United States District Court, W.D. North Carolina, Statesville Division
RICHARD L. VOORHEES, 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. 8).
In 2009, law enforcement officials began investigating a large-scale methamphetamine conspiracy that stretched between Wilkes, Catawba, and Yadkin Counties. (Crim. Case No. 5:11-cr-73-RLV-DSC-2, Doc. No. 563 at ¶ 13: PSR). Pro se Petitioner John Sanford Johnson was identified as an organizer of a large group of individuals who were purchasing pseudoephedrine and using it to make methamphetamine. (Id.). The members who cooked methamphetamine coordinated multiple co-conspirators (also known as "smurfs") to go from pharmacy to pharmacy to purchase the pseudoephedrine needed to manufacture the methamphetamine. (Id. at ¶ 14). Law enforcement officers located at least seventeen methamphetamine laboratories that were involved in the conspiracy; each one used the dangerous "shake and bake" method of manufacturing methamphetamine. (Id. at ¶ 15).
As a result of the investigation, Petitioner was charged in a superseding indictment with conspiracy to distribute, possess with intent to distribute, and manufacture at least 500 grams of a mixture and substance containing methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), 846. (Count One); possession of pseudoephedrine while having reasonable cause to believe that it would be used to manufacture methamphetamine in violation of §§ 841(c)(2), 802(34)(K) (Count Two); possession of materials to make methamphetamine in violation of § 843(a)(6), (d)(2) and 18 U.S.C. § 2 (Count Three); possession of a firearm in furtherance of a drug trafficking offense in violation of 18 U.S.C. § 924(c) (Count Four); possession of materials to make methamphetamine in violation of 21 U.S.C. §§ 843(a)(6), (d)(2) and 18 U.S.C. § 2 (Count 6); and maintaining a drug-involved premises in violation of 21 U.S.C. § 856(a)(1) and 18 U.S.C. § 2 (Counts Eleven and Thirteen). ( Id., Doc. No. 198: First Superseding Bill of Indictment). The conspiracy in Count One and the conduct in Count Two were alleged to have occurred from January 2009 until on or about June 18, 2012. (Id. at 2). The conduct on the remaining counts was alleged to have occurred in 2010 or early 2011. (Id. at 4-9). Nineteen other people were named as co-defendants in the superseding indictment, and the total amount involved in the conspiracy was calculated at 3, 861.62 grams of pseudoephedrine, which yielded 3, 552.70 grams of methamphetamine. ( Id., Doc. No. 563 at ¶ 14).
Petitioner was found to be responsible for 500 grams, but less than 1.5 kilograms, of a methamphetamine mixture, as well as 206.16 grams of pseudoephedrine, based on pseudoephedrine logs that showed that he purchased pseudoephedrine on 94 occasions between November 2009 and April 2011. (Id. at ¶ 84). The presentence report ("PSR") detailed extensive evidence of Petitioner's involvement in obtaining and providing pseudoephedrine, teaching others how to manufacture methamphetamine, and manufacturing large quantities of methamphetamine on numerous occasions. (Id. at ¶¶ 13-84). At least twenty-six witnesses, including a number of co-conspirators, provided statements to investigators describing Petitioner's involvement in the offenses. (Id.). Petitioner was described by agents as a cook, distributor, smurfer, and leader in the conspiracy. (Id. at ¶ 84).
On February 8, 2013, Petitioner pleaded guilty without a plea agreement to all of the counts, except the firearm count (Count Four), which was dismissed without prejudice on the Government's motion. ( Id., Doc. No. 371: Acceptance and Entry of Guilty Plea; Doc. No. 388: Order). At the plea hearing, Petitioner stated under oath that he had received and discussed the indictment and any possible defenses with his attorney; that he understood the nature of the charges to which he was pleading guilty, the minimum and maximum penalties he faced, as well as the fact that he could not withdraw his plea if he received a sentence more severe than he expected; and that he was satisfied with his attorney's services. ( Id., Doc. No. 371 at ¶¶ 8-9; 16; 25; 27-29). He admitted that he was guilty of the charges. (Id. at ¶ 23).
The Probation Officer issued a PSR that calculated Petitioner's base offense level for Count One as 32 based on Petitioner being responsible for at least 500 grams, but less than 1.5 kilograms, of a methamphetamine mixture. ( Id., Doc. No. 563 at ¶ 90). Petitioner's adjusted offense level was 46, in light of a two-level adjustment for possessing a dangerous weapon; a two-level adjustment for maintaining premises for the purpose of manufacturing and distributing a controlled substance; a six-level increase because the offense created a substantial risk of harm to the life of a minor; and a four-level increase for Petitioner being an organizer or leader of the offense. (Id. at ¶¶ 91-97).
Because the offense level for Count One was the highest offense level applicable to the grouped counts, pursuant to U.S.S.G. § 3D1.3 this was the offense level used. (Id. at ¶ 122). Allowing for a three-level reduction for acceptance of responsibility, Petitioner's total offense level was calculated as 43. (Id. at ¶¶ 124-26). Based on Petitioner's criminal history category of III, the guidelines range was life imprisonment. (Id. at ¶¶ 139; 162).
Petitioner's counsel filed 32 objections to the PSR, arguing, inter alia, that Petitioner did not know and denied any statements made by seven of the people listed in the PSR as having provided evidence against him, that he had not taught people how to cook methamphetamine, and that he had not acted as a leader or organizer of more than five participants. ( Id., Doc. No. 542: Objections to PSR). Petitioner's counsel also filed a sentencing memorandum and motion for a downward variance. ( Id., Doc. No. 662: Sentencing Memo.).
At sentencing, this Court partially sustained Petitioner's objection to his role in the offense, finding that only a three-level increase for being a manager or supervisor was warranted. ( Id., Doc. No. 675 at 1: Statement of Reasons). The Court overruled his remaining objections to the PSR. (Id.). This resulted in a total offense level of 42, a criminal history category of III, and a sentencing guidelines range of 360 months to life imprisonment. (Id.). This Court then determined that a 12-level downward variance was warranted under the sentencing factors in 18 U.S.C. § 3553(a), citing the fact that the conspiracy involved adults and did not show a substantial profit, Petitioner obtained his GED while in jail, his criminal history began later in life, he had health issues and would be in his seventies by the time he was released, and the need to avoid unwarranted sentencing disparities. (Id. at 3). With this reduction, the total offense level was 30, resulting in a sentencing guidelines range of 121-51 months of imprisonment. (Id.). On January 6, 2014, this Court sentenced Petitioner to 121 months of imprisonment as to Counts One, Two, Eleven, and Thirteen, and 120 months of imprisonment as to Counts Three and Six (the statutory maximum as to these counts), with the terms to be served concurrently. ( Id., Doc. No. 674: Judgment). Judgment was entered on January 15, 2014, and Petitioner did not appeal. (Id.).
Petitioner placed the instant motion to vacate in the prison system for mailing on January 12, 2015, and it was stamp-filed in this Court on January 15, 2015. Despite having obtained a downward variance from a potential sentence of life imprisonment to 121 months, Petitioner argues that his counsel provided ineffective assistance and that this resulted in his sentence being erroneously enhanced as to the conspiracy count, Count One. See (Doc. No. 4 at 6; 18).
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 ...