Report with the court on December 11, 2015, agreeing that Balkind was entitled to a sentence reduction because “the advisory guideline range applicable to the defendant was lowered as a result of the retroactive application of the 2014 drug guidelines.” (ECF No. 333 at 1.) As a result, on January 12, 2016, the court granted Balkind’s Motion and reduced his sentence to eighty-seven (87) months. (ECF No. 338.)

         On September 2, 2016, Balkind filed the instant Motion to Vacate pursuant to 28 U.S.C. § 2255 (ECF No. 363) presenting the following grounds for relief:

Ground One: Ineffective Assistance of Counsel. I asked my attorney, Mr. Plowden, if the enhancement would affect me later in my sentence. He advised me to plead guilty and the enhancement would not affect me. I ...

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