United States District Court, W.D. North Carolina, Charlotte Division
J. CONRAD, JR. UNITED STATES DISTRICT JUDGE
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). Also pending is
Petitioner's Motion to Appoint Counsel, (Doc. No. 4).
Petitioner Lance R. Pagan was part of a conspiracy to traffic
cocaine and cocaine base in Gaston County, North Carolina.
(Crim. Case No. 3:13cr258-RJC-8, Doc. No. 292 at ¶ 8:
PSR). A co-conspirator reported that Petitioner had purchased
“8-balls” to quarter ounces of crack cocaine
every other week from 2002 to 2010. (Id. at ¶
13). A different co-defendant told law enforcement officers
that he sold cocaine to Petitioner on more than three
occasions, including 1.5 ounces of crack cocaine and 3 ounces
of crack cocaine. (Id. at ¶ 14). This
co-defendant also reported that he traveled with Petitioner
twice a week, every week, from late 2012 or early 2013, until
September 2013, to buy cocaine in Charlotte, North Carolina.
(Id. at ¶ 15). Petitioner sometimes carried a
revolver with him for protection, and two firearms were
recovered during a search of Petitioner's residence.
(Id. at ¶¶ 10, 14).
jury indicted Petitioner for conspiring to distribute and to
possess with intent to distribute 280 grams or more of
cocaine base and five kilograms or more of cocaine, in
violation of 21 U.S.C. §§ 841(b)(1)(A), 846.
(Id., Doc. No. 3: Indictment). The indictment
alleged that the conspiracy began in 2002 and lasted until
September 2013. (Id.). The Government filed an
Information pursuant to 21 U.S.C. § 851, noticing
Petitioner's prior North Carolina felony drug conviction.
(Id., Doc. No. 30: Information). The grand jury
later issued a superseding indictment that also charged
Petitioner with possessing a firearm in furtherance of a
drug-trafficking offense and aiding and abetting the same, in
violation of 18 U.S.C. §§ 924(c), 2, and possession
of a firearm by a convicted felon, in violation of 18 U.S.C.
§ 922(g)(1). (Id., Doc. No. 92: First
entered into a plea agreement, agreeing to plead guilty to
the conspiracy charge, in exchange for the dismissal of the
remaining counts against him. (Id., Doc. No. 162 at
¶¶ 1-2: Plea Agreement). The Government also agreed
to dismiss the § 851 enhancement at the time of
sentencing, which would reduce Petitioner's statutory
sentencing range from ten years to life, to five to forty
years in prison. (Id. at ¶ 4). The parties
recommended to the Court that Petitioner was responsible for
between 2, 000 and 3, 500 grams of cocaine, plus
approximately 42 grams of cocaine base for a base offense
level of 28; that he should receive a two-level
enhancement for possessing a firearm; and that he should
receive a three-level reduction for acceptance of
responsibility. (Id. at ¶ 7). Petitioner also
agreed to waive the right to contest his conviction or
sentence on direct appeal or in any post-conviction
proceeding, except as to claims of ineffective assistance of
counsel or prosecutorial misconduct. (Id. at
of the factual basis, Petitioner admitted that he engaged in
a conspiracy to distribute and to possess with intent to
distribute cocaine and cocaine base from 2002 through 2013.
(Id., Doc. No. 163: Factual Basis). He also admitted
that on May 15 and 16 of 2013, law enforcement officers had
conducted controlled buys from Petitioner using a cooperating
defendant and a confidential informant; that witnesses had
provided historical drug amounts relating to Petitioner of
more than 2, 000, but less than 3, 500, grams of cocaine; and
that law enforcement officers had seized a firearm from
Petitioner's residence. (Id.).
plea hearing, Petitioner testified that he understood the
nature of the charges and the applicable penalties, as well
as the fact that he could not withdraw his guilty plea even
if he received a sentence more severe than he expected.
(Id., Doc. No. 332 at 3-5: Plea Tr.). Petitioner
admitted that he was guilty of Count One. (Id. at
7). The Government summarized the terms of the plea
agreement, including the appellate and post-conviction
waivers. (Id. at 7-10). The magistrate judge
specifically questioned Petitioner regarding the waivers, and
Petitioner stated that he understood that he was waiving
these rights. (Id. at 10). Petitioner also agreed
that he had read and agreed with the factual basis, that
other than the plea agreement no other promises had been made
to induce him to plead guilty, and that he had had sufficient
time to discuss any defenses with his attorney and was
satisfied with his attorney's services. (Id. at
11). The magistrate judge accepted Petitioner's guilty
plea, finding that it was knowingly and voluntarily made.
