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Lindsey v. United States

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

March 27, 2018

REGINALD WILLIAM LINDSEY, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          Frank D. Whitney, Chief United States 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), the Government's Response, (Doc. No. 5), Petitioner's “Motion for Consideration, ” (Doc. No. 11), Petitioner's Motion to Amend, (Doc. No. 6), Petitioner's Sealed letter to the Court, (Doc. No. 7), Petitioner's Motion for an Extension of Time, (Doc. No. 9), and Petitioner's Reply, (Doc. No. 10).

         I. BACKGROUND

         Petitioner was indicted along with 10 co-defendants in a cocaine trafficking conspiracy. The charges pertaining to Petitioner are: Count (1), conspiracy to distribute and possess with intent to distribute five kilograms of cocaine; Count (2), conspiracy to distribute and possess with intent to distribute 280 grams of cocaine base; Count (3) conspiracy to commit money laundering; Counts (5), (6), (8), (9), possession with intent to distribute 28 grams of cocaine base, and aiding and abetting the same; Count (10), possession with intent to distribute 280 grams of cocaine base; and Count (11), possession with intent to distribute 500 grams of cocaine. (3:14-cr-73, Doc. No. 3).

         Petitioner pled guilty to Count (2) in exchange for the Government's dismissal of the remaining eight counts. (3:14-cr-73, Doc. No. 142). Petitioner acknowledged in a written plea agreement the statutory maximum and minimum sentences and the fact that the sentence had not yet been determined. (3:14-cr-73, Doc. No. 142 at 1-2). Petitioner expressly agreed as part of the plea to waive his rights to be tried by a jury, to be assisted by an attorney at trial, to confront and cross-examine witnesses, and not to be compelled to incriminate himself. (3:14-cr-73, Doc. No. 142 at 3-4). He acknowledge that he “had discussed with his attorney: (1) defendant's rights pursuant to 18 U.S.C. § 3742, 28 U.S.C. § 2255, and similar authorities to contest a conviction and/or sentence through an appeal or post-conviction after entering into a plea agreement; [and] (2) whether there are any potential issues relevant to an appeal or post-conviction action….” (3:14-cr-73, Doc. No. 142 at 5). He agreed to waive all such rights to contest the conviction and sentence except for claims of ineffective assistance of counsel or prosecutorial misconduct. (3:14-cr-73, Doc. No. 142 at 5).

         Petitioner appeared at a Rule 11 hearing, was sworn, and stated that he received a copy of the indictment and discussed it with counsel; he understood the charges against him including the sentencing consequences; he had spoken to counsel about how the U.S. Sentencing Guidelines might apply in his case; he may receive a sentence that is higher or lower than called for by the Guidelines; a sentence more severe than he expects does not give him the right to withdraw his plea; he has the right to plead not guilty and proceed to a speedy jury trial at which he can call and confront witnesses; he would be entitled to the assistance of a lawyer, would be presumed innocent, and would not be required to testify. (3:14-cr-73, Doc. No. 160 at 2). He agreed that he is, in fact guilty of the count in the indictment to which he was pleading guilty. (3:14-cr-73, Doc. No. 160 at 3). He also acknowledged the appeal waiver. (3:14-cr-73, Doc. No. 160 at 3). The plea was freely and voluntarily entered and was not the product of promises, threats, intimidation, or force. (3:14-cr-73, Doc. No. 160 at 3). He was satisfied with counsel's services and stated he is “[d]oing a good job….” (3:14-cr-73, Doc. No. 160 at 3).

         The Presentence Investigation Report (“PSR”) calculated the base offense level as 32 because the amount of controlled substances in the offense is equivalent to 4, 424.78 kilograms of marijuana. (PSR ¶ 32). Two levels were added for Petitioner's role as organizer, leader, manger, or supervisor in the criminal activity. (PSR ¶ 41). This resulted in an adjusted offense level of 34. However, Petitioner's offense level is 37 because he qualifies as a career offender pursuant to U.S. Sentencing Guidelines § 4B1.1(b)(1). (PSR ¶ 37). After three levels were deducted for acceptance of responsibility the total offense level was 34. (PSR ¶¶ 45-47). The PSR's criminal history section scored 13 criminal history points with a criminal history category of VI, and Petitioner qualifies as a career offender and as such his criminal history category is VI pursuant to U.S. Sentencing Guidelines§ 4B1.1(b). (PSR ¶¶ 13-14). The resulting guideline range was 262 to 327 months' imprisonment. (PSR ¶ 98). Neither party objected. The Government did, however, move for a downward departure. See (3:14-cr-73, Doc. No. 268) (sealed).

         At the sentencing hearing, Petitioner confirmed that he answered all the questions at the Rule 11 hearing correctly and that he is, in fact, guilty of the offense to which he pled guilty. (3:14-cr-73, Doc. No. 317 at 2-4). The following then transpired:

THE COURT: … Now, Mr. Lindsey, after you entered your plea of guilty, your case was referred to the United States Probation office for a presentence investigation report. I'm holding a copy of that report up. Have you received and read this report?
THE DEFENDANT: Yes. Yes, sir.
THE COURT: Do you understand it?
THE DEFENDANT: Yes, sir.
THE COURT: Have you had an opportunity to go over the report with Mr. Exum?
THE DEFENDANT: Yes, sir.
THE COURT: And has he answered any and all questions you have regarding this report?
THE DEFENDANT: Yes, sir.
THE COURT: All right. Thank you.
I believed there are no objections to the report; is that correct?
MR. EXUM: That's correct, Your Honor.
THE COURT: All right … In the instant case, before considering any motion of the Government, the guidelines provide for an offense level of 34, a criminal history category of VI, for a ...

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