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Wood v. United States

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

February 3, 2017



          Richard L. Voorhees, United States District Judge

         THIS MATTER is before the Court on consideration of Petitioner's pro se Motion to Vacate, Set Aside or Correct Sentence, which is filed pursuant to 28 U.S.C. § 2255. (Doc. No. 1). For the reasons that follow, Petitioner's § 2255 Motion to Vacate will be dismissed.

         I. BACKGROUND

         On June 19, 2013, Petitioner was indicted on one count of conspiracy to possess with intent to manufacture and distribute a mixture and substance containing a detectable amount of methamphetamine, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A) (Count 1); one count of the possession of pseudoephedrine, in violation of 21 U.S.C. §§ 841(c)(2) and 802(34)(K) (Count 2); three counts of possession of materials to produce methamphetamine and aiding and abetting the same, all in violation of 21 U.S.C. §§ 843(a)(6) and (d)(2) and 18 U.S.C. § 2 (Counts 10, 12, and 15); and three counts for maintaining a drug-involved premises and aiding and abetting the same, in violation of 21 U.S.C. §§ 856(a)(1) and 18 U.S.C. § 2 (Counts 11, 13 and 14). (5:13-cr-00053, Doc. No. 3: Bill of Indictment).

         Petitioner entered into a plea agreement with the Government, agreeing to plead guilty to Count One in exchange for the dismissal of the remaining counts in his bill of indictment. In the agreement, Petitioner acknowledged the amount of methamphetamine that was known to or reasonably foreseeable to him in the conspiracy was more than 150 grams but less 1.5 kilograms of actual methamphetamine. The parties further agreed that either party could seek a departure or variance from the calculated Guidelines range pursuant to § 5C1.1 of the U.S. Sentencing Guidelines Manual (USSG) (2014). (Id., Doc. No. 239: Plea Agreement).

         On June 19, 2014, Petitioner appeared with counsel before U.S. Magistrate Judge David Kessler for his Plea and Rule 11 hearing and he was placed under oath. The elements of Count One were explained to him along with the maximum penalties, and he averred that he understood the charge and he admitted that he was in fact guilty of the charged conduct. Petitioner also averred that he understood and agreed with the contents of his plea agreement, which included his decision to waive his right to contest his conviction or sentence on direct appeal or in a collateral proceeding, except through claims of prosecutorial misconduct and ineffective assistance of counsel. Petitioner swore that he had discussed how the Guidelines might apply to his sentence with his attorney; that he was satisfied with the services of his attorney; and that no one had promised him anything or coerced him regarding his decision to enter into the plea agreement and plead guilty. After answering these questions, Petitioner and his counsel examined the Acceptance and Entry of Guilty Plea form wherein the court had written down each of his responses to the questions posed during the hearing, and Petitioner signed the form acknowledging under oath that his answers were true. Petitioner's guilty plea was accepted after the court found that it was knowing and voluntary and his case was referred to the U.S. Probation Office for preparation of the presentence report. (Id., Doc. No. 241: Acceptance and Entry of Guilty Plea; Doc. No. 428: Tr. of Plea and Rule 11 Hr'g).

         In calculating Petitioner's Guidelines range, the probation officer began with a base offense level of 34 based upon the stipulated weight of actual methamphetamine contained in the plea agreement, and she applied a two-level enhancement because Petitioner maintained a residence for distributing methamphetamine. See USSG § 2D1.1(b)(12). A three-level enhancement was applied because Petitioner's method of producing methamphetamine created a substantial risk of harm, see id. § 2D1.1(b)(13)(C)(ii), and a further three-levels were added because Petitioner appeared to qualify as a manager or supervisor in the drug conspiracy. See USSG § 3B1.1(b).

         After a three-level reduction for acceptance of responsibility, Petitioner's Guideline range was 360 months to life imprisonment based on a total offense level of 39 and a criminal history category of VI. After examining the draft of the presentence report, Petitioner filed several objections: (1) Petitioner did not qualify as a manager or supervisor in the conspiracy; (2) Petitioner did not maintain a premises for manufacturing or distributing methamphetamine; and (3) Petitioner's method of producing methamphetamine did not create a substantial risk of harm. The probation officer concluded that each of these objections were without merit.

         On July 6, 2015, Petitioner appeared for his sentencing hearing and at the outset the Court confirmed that his guilty plea was knowing and voluntary after addressing Petitioner and reviewing the Rule 11 proceedings. The parties then stipulated there was a factual basis for the plea and the plea was accepted.[1] The parties further stipulated that the two-level enhancement for maintaining a premises in paragraph 21 of the presentence report should not apply, nor should the three-level enhancement for being a manager or supervisor in the conspiracy that was contained in paragraph 24. Petitioner withdrew his objection to the three-level enhancement for creating a substantial risk of harm during the production of methamphetamine in paragraph 22. (Id., Sentencing Tr. at 5-6). The Court accepted the parties' stipulations and with these adjustments, Petitioner's total offense level was reduced to 34 resulting in an amended Guidelines range of 262-327 months' imprisonment. After hearing from defense counsel, the Government, and Petitioner's mother and son, the Court considered the thoughtful and remorseful allocution of Petitioner and found that a departure to a total offense level of 29 was appropriate and Petitioner was sentenced to a term of 170-months' imprisonment. (Id., Doc. No. 415: Judgment; Doc. No. 416: Statement of Reasons). Petitioner's conviction and sentence were affirmed on appeal. See United States v. Wood, 649 F. App'x 311 (4th Cir. 2016) (unpublished).

         In this collateral proceeding, Petitioner raises four claims of ineffective assistance of counsel that will be examined herein.


         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. After having considered the record in this matter, the Court finds that no response is necessary from the United States. Further, the Court finds that this matter can be resolved without an evidentiary hearing. See Raines v. United States, 423 F.2d 526, 529 (4th Cir. 1970).


         The Sixth Amendment to the U.S. Constitution guarantees that in all criminal prosecutions, the accused has the right to the effective assistance of counsel to assist in his defense. U.S. Const. amend. VI. In order to prevail on a claim of ineffective assistance of counsel, a petitioner must show that: (1) “counsel's representation fell below an objective standard of reasonableness, ” and (2) the deficient performance was prejudicial to the defense. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). In measuring counsel's performance, there is “a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. . .” Id. at 689. A petitioner seeking post-conviction relief based on ineffective assistance ...

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