United States District Court, Western District of North Carolina, Statesville Division
Richard L. Voorhees United States District Judge
This matter is before the Court on Petitioner’s Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255, (Doc. No. 1), and on the Government’s Response in Opposition, (Doc. No. 7).
On May 9, 2011, undercover officers from the Huntersville Police Department and the Mooresville Police Department attempted to purchase crack cocaine from Petitioner Anthony Caldwell. (Crim. Case No. 5:12-cr-15-RLV-DCK-1, Doc. No. 17 at 3: PSR). The undercover officers purchased 0.6 grams of cocaine base, or crack cocaine, in exchange for $80.00. (Id.). Two weeks later, officers conducted a second undercover transaction in which they again purchased 0.6 grams of crack cocaine for $80.00 from Petitioner. (Id. at 4).
On April 17, 2012, Petitioner was charged in a bill of indictment with possession with intent to distribute crack cocaine, in violation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(C). (Id., Doc. No. 1: Bill of Indictment). On May 1, 2012, the Government filed an Information pursuant to 21 U.S.C. § 851, notifying Petitioner and the Court that Petitioner faced an enhanced sentence based on a conviction on February 20, 1992, in Iredell County, North Carolina, for sale/delivery of cocaine. (Id., Doc. No. 3). On August 20, 2012, Petitioner entered into a plea agreement in which he pled guilty to both counts in the indictment. (Id., Doc. No. 12: Plea Agreement). The plea agreement was amended on August 21, 2012. (Id., Doc. No. 13: Amended Plea Agreement). Petitioner acknowledged in the plea agreement that he was aware that the Court would consider the United States Sentencing Guidelines in determining the sentence; his sentence had not yet been determined by the Court and any estimate of the likely sentence was a prediction rather than a promise; the Court had the final discretion to impose any sentence up to the statutory maximum for each count; and the Court was not bound by recommendations or agreements by the United States. (Id. at 2). Additionally, as set forth in the plea agreement, Petitioner acknowledged that if he were found to be a career offender, the Government would agree to recommend a sentence in the low end of the applicable guideline range, which the parties believed to be 151 to 188 months, based on an offense level 29 and a criminal history category VI, after adjustment for acceptance of responsibility. (Id.). In the plea agreement, the Government agreed to dismiss the Section 851 Notice if the Court found Petitioner’s plea to be voluntarily and knowingly made and if Petitioner accepted the plea. (Id. at 1). In exchange for the Government’s concessions, Petitioner also waived the right to appeal or collaterally attack his conviction and sentence, with the exceptions of claims of ineffective assistance of counsel or prosecutorial misconduct. (Id. at 5).
Consistent with the plea agreement, Petitioner pled guilty before a U.S. magistrate judge, in a hearing conducted pursuant to Rule 11 of the Federal Rules of Criminal Procedure. (Id., Doc. No. 14: Acceptance & Entry of Guilty Plea). After placing Petitioner under oath, the magistrate judge confirmed that Petitioner understood the charges and applicable penalties. (Id. at 2).
Petitioner then admitted that he was, in fact, guilty of both counts in the indictment. (Id. at 4). Petitioner also confirmed that he had sufficient time to discuss any possible defenses with defense counsel and that he was satisfied with defense counsel’s services. (Id. at 4-5). Petitioner also expressly acknowledged that he was waiving the right to appeal as part of his plea agreement. (Id. at 4). At the conclusion of the hearing, the magistrate judge found that Petitioner’s plea was knowingly and voluntarily made and accepted it. (Id. at 6).
Before sentencing, the probation officer prepared a presentence investigation report. (Id., Doc. No. 17: PSR). Included in the recitation of Petitioner’s criminal history were three prior felony convictions that qualified him as a career offender under U.S.S.G. § 4B1.1-two sell or deliver cocaine charges from 1993 and a 1995 second-degree murder charge. (Id. at 5). Petitioner objected to his career offender status, relying on United States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc). (Id. at 21). In response, the Government argued that Petitioner was, in fact, a career offender based on his criminal history and that Simmons did not change his status. (Id.). The Government further recommended no change to the presentence investigation report. (Id.).
On July 8, 2013, this Court adopted the presentence investigation report in its entirety and sentenced Petitioner to 151 months of imprisonment on each count, to be served concurrently. (Id., Doc. No. 19: Judgment; Doc. No. 30 at 5; 13: Sentencing Tr.). Judgment was entered on July 11, 2013. (Id.). Petitioner appealed, but the Government subsequently filed a motion to dismiss the appeal on the ground that Petitioner waived the right to appeal in his plea agreement. The Fourth Circuit granted the Government’s motion to dismiss on December 18, 2013, and the mandate issued on January 9, 2014. (Id., Doc. Nos. 34; 35).
Petitioner placed his petition in the prison system for mailing on November 4, 2014, and it was stamp-filed in this Court on November 6, 2014. In his motion to vacate, Petitioner claims (1) that he did not knowingly, voluntarily or intelligently relinquish his rights to appeal based on counsel’s erroneous advice; (2) he is not a career offender in light of Descamps v. United States, 133 S.Ct. 2276, 2281 (2013); and (3) that his due process rights were violated because the presentence investigation report was prepared after the plea agreement had been entered, specifically contending that if the report had been prepared before the guilty plea, he would not have pled guilty under that particular plea agreement. (Id. at 4-7).
II. STANDARD OF REVIEW
Rule 4(b) of the Rules Governing Section 2255 Proceedings provides that courts are to promptly examine motions to vacate, along with “any attached exhibits, and the record of prior proceedings” in order to determine whether the petitioner is entitled to any relief on the claims set forth therein. After examining the record in this matter and the Government’s response, the Court finds that the motion to vacate can be resolved without an evidentiary hearing based on the record and governing case law. See Raines v. United States, 423 F.2d 526, 529 (4th Cir. 1970).
A. Petitioner’s Claim of Ineffective Assistance of ...