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).
2011 to the end of 2014, Petitioner was a member of a
cocaine-trafficking conspiracy that distributed large
quantities of cocaine in Gaston County, North Carolina, and
elsewhere. (Crim. Case No. 3:15-cr-20-RJC-2, Doc. No. 99 at
¶ 7: PSR). Petitioner's brother, Jose, was a leader
of the conspiracy. See (Id. at ¶¶
8, 29). During the conspiracy, Jose directed Petitioner to
speak with a source about future deliveries of multiple
kilogram quantities of cocaine. (Id. at ¶ 18).
As part of the conspiracy, Petitioner delivered large
quantities of cocaine, drove a “cover car” to
protect the drug deliveries from law enforcement or theft,
collected drug proceeds, and met with the sources of supply.
(Id. ¶¶ 19, 2123, 26-27, 31, 45, 49-53).
Members of the conspiracy carried firearms for protection
while working. (Id. at ¶ 59). When Petitioner
was arrested, law enforcement officers found four firearms at
his residence. (Id. at ¶ 25).
jury indicted Petitioner, charging him with conspiracy to
distribute and to possess with intent to distribute five
kilograms or more of cocaine in violation of 21 U.S.C.
§§ 841(b)(1)(A), 846 (Count One); possession with
intent to distribute 500 kilograms or more of cocaine, and
aiding and abetting the same, in violation of 21 U.S.C.
§ 841(b)(1)(B) and 18 U.S.C. § 2 (Count Four); and
aiding and abetting possession of a firearm in furtherance of
a drug-trafficking offense, in violation of 18 U.S.C.
§§ 924(c), 2 (Count Six). (Id., Doc. No.
agreed to plead guilty to Count One of the Indictment.
(Id., Doc. No. 65 at ¶ 1: Plea Agrmt.). As part
of Petitioner's plea agreement, the Government agreed to
dismiss the remaining counts against him, and the parties
agreed to recommend that the Court find that the amount of
cocaine reasonably foreseeable to Petitioner was more than 50
kilograms, but less than 150 kilograms; that Petitioner
should receive a three-level reduction for acceptance of
responsibility; and that the Government would not oppose a
sentence at the bottom of the applicable guidelines range.
(Id. at ¶ 7). The parties reserved their rights
to advocate whether Petitioner should receive a two-level
enhancement under U.S.S.G. § 2D1.1(b)(1), for possessing
a dangerous weapon in connection with the offense, as well as
to argue regarding other adjustments, departures, or
variances. (Id.). Petitioner agreed to waive the
right to challenge his conviction and sentence on direct
appeal or in any post-conviction proceeding, except as to
claims for ineffective assistance of counsel or prosecutorial
misconduct. (Id. at ¶¶ 18-19). The plea
agreement provided that there were no other
“agreements, representations, or understandings between
the parties in this case.” (Id. at ¶ 28).
plea hearing, Petitioner affirmed that he understood the
charges against him and the plea agreement, including the
parties' reservation of their rights to argue whether he
should receive a two-level weapon enhancement under U.S.S.G.
§ 2D1.1(b)(1), as well as the waiver of his right to
challenge his conviction or sentence on direct appeal or in
any post-conviction proceeding. (Id., Doc. No. 144
at 5, 8-14: Plea Tr.). He also stated that he understood that
the Sentencing Guidelines range could not be determined until
after the presentence report was prepared, that he could
receive a sentence higher or lower than the guidelines range,
and that he would still be bound by his guilty plea even if
he received a higher sentence. (Id. at 6-7).
testified that he had had sufficient time to discuss any
potential defenses with his attorney, that he was satisfied
with his attorney's services, and that no promises
outside of the plea agreement had been made to induce him to
plead guilty. (Id. at 15). The magistrate judge
found that Petitioner was pleading guilty knowingly and
voluntarily and accepted his guilty plea. (Id. at
probation officer prepared a presentence report in July 2015,
recommending that, based on the amount of drugs involved in
the offense, Petitioner be sentenced at a base offense level
of 34, that he receive a two-level upward adjustment under
U.S.S.G. § 2D1.1(b)(1) for possessing a dangerous
weapon, and that he receive a three-level downward adjustment
for acceptance of responsibility, for a total offense level
of 33. (Id., Doc. No. 99 at ¶¶ 66-67,
73-75). The probation officer determined that
Petitioner's criminal history category was III and that
the advisory guidelines range was 168 to 210 months of
imprisonment. (Id. at ¶¶ 93, 121).
