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Pagan v. United States

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

September 1, 2017




         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). Also pending is Petitioner's Motion to Appoint Counsel, (Doc. No. 4).

         I. BACKGROUND

         Pro se 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).

         A grand 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 Superseding Indictment).

         Petitioner 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;[1] 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 ¶¶ 18-19).

         As part 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.).

         At the 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).

         The 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).

         Petitioner 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).

         Petitioner 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).

         The 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).

         On 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.

         Petitioner 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). ...

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