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Cosby v. United States

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

February 19, 2015

UNITED STATES OF AMERICA, Respondent. Criminal No. 1:07-cr-00033-MR-DLH-3



THIS MATTER is before the Court on the Petitioner's pro se Motion to Vacate, Set Aside or Correct Sentence, filed pursuant to 28 U.S.C. § 2255 [Doc. 1]. For the reasons that follow, Petitioner's Section 2255 motion will be dismissed.


On April 3, 2007, Petitioner and others were indicted by the grand jury in this district on one count of conspiracy to distribute 50 grams or more of cocaine base, in violation of 21 U.S.C. §§ 846 and 841(a)(1). [Case No. 1:07-cr-00033, Doc. 1: Indictment]. The Government filed a Notice of intent to seek enhanced penalties, pursuant to 21 U.S.C. § 851, based on eight of the Petitioner's prior North Carolina felony drug convictions. [ Id., Doc. 95: Section 851 Notice].

On June 13, 2007, Petitioner appeared before the Magistrate Judge with counsel for her Rule 11 hearing. Petitioner pleaded guilty pursuant to a written plea agreement, admitting therein that she was responsible for at least 50 grams, but less than 150 grams of cocaine base. [ Id., Doc. 103: Plea Agreement ¶ 6]. The plea agreement informed Petitioner that she would be subject to a mandatory term of life imprisonment, if two or more of the convictions listed in the Government's Section 851 Notice were valid, and further notified her of the possibility that she might be sentenced under the Career Offender provisions of the Guidelines. [ Id., Doc. 103: Plea Agreement ¶¶ 3, 6(d)]. The terms of the plea agreement also stated that the Government, in its sole discretion, could file a motion for a downward departure pursuant to U.S.S.G. § 5K1.1 and 18 U.S.C. § 3553(e), if the Government determined that Petitioner had provided substantial assistance in the investigation of others. [ Id., ¶ 23]. The Magistrate Judge found the Petitioner's plea to be knowing and voluntary and accepted the plea. [ Id., Doc. 105: Acceptance and Entry of Guilty Plea].

Following Petitioner's guilty plea hearing, the Probation Office prepared a presentence investigation report (PSR) in advance of Petitioner's sentencing hearing. Using the 2006 version of the Guidelines Manual, the Probation Office calculated Petitioner's Base Offense Level to be level 32, pursuant to § 2D1.1, based upon the stipulated drug amounts in the plea agreement. [ Id., Doc. 488, PSR ¶ 19]. Petitioner's Base Offense Level, however, was increased to level 37, pursuant to § 4B1.1, as Petitioner met the qualifications for Career Offender status. [ Id., ¶ 25]. After a three-level reduction for acceptance of responsibility pursuant to § 3E1.1, Petitioner's Total Offense Level became level 34. [ Id., ¶¶ 26, 27].

The PSR detailed Petitioner's extensive criminal history, the effect of which resulted in the attribution of 56 Criminal History Points placing Petitioner in Category VI.[1] [ Id., ¶ 73]. A Total Offense Level of 34 together with a Criminal History Category VI produces a Guideline range calling for imprisonment between 262 months and 327 months. Because of her prior convictions reflected in the § 851 Notice, however, Petitioner, faced a mandatory statutory term of life imprisonment, which thus became her Guideline sentence pursuant to § 5G1.1(b). [Id. at ¶¶ 111-112].

Prior to Petitioner's sentencing hearing, the Government filed a motion for downward departure pursuant to U.S.S.G. § 5K1.1 and 18 U.S.C. § 3553(e), stating that Petitioner had provided substantial assistance to the Government in the investigation and prosecution of others. [ Id., Doc. 176]. At Petitioner's sentencing hearing, the Court found that the Guidelines were properly calculated and that Petitioner qualified as a Career Offender. Next, the Court concluded that the Government's motion for departure should be granted. The Court sentenced Petitioner a term of 168 months' imprisonment, the low end of the newly calculated range of 168 to 210 months that was based on a 4-level downward departure.[2] [ Id., Doc. 185: Judgment in a Criminal Case]. Petitioner did not appeal.


Pursuant to Rule 4(b) of the Rules Governing Section 2255 Proceedings, sentencing courts are directed to promptly examine motions to vacate along with "any attached exhibits and the record of prior proceedings" in order to determine whether a petitioner is entitled to any relief. The Court has considered the record and applicable authority in this matter, and concludes that this matter can be resolved without an evidentiary hearing. Raines v. United States, 423 F.2d 526, 529 (4th Cir. 1970).


The gist of Petitioner's argument is that she is entitled to relief because four of her past North Carolina convictions, used to establish her Career Offender status and to support the Government's Section 851 Notice, are insufficient to support those enhancements as a result of the Fourth Circuit's en banc decision in United States v. Simmons, 649 F.3d 237 (4th Cir. 2011). In Simmons, the Court of Appeals reexamined when a conviction under North Carolina's Structured Sentencing Act constitutes a felony to support a Career Offender designation.[3] Overruling prior precedent, the Court determined that a North Carolina conviction is not a felony (i.e. "a crime punishable by imprisonment for a term exceeding one year") unless that specific defendant was exposed to a potential for being incarcerated for a term of more than one year. Petitioner challenges her four previous state drug convictions identified in paragraphs 55 through 58 of the PSR for which she received sentences of 8 to 10 months imprisonment. [1:14-cv-00086, Doc. 1 at 3]. Petitioner asserts that her sentence in these four cases could not have exceeded twelve months, and therefore they were incorrectly counted as felonies for the purpose of determining her sentence, and thus her sentence was imposed in violation of law and she is entitled to relief. Petitioner, however, is entitled to no relief because her petition is untimely and her argument is without merit.

Petitioner's judgment of conviction was filed on November 7, 2007. This judgment became final ten days later when Petitioner filed no direct appeal. Petitioner had one year from the date on which her judgment of conviction became final to file her § 2255 motion. 28 U.S.C. § 2255(f)(1). Her petition is not saved from that limitation just because if entails the application of Simmons to a determination of her Career Offender status. Whiteside v. United States, ___ F.3d ___, No. 13-7152 (4th Cir. 2014) (en banc). Petitioner did not file her § 2255 motion until April 2014, some six and a half years after her criminal judgment became final. Therefore, her Petition is untimely and this action must be dismissed.

Petitioner's argument also fails on the merits. The type and number of Petitioner's past felony convictions both qualified her as a Career Offender under the Guidelines and subjected her to a mandatory life sentence under Title 21 of the United States Code. When the Government filed its downward departure motion, 18 U.S.C. § 3553(e) conferred upon the Court the authority to exercise its discretion to reduce the Petitioner's statutory minimum sentence consistent with U.S.S.G. § 5K1.1 and the Government's recommendation that was based on the nature and quality of the Petitioner's assistance. See United States v. Pillow, 191 F.3d 403, 407 (4th Cir. 1999), cert. denied, 528 U.S. 1177 (2000) (section 3553(e) allows for a departure from, not the removal of, a statutorily required minimum sentence). When the Court granted the Government's departure motion, the Court reduced Petitioner's mandatory minimum sentence of life down to 168 months' imprisonment. The Court's 168 month sentence was also a sentence at the low end of a Guideline range 4 levels below Petitioner's otherwise applicable Career Offender range. Consequently, it is necessary for the Court to evaluate what effect, ...

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