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Keith v. United States

United States District Court, W.D. North Carolina, Asheville Division

May 23, 2014

UNITED STATES OF AMERICA, Respondent. Criminal Case No. 1:11-cr-00107-MR-DLH-2



THIS MATTER comes before the Court on an initial review of Petitioner's Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 [Doc. 1]. No response is necessary from the Government.


On December 6, 2011, Petitioner was indicted by the Grand Jury in this District on one count of possession of methamphetamine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1) (Count 1); one count of possession of a firearm by a felon, in violation of 18 U.S.C § 922(g)(1) (Count 2); and one count of possession of a firearm during and in furtherance of the drug trafficking crime charged in Count 1, in violation of 18 U.S.C. § 924(c)(1)(A) (Count 3). [Criminal Case No. 1:11-cr-00107, Doc. 11: Indictment].

Petitioner was appointed counsel and soon entered into a written plea agreement with the Government. Pursuant to this agreement, Petitioner agreed to plead guilty to Count 1 in exchange for the Government's agreement to dismiss the remaining two counts of the Indictment. [ Id., Doc. 29: Plea Agreement]. On February 22, 2012, Petitioner appeared with counsel before U.S. Magistrate Judge Dennis L. Howell for his Plea and Rule 11 hearing. After being placed under oath, Petitioner averred that he could hear and understand the questions posed by the Court, that he was not under the influence of any drugs or medications, and that he had taken no medications within the last 48 hours. Petitioner filed notice with the Court prior to the hearing that he had been treated for mental illness while incarcerated within the Mississippi Department of Corrections and had been prescribed medication although he did not provide the date of treatment. [ Id., Doc. 32: Addendum to Acceptance and Entry of Guilty Plea].

During the plea colloquy, the Court carefully reviewed the elements of Count 1 and the potential penalties that Petitioner faced upon conviction and Petitioner confirmed that he understood the charge and penalties if convicted on Count 1. Petitioner averred that he understood that he could elect to plead not guilty and require the Government to prove his guilt beyond a reasonable doubt at trial and that he was agreeing to waive his right to contest the charges and had decided to plead guilty because he was in fact guilty as charged. The Government summarized the terms of the plea agreement and Petitioner averred that he understood and agreed with those terms. Petitioner acknowledged that he was satisfied with the services of his attorney and that no one had promised him a particular sentence or anything else that was not set forth in the plea agreement. Finally, Petitioner acknowledged that no one had coerced or forced him to plead guilty. The Court accepted Petitioner's plea of guilty after finding that such plea was knowingly and voluntarily entered. [ Id., Doc. 31: Acceptance and Entry of Guilty Plea].

The U.S. Probation Office prepared a presentence report (PSR) in advance of Petitioner's sentencing hearing. The PSR noted that Petitioner qualified as a career offender pursuant to § 4B1.1 of the U.S. Sentencing Guidelines Manual (USSG) based on two prior convictions for aggravated robbery, which he sustained in Tennessee in 1994, and one conviction for conspiracy to possess with intent to distribute heroin, which he sustained in Oklahoma in 2001. [ Id., Doc. 47: PSR ¶¶ 21, 35, 36]. Based on a total offense level of 33 and a criminal history category of VI, and a statutory range of not less than 5 years and not more than 40 years' imprisonment, the probation officer calculated Petitioner's Guidelines range to be 235 to 293 months in prison. [Id. ¶ 57]. After Petitioner submitted pro se objections to the PSR, the probation officer filed a supplement to the PSR countering those objections.[1] [ Id., Doc. 50].

On March 20, 2013, Petitioner appeared with counsel for his sentencing hearing. The Court first confirmed that the answers that Petitioner provided during his Plea and Rule 11 hearing were true and that he would provide the same answers during his sentencing hearing if those same questions were then posed by the Court. Petitioner's counsel affirmed that he was satisfied that Petitioner understood the questions during the Rule 11 hearing and during the sentence hearing. Petitioner acknowledged that he intended to be bound by his guilty plea and that he was in fact guilty of the conduct charged in Count 1 of the Indictment. The Court accepted his guilty plea after finding that it was knowingly and voluntarily entered and that the Petitioner understood the charges, potential penalties and consequences of his guilty plea. The parties stipulated that the factual basis as set forth in the presentence report supported Petitioner's guilty plea and the Court entered a judgment finding Petitioner guilty.

The Court found that Petitioner's Guidelines range was 235 to 293 months' imprisonment and then granted the Government's motion for a downward departure based on Petitioner's substantial assistance under § 5K1.1 of the Guidelines which resulted in a new range of 188 to 235 months' imprisonment.

Petitioner's counsel addressed the Court and noted that Petitioner had a long criminal history and a long history of substance abuse which had contributed to his criminal pursuits. Petitioner's counsel also noted Petitioner's desire that the Court be informed that Petitioner had Hepatitis A, B, and C. Petitioner then addressed the Court and stated that he was admitting for the first time that he was a drug addict and the drugs had controlled his decision making since he was 7 or 8 years old. Petitioner noted that he had participated in a class while awaiting sentencing that helped him to admit that he has a problem with substance abuse and that he wanted to be a productive citizen upon his release from prison.

Petitioner was sentenced to 188 months' imprisonment. In pronouncing the sentence, the Court noted for the Bureau of Prisons that Petitioner had a long history of substance abuse and recommended that he be allowed to participate in treatment while incarcerated. The Court further noted that Petitioner had a history of mental health issues and recommended that he be allowed to participate in treatment while in BOP custody. [ Id., Doc. 55: Judgment in a Criminal Case]. Petitioner further was advised of his right to appeal his conviction and sentence.

Petitioner did not file a direct appeal. Instead, in May -, after his time for filing a direct appeal expired, Petitioner filed a pro se motion questioning whether he may have benefitted from a mental health evaluation prior to sentencing. [Criminal Case No. 1:11-cr-00107, Doc. 58]. Noting that Petitioner was still represented by counsel, the Court denied Petitioner's pro se effort to challenge or modify his judgment. [ Id., Doc. 60].

In March 2014, Petitioner filed the present § 2255 motion to vacate, the allegations of ...

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