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Boyd v. United States

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

March 27, 2018

QUINBY BOYD, Petitioner,


          Robert J. Conrad, Jr., 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).

         I. BACKGROUND

         In July 2015, law enforcement officers conducted a controlled purchase of 7.4 grams of methamphetamine using a confidential informant and pre-recorded funds. (Crim. Case No. 3:15cr298-RJC-DSC-1, Doc. No. 33 at ¶ 6: PSR). During the transaction, officers observed the seller of the methamphetamine meet with Petitioner, who was driving a Nissan Altima. (Id., Doc. No. 1 at 3: Crim. Compl.). Shortly thereafter, Petitioner was stopped for speeding. (Id. at 3-4). The officers who stopped Petitioner smelled marijuana and observed marijuana “shake” in plain view on the front passenger floorboard. (Id. at 4). Finding probable cause of a crime, the officers then searched Petitioner's car and found 58 grams of methamphetamine, divided into four separate baggies, in the center console and six grams of methamphetamine in a shoe in the car's trunk. (Id.). Petitioner was carrying $4, 339 in cash, including $400 of the pre-recorded funds that had been used to make the controlled purchase. (Id.).

         Two days later, officers observed Petitioner meet with the occupants of another car, who then followed Petitioner to his residence. (Id.). The occupants of the other car went into Petitioner's residence and returned a short time later. (Id.). Law enforcement stopped the car shortly thereafter and found a firearm, a hypodermic needle, and a “corner baggie” containing suspected methamphetamine residue. (Id.).

         A month later, a cooperating defendant told law enforcement officers that Petitioner owned a firearm that he routinely carried to protect himself during drug transactions. (Id.). A different cooperating defendant produced a corroborating photograph of a firearm in a car that the cooperator identified as belonging to Petitioner. (Id.).

         On October 5, 2015, a cooperating defendant called Petitioner and asked to buy 14 grams of methamphetamine. (Id., Doc. No. 17 at ¶ 2: Factual Basis). The call was recorded. (Id.). Petitioner stated that all he had was heroin, but that he would be getting some methamphetamine later in the day. (Id.). The cooperating defendant then asked Petitioner if Petitioner could sell the cooperator a firearm. (Id., Doc. No. 1 at 5). Petitioner stated that he had something that the cooperator could “hold on to, but I need it right now.” (Id.). Petitioner stated that he “would drop [the gun] off” when he had some time, but that he had to retrieve his “other suit” [firearm] first. (Id.). That same day, two cooperating defendants told law enforcement officers about their “historical dealings” with Petitioner. (Id.). These dealings included 210 grams of methamphetamine between July and September of 2015. (Id., Doc. No. 17 at ¶ 3). The two also admitted that they had been selling methamphetamine since late 2014. (Id., Doc. No. 1 at 5).

         On October 14, 2015, law enforcement officers executed a search warrant at Petitioner's residence and found several firearms, including an illegal short-barreled shotgun. (Id., Doc. No. 17 at ¶ 4; see Search Warrant, United States v. 9115 Post Canyon Lane, 3:15MJ358 (W.D. N.C.

         Oct. 6, 2015), ECF Nos. 1-2). At the time law enforcement officers executed the warrant, they stopped Petitioner outside of his residence. (Id., Doc. No. 17 at ¶ 4). Officers found a total of 26 grams of methamphetamine between what Petitioner was carrying and what he had in his residence. (Id.). A grand jury indicted Petitioner, charging him with conspiracy to distribute and to possess with intent to distribute 50 grams or more of a mixture containing methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B), 846 (Count One); possession with intent to distribute 50 grams or more of a mixture containing methamphetamine, in violation of 21 U.S.C. § 841(a)(1) (Count Two); possession with intent to distribute methamphetamine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C) (Count Three); possession of a firearm in furtherance of a drug-trafficking offense, in violation of 18 U.S.C. § 924(c) (Count Four); and possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1) (Count Five). (Id., Doc. No. 10: Indictment).

         The Government filed an Information, pursuant to 21 U.S.C. § 851, noticing Petitioner's two prior Virginia state felony convictions for drug trafficking. (Id., Doc. No. 12: Information). Petitioner agreed to plead guilty to Counts One and Five, in exchange for the dismissal of the remaining counts against him. (Id., Doc. No. 18 at ¶¶ 1-2: Plea Agrmt.). The parties agreed that the amount of methamphetamine reasonably foreseeable to Petitioner was at least 200 grams, but less than 350 grams; that his plea was timely entered for purposes of acceptance of responsibility; that the Government would not oppose a sentence at the bottom of the guideline range; and that either party could request adjustments, departures, or variances. (Id. at ¶ 7). If Petitioner complied with the terms of the plea agreement and the Court found that he was a career offender, the Government agreed to withdraw the § 851 Information. (Id. at ¶ 4). Petitioner also agreed to waive the right to contest his conviction and sentence on direct appeal or in any post-conviction proceeding, except as to claims of ineffective assistance or prosecutorial misconduct. (Id. at ¶¶ 18-19).

         Petitioner's initial plea hearing was postponed after Petitioner requested additional time to review the plea documents. (Id., Doc. Entry dated Feb. 24, 2016). Five days later, Petitioner pleaded guilty. (Id., Doc. No. 21: Acceptance and Entry of Guilty Plea). This Court found that his guilty plea was knowingly and voluntarily made. (Id.). After pleading guilty, but before sentencing, Petitioner retained counsel to replace his court-appointed attorney. (Id., Doc. No. 24).

         A probation officer issued a presentence report, recommending that Petitioner's base offense level was 26 under U.S.S.G. § 2K2.1(a)(1); that a two-level increase applied because the offense involved more than six firearms; and that a four-level increase applied because the firearms were used or possessed in connection with his conspiracy to possess with intent to distribute methamphetamine. (Id., Doc. No. 29 at ¶¶ 25-27: PSR). The probation officer also found that Petitioner qualified as a career offender in light of his prior Virginia drug-trafficking offenses, which increased his offense level to 37. (Id. at ¶ 32). Allowing a three-level reduction for acceptance of responsibility, Petitioner's total offense level was 34. (Id. at ¶ 35). As a career offender, Petitioner's criminal history category was VI. (Id. at ¶ 51). The probation officer found that the advisory guidelines range was 262 to 327 months of imprisonment. (Id. at ¶ 73).

         Petitioner objected to the PSR, arguing that the four-level enhancement should not apply because the firearms were not used in conjunction with any drug sales, that his prior drug trafficking convictions were misdemeanors, and that his seven criminal history points would place him in criminal history category IV. (Id., Doc. No. 33 at pp. 18-19: PSR addnm.). Petitioner also filed a pro se letter with the Court, asserting that he was pressured to plead guilty, that there was evidence of entrapment, and that, pursuant to Sears v. United States, 343 F.3d 139 (5th Cir. 1965), he should not have been charged with conspiracy. (Crim. Case No. 3:15cr298-RJC-DSC-1, Doc. No. 39). Nevertheless, he proceeded to sentencing.

         At sentencing, the Government withdrew the Section 851 Information, which reduced the statutory range of imprisonment to five to 40 years of imprisonment. (Id., Doc. No. 44: Statement of Reasons). This Court found that this reduced Petitioner's offense level to 31 and the advisory guidelines range to 188 to 235 months of imprisonment. (Id.). This Court sentenced Petitioner to 188 months' imprisonment on Count One and to 120 months' imprisonment on Count Five, with the sentences to run concurrently, entering judgment on December 27, 2016. (Id., Doc. No. 43: Judgment). Petitioner did not appeal, but timely filed the present motion to vacate in November 2017, in which he argues that he received ineffective assistance of counsel because counsel did ...

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