(Id. at 12).
probation officer prepared a presentence report, recommending
that Petitioner's offense level was 30, based on the
amount of cocaine involved in the offense; that he receive a
two-level increase for possessing a firearm; and that he
receive a three-level reduction for acceptance of
responsibility, resulting in a total offense level of 29.
(Id., Doc. No. 292 at ¶¶ 21- 22, 28-30).
Based on convictions dating back to 1989, the probation
officer found that Petitioner had 17 criminal history points,
which placed him in criminal history category VI.
(Id. at ¶ 59). The applicable guidelines
sentencing range was 151 to 188 months of imprisonment.
(Id. at ¶ 132).
objected to the PSR, arguing that, based on the factual basis
and plea agreement, his base offense level should be 26,
which would reduce his total offense level to 25.
(Id., Doc. No. 283 at 1-2). He argued that, because
his involvement in the instant offense began in late 2012, he
should not receive criminal history points for his prior
convictions for possession of cocaine, two counts of
communicating threats, and three counts of assault on a
female because the convictions and sentences in those cases
were too old to receive points under U.S.S.G. §
4A1.2(e). (Id. at 2-4).
also asserted that he should receive only six criminal
history points, which would place him in criminal history
category III, and change the applicable guidelines range to
70-87 months of imprisonment. (Id. at 4). Petitioner
filed a sentencing memorandum, arguing that he was a
low-level participant in the conspiracy and that his dealings
were to support his own drug habit. (Id., Doc. No.
307 at 3). He also contended that he had been arrested on a
murder charge on October 7, 2001, and had remained in Gaston
County jail until July 5, 2002, when the charge was
dismissed, and that he was similarly held from September 27,
2003, until April 27, 2004, on an assault charge that was
dismissed. (Id. at 3-4). He did not dispute that he
sold crack cocaine in late 2012 and into 2013. (Id.
at 4). Petitioner argued that a 70-month sentence was
appropriate. (Id. at 5).
Government argued that the evidence, including the statement
of a cooperating defendant and the factual basis, supported
finding that Petitioner's involvement in the conspiracy
began in 2002. (Id., Doc. No. 306). At sentencing,
defense counsel again objected to the co-conspirator's
statement that placed Petitioner in the conspiracy going back
to 2002. (Id., Doc. No. 333 at 5-6: Sent. Tr.).
Counsel asserted that this added eleven criminal history
points to Petitioner's criminal history score and argued
that the factual basis was not a stipulation to
Petitioner's being a member of the conspiracy for this
entire time period. (Id. at 6-9). This Court granted
Petitioner's objection and found that his criminal
history category should be III, instead of VI. (Id.
at 15-16). Based on a post-plea amendment to the Guidelines,
the Court also found that the total offense level was 25.
(Id. at 26). This Court sentenced Petitioner to 84
months of imprisonment, which was within the revised
Guidelines range of 70 to 87 months. (Id. at 30).
appeal, the Fourth Circuit held that Petitioner's guilty
plea was knowingly and voluntarily made, that there was no
reversible error in calculating the guidelines range, and
that Petitioner's sentence was substantively reasonable.
United States v. Pagan, 643 F. App'x 295, 296-97
(4th Cir. 2016). The Fourth Circuit also rejected
Petitioner's assertion of prosecutorial misconduct,
declined to review his claim of ineffective assistance of
counsel, and determined that there were no meritorious issues
for appeal. Id. at 297.
filed the pending motion to vacate on March 8, 2017.
Liberally construing Petitioner's allegations, he asserts
five claims for relief: (1) he was not properly convicted of
conspiracy; (2) he should have had the opportunity to review
and comment on the changes to the indictment; (3) he should
have received a two-level reduction for having a minor role
in the offense; (4) he should be re-sentenced to a two-level
reduction under “the new drug law”; and (5) his
attorney provided ineffective assistance by not bringing to
the Court's attention the fact that the co-conspirator
stated that Petitioner began participating in the conspiracy
at a time when Petitioner was incarcerated for another
offense and by informing Petitioner that he was facing a
sentence of 25 years to life. (Doc. No. 1 at 5, 7-8, 13). ...