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