DEJUAN THOMAS 

Plaintiffs, 

v. 

UNITED STATES 

Defendant. 

MOSMAN,J., 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

PORTLAND DIVISION 

No. 3:14-cr-00214 ~ 

OPINION AND ORDER 

This matter comes before me on PlaintiffDejuan Thomas's prose motion to correct his 

sentence under 28 U.S.C. § 2255. [151]. For the reasons below, I DENY Mr. Thomas's motion. 

BACKGROUND 

On May 5, 2016, Mr. Thomas pleaded guilty to tampering with a witness in violation of 

18 U.S.C. § l 512(b )(1 ), [133], after a federal grand jury indicted Mr. Thomas on charges of sex 

trafficking by force and tampering with a witness. [69]. 

The Presentencing Report ("PSR") calculated a base offense level of 28 and a total 

offense level of 26. [158] at 5. The PSR found that the advisory guideline range was between 78 

and 97 months. [138] at 5. The parties agreed to the same offense levels and advisory guideline 

range in the plea agreement. [135]. After pleading guilty but prior to sentencing, Mr. Thomas, 

through his counsel, Tyl Bakker, argued a base offense level of28 was incorrect because a cross 

reference from USSG § 2Jl.2(c)(l) (obstruction of justice) to§ 2X3.l (accessory after the fact) 

did not apply. [146] at 2-3. 

1 - OPINION AND ORDER 
At sentencing, I concluded the cross reference applied and Mr. Thomas's total offense 

level was 26. [150] at 4-5; [149] at 1. Accordingly, I sentenced Mr. Thomas to 90-months 

imprisonment, 3-years supervised release, and a $100 special assessment fee. [148]. 

Mr. Thomas now moves to correct his sentence. He makes 4 claims for ineffective 

assistance of counsel: 

1. Mr. Bakker relayed inaccurate information that induced Mr. Thomas to enter a 

plea agreement. 

2. Mr. Bakker failed to adequately investigate legal issues concerning Mr. Thomas's 

plea. 

3. Mr. Bakker failed to accurately inform Mr. Thomas about the consequences of 

pleading guilty. 

4. Mr. Bakker failed to object to my finding that Mr. Thomas's base offense level 

was 28. 

[151] at 4-7. The government responded to that motion. [158]. Mr. Thomas replied. [159]. In his 

addendum, Mr. Thomas also argues that he is serving an illegal sentence. [164]. However, as part 

of the plea agreement, Mr. Thomas waived his right to appeal or collaterally attack his own 

conviction or sentence under 28 U.S.C. § 2255, except for claims regarding ineffective assistance 

of counsel. [135] at 3. 

LEGAL STANDARD 

I. Ineffective Assistance of Counsel 

To prevail on a claim challenging the validity of a guilty plea based on counsel's 

performance, a petitioner must demonstrate (1) "counsel's representation fell below an objective 

standard ofreasonableness," and (2) "a reasonable probability that, but for counsel's en-ors, 

[petitioner] would not have pleaded guilty and would have insisted on going to trial." Hill v. 

Lockhart, 474 U.S. 52, 57-59 (1985). Satisfying the second prong will "depend in large part on a 

2 - OPINION AND ORDER 
prediction [of] whether the evidence likely would have changed the outcome of a trial." Id. at 59. 

But if a petitioner fails to satisfy either prong, his or her claim necessarily fails. Strickland v. 

Washington, 466 U.S. 668, 700 (1984). 

II. Evidentiary Hearing 

When a petitioner makes a 28 U.S.C. § 2255 motion, he or she is entitled to an 

evidentiary hearing "[u]nless the motion and the files and records of the case conclusively show 

that the prisoner is entitled to no relief." United States v. Leonti, 326 F.3d 1111, 1116 (9th Cir. 

2003) (quoting 28 U.S.C. § 2255(b)). 

III. Certificate of Appealability 

"In a 28 U.S.C. § 2255 proceeding, the applicant cannot take an appeal unless a ... 

district judge issues a certificate of appealability under 28 U.S.C. § 2253( c )."Fed. R. App. P. 22. 

§ 2253( c) requires a petitioner to demonstrate "a substantial showing of the denial of a 

constitutional right," meaning "that reasonable jurists could debate whether (or, for that matter, 

agree that) the petition should have been resolved in a different manner or that the issues 

presented were adequate to deserve encouragement to proceed further." Miller-El v. Cockrell, 

537 U.S. 322, 336 (2003) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). 

DISCUSSION 

I. Ineffective Assistance of Counsel 

Each of Mr. Thomas's claims rest on a single assertion: Mr. Thomas's base offense level 

was 14 (for obstructing justice), as opposed to 28 (for obstructing the prosecution of sex 

trafficking) because he was not convicted of sex trafficking by force. [151] at 4-7. However, as I 

discuss below, Mr. Thomas's base offense level is 28. For that reason, each of Mr. Thomas's 

claims fail. 

3 - OPINION AND ORDER 
When a person obstructs the prosecution of a criminal offense, "the offense level for 

obstruction is driven by the offense level of the crime whose prosecution was obstructed." 

United States v. Arias, 253 F.3d 453, 454-55 (9th Cir. 2001). The Sentencing Guidelines achieve 

this result through a cross reference from§ 2Jl.2(c) to§ 2X3.l. § 2Jl.2(c) states that "[i]fthe 

offense involved obstructing the investigation or prosecution of a criminal offense, apply § 

2X3.l (Accessory After the Fact) in respect to that criminal offense."§ 2X3.l(a)(l) provides that 

the base offense level for obstructing the prosecution of a crime is "6 levels lower than the 

offense level for the underlying offense." 

The cross reference applies "without regard to whether the underlying offense whose 

prosecution was obstructed was or is provable." Arias, 253 F.3d at 461. In fact, "proof of the 

underlying offense is not material, because the point of the cross reference is to punish more 

severely (and to provide a greater disincentive for) perjury in, and obstruction of, prosecutions 

with respect to more serious crimes." Id. at 459. As the Sixth Circuit put it, obstructing a more 

serious crime warrants more punishment than obstructing a less serious crime because 

"[s]omeone who obstructs a murder investigation risks severe punishment, even if he knows the 

suspect is innocent, because a murder investigation itself is a very serious thing and its 

obstruction cannot be tolerated." United States v. Greer, 872 F.3d 790, 798 (6th Cir. 2017). 

Here, Mr. Thomas presently admits, and pleaded guilty to, obstructing the prosecution of 

sex trafficking by force. [159] at 16; [134] at 6-7. Sex trafficking by force carries a base offense 

level of34. USSG § 2Gl.l(a)(l). Because Mr. Thomas obstructed the prosecution of sex 

trafficking by force, the cross reference from§ 2Jl.2(c) to§ 2X3.1applies.§2X3.l(a)(l) calls 

for Mr. Thomas's base offense level to be 6 levels lower than 34-even ifhe did not commit sex 

trafficking. Accordingly, Mr. Thomas's base offense level is 28. 

4 - OPINION AND ORDER 
A. Mr. Bakker's representation did not fall below an objective standard of 

reasonableness. 

i. Mr. Bakker did not relay inaccurate information that induced Mr. 

Thomas to enter a plea agreement. 

Mr. Thomas contends Mr. Bakker misled him into believing that a base offense level of 

28 applied when really-had Mr. Thomas gone to trial, and been found not guilty of sex 

trafficking-a base offense level of 14 could have applied. [151] at 4; [164] at 3. Mr. Thomas 

overlooks the fact that the cross reference applies "without regard to whether the underlying 

offense whose prosecution was obstructed was or is provable." Arias, 253 F.3d at 461. Because 

Mr. Thomas's base offense level is 28, Mr. Bakker did not mislead Mr. Thomas. Accordingly, I 

find that Mr. Bakker's performance did not fall below an objective standard of reasonableness. 

ii. Mr. Bakker did not fail to investigate adequately legal issues concerning 

Mr. Thomas's plea. 

Mr. Thomas contends that if Mr. Bakker investigated the sentencing guidelines 

adequately, then Mr. Bakker would have learned that the base offense level for the underlying 

offense applies only when a defendant is actually convicted of that offense. [151] at 5. Mr. 

Thomas's argument fails. The law is clear: the cmrect base offense level for obstructing the 

prosecution of a crime is 6 levels lower than the offense level for the underlying offense. 

§ 2X3.l(a)(l). The record is also clear: as Mr. Bakker's declaration demonstrates, Mr. Bakker 

researched whether the cross reference applied, correctly concluded that it did, and met with Mr. 

Thomas numerous times to go over that finding. [158-4] at iflO, ifl 1, ifl6, ifl8, and ifif22-24. 

Accordingly, I find that Mr. Bakker's performance did not fall below an objective standard of 

reasonableness. 

iii. Mr. Bakker did not fail to inform Mr. Thomas about the consequences of 

pleading guilty. 

5 - OPINION AND ORDER 
Mr. Thomas contends that Mr. Bakker failed to inform Mr. Thomas adequately that he 

was giving up a base offense level of 14, and agreeing to a total offense level of 26 in exchange 

for dismissing the counts of sex trafficking by force and tampering with a witness. [151] at 6-7. 

First, the law contradicts Mr. Thomas's contention. Mr. Thomas's base offense level for 

obstructing the prosecution of sex trafficking by force is 28-regardless of whether he went to 

trial and was found not guilty of sex trafficking. Second, the record contradicts Mr. Thomas's 

contention. Mr. Thomas signed a plea petition that stated Mr. Bakker reviewed the sentencing 

guidelines with him; Mr. Bakker signed a certificate of counsel, which corroborated Mr. 

Thomas's plea petition. [158-4] at if 13; [158-4] at 8. Moreover, Mr. Thomas signed a plea 

agreement acknowledging that the base offense level would be 28 with a 2 point acceptance 

reduction for a total offense level of 26. [135]. Accordingly, I find that Mr. Bakker's 

performance did not fall below an objective standard ofreasonableness. 

iv. Mr. Bakker did not need to object to my finding that the cross reference 

applied. 

Mr. Thomas contends that Mr. Bakker should have objected after I found the cross 

reference applied. [151] at 8. Mr. Bakker is not required to object to a correct finding. 1 See Juan 

H v. Allen, 408 F.3d 1262, 1273 (9th Cir. 2005) ("[T]rial counsel cannot have been ineffective 

for failing to raise a meritless objection."). Accordingly, I find that Mr. Bakker's performance 

did not fall below an objective standard of reasonableness. 

II. Evidentiary Hearing 

Mr. Thomas also requests an evidentiary hearing. [151] at 12. As explained above, the 

cross reference applies to Mr. Thomas's case, regardless of whether the underlying offense is 

true. In other words, the motion and the files and records of the case conclusively show that Mr. 

1 Further, before sentencing, Mr. Bakker wrote a sentencing memorandum, arguing the cross reference should not 

apply. [146] at 2-3. 

6 - OPINION AND ORDER 
Thomas is entitled to no relief. See Leonti, 326 F.3d at 1116. Accordingly, I deny Mr. Thomas's 

request for an evidentiary hearing. 

III. Certificate of Appealability 

Mr. Thomas also requests a Certificate of Appealability on all grounds presented. [151] at 

12. Ultimately, no reasonable jurists could debate whether Mr. Thomas's petition should have 

been resolved in a different manner. Everyone involved in this case including myself, [150] at 4-

5, Mr. Bakker, [150] at 5, and the government, [158], agree that the cross reference applied. In 

fact, as the Sixth Circuit pointed out, "every other Circuit to consider [the issue] has also held 

that the State need not prove that the defendant committed the underlying crime." Greer, 872 

F.3d at 798 (citing United States v. Olsen, 519 F.3d 1096, 1105-06 (10th Cir. 2008); Arias, 253 

F.3d at 461; United States v. Russell, 234 F.3d 404, 409-10 (8th Cir. 2000); United States v. 

Suleiman, 208 F.3d 32, 38 (2d Cir. 2000); United States v. Dickerson, 114 F.3d 464, 468 (4th 

Cir. 1997); United States v. Martinez, 106 F.3d 620, 622 (5th Cir. 1997); United States v. Queen, 

86 F.3d 180, 182-83 (I Ith Cir. 1996)). Accordingly, I deny Mr. Thomas's request because he 

has not made a substantial showing of the denial of a constitutional right. 

CONCLUSION 

For the reasons given above, I DENY Mr. Thomas's motion to correct his sentence. I also 

DENY Mr. Thomas's request for an evidentiary hearing and a certificate of appealability. 

IT IS SO ORDERED. 

DATED this \ '7/day of April, 2018. 

7 - OPINION AND ORDER 

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