United States District Court, W.D. North Carolina, Asheville Division
MEMORANDUM OF DECISION AND ORDER
Reidinger, United States District Judge.
MATTER is before the Court on Petitioner's “Motion
to Withdraw Guilty Plea” that has been construed as a
Motion to Vacate, Set Aside or Correct Sentence under 28
U.S.C. § 2255 [Doc. 1].
and three co-defendants were charged in the underlying
criminal case in connection with a drug trafficking
conspiracy. Specifically, Petitioner was charged with
conspiracy to possess with intent to distribute 500 grams or
more of a mixture or substance containing a detectable amount
of methamphetamine (Count One); distribution of a detectable
amount of methamphetamine (Count Nine); and distribution of
50 grams or more of a mixture and substance containing a
detectable amount of methamphetamine (Count Ten). [CR Doc.
pled guilty to Count One in exchange for the Government's
dismissal of the remaining counts. He signed a written plea
agreement in which he acknowledged: his minimum and maximum
sentencing exposure; that the sentence had not yet been
determined and an advisory guideline sentence would be
calculated; that the sentence, up to the statutory maximum,
would be determined at the Court's sole discretion; and
that Petitioner would not be able to withdraw the plea as a
result of the sentence imposed. [CR Doc. 76 at 1-2]. The plea
agreement sets forth the rights Petitioner was waiving by
pleading guilty including the right to a jury trial with the
assistance of counsel, the right to confront and
cross-examine witnesses, and the right not to be compelled to
incriminate himself. [Id. at 4-5]. Petitioner
expressly agreed to waive his appellate and post-conviction
rights except for claims of ineffective assistance of counsel
and prosecutorial misconduct. [Id. at 5].
11 hearing was held before Magistrate Judge Howell on August
25, 2016. At that time, Petitioner stated that he and counsel
had reviewed the Indictment and the plea agreement together
and that Petitioner was pleading guilty to Count One of the
Indictment. [CR Doc. 78 at 2]. Judge Howell read aloud the
statutes to which Petitioner was pleading guilty and
explained the elements of the offense. [Id. at 2-3].
Judge Howell also advised Petitioner of his potential
sentencing exposure. [Id. at 3]. Petitioner stated
that he understood the charges against him, including the
maximum and minimum penalties and the elements of the
offense. [Id. at 4]. Petitioner agreed that counsel
had discussed the sentencing guidelines with him and that he
understood the Court could impose any sentence within the
statutory limits that may be lower or higher than the
guidelines range. [Id. at 5]. He stated that he
understood that the plea would be binding even if the
sentence were more severe than he expected. [Id.].
Petitioner confirmed that by pleading guilty, he was waiving
the right to plead not guilty, the right to have a speedy
trial before a jury with the assistance of counsel, the right
to summon witnesses to testify on his behalf, the right to
confront witnesses against him, and the right to receive the
presumption of innocence. [Id. at 6]. Petitioner
agreed that he was, in fact, guilty of Count One and that he
had committed the acts alleged in the Indictment.
stated that his plea was freely and voluntarily entered with
a full understanding of what he was doing, that he was not
promised anything other than the promises contained in the
plea agreement, and that he was not threatened in any way to
enter the plea against his wishes. [Id. at 7].
Petitioner acknowledged that he knowingly and willingly
waived accept the plea agreement's limitation on the
right to appeal and file post-conviction proceedings.
[Id. at 8]. Petitioner confirmed that he had had
ample time to discuss possible defenses with counsel and was
entirely satisfied with counsel's services.
support of Petitioner's guilty plea, the parties
submitted a written factual basis that sets forth the
following information with regards to Petitioner:
… CS3 told investigators that LARRY BROWN was one of
[co-defendant] MEDINA's associates. CS3 explained that
BROWN distributes crystal meth from the Atlanta, Georgia area
to the Cherokee, North Carolina area. CS3 consented to the
monitoring of his/her cellular telephone regarding
communications with BROWN. CS3 contacted BROWN who agreed to
travel to North Carolina and meet with CS3 and supply him/her
with crystal meth.
CS3 continued to communicate to BROWN about his intended
travel to North Carolina [on March 25, 2016]. CS3 gave BROWN
his/her address. BROWN … met with CS3 … then
followed CS3 to [a residence].
CS3 and BROWN talked about BROWN's drug trafficking
activities with MEDINA. BROWN took a call, it was MEDINA. CS3
overheard BROWN agreeing to meet up with MEDINA at
MEDINA's motel room after he left CS3. BROWN then
“