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).
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.
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.).
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.).
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
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.
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:
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).
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).
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).
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.
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 ...