attorney objected to the PSR, arguing that Petitioner did not
possess a firearm in connection with his drug-trafficking
offense, that the residence where the firearms were found
belonged to his mother, that none of the firearms were found
in the bedroom where he had been residing, that the firearms
were registered to another person, and that it was his
brothers who had kept the firearms at the house.
(Id., Doc. No. 94: Objection to PSR). Defense
counsel also argued that Petitioner had a minor role in the
offense compared to his codefendants and that, although he
understood the scope of the enterprise, his activities
“were limited to being a courier.” (Id.
at 1). The Government filed a sentencing memorandum
supporting the recommendations in the PSR. (Id.,
Doc. No. 130: Sent. Memo.). The Government attached
debriefing reports showing that, during the conspiracy,
Petitioner had delivered one to five kilograms of cocaine an
average of two to three times per week and that in 2012
Petitioner had obtained a new source of supply for the
conspiracy. (Id. at 1-2: Sent. Memo.; Doc. Nos.
130-31; 130-2). One of the reports noted that Petitioner
mostly stayed at his mother's home, that he had received
a firearm as a gift from one of the coconspirators in 2014,
and that he had a shotgun that he kept at his mother's
house. (Id., Doc. No. 130-1 at 4). A coconspirator
stated that he always carried a firearm, but that he had had
to persuade Petitioner not to take a firearm during one of
his drug deliveries. (Id.). A codefendant also noted
that the coconspirators all carried a weapon while operating
the cover car. (Id. at 5).
sentencing in May 2016, defense counsel again argued that
Petitioner should not receive an enhancement for possession
of a firearm in connection with his drug-trafficking offense
and that he was a courier and thus played only a minor role
in the offense. (Id., Doc. No. 145 at 3-5: Sent.
Tr.). The Government argued that Petitioner was not entitled
to a minor role adjustment because he was involved in
numerous aspects of the conspiracy, including delivering
kilogram quantities of cocaine; picking up money; and acting
as a cover car for deliveries. (Id. at 6). The
Government also argued that a firearm was used in the cover
car and that a coconspirator had given Petitioner a handgun
and also had discussed the fact that Petitioner had a
shotgun. (Id.). Both of these firearms were found in
Petitioner's room at his mother's house.
(Id.). Defense counsel countered that
Petitioner's mother told him that the shotgun was found
in his attic, but the other firearms were found in his
brother's room. (Id. at 7). This Court overruled
Petitioner's objections, finding that the firearms were
found at his residence and it was clearly probable that the
firearms were connected to his offense. (Id. at 8).
Based on the information from the PSR, as well as the
co-conspirator debriefings, the Court found that Petitioner
played more than a minor role in the offense and, therefore,
should not receive a reduction based on his role in the
offense. (Id. at 9).
Court sentenced Petitioner to 168 months of imprisonment.
(Id. at 12). Petitioner appealed. His counsel filed
a brief, pursuant to Anders v. California, 386 U.S.
738 (1967), but questioned whether this Court erred in
accepting Petitioner's guilty plea, whether the Court
abused its discretion in imposing his sentence, and whether
Petitioner had received ineffective assistance of counsel.
United States v. Rebollar, 665 F. App'x 255 (4th
Cir. 2016). The Fourth Circuit affirmed, holding that the
guilty plea was properly accepted, that there was no
procedural or substantive error in the sentence imposed, and
that Petitioner's claim of ineffective assistance of
counsel was not appropriately addressed on direct appeal.
Petitioner timely filed the present motion to vacate in May
2017, arguing that both his trial counsel and his appellate
counsel provided ineffective assistance. (Civ. Doc. No. 1).
The Government filed its response in opposition on August 21,
2017. (Civ. Doc. No. 3).
STANDARD OF REVIEW
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, the Court
finds that the arguments presented by Petitioner can be
resolved without an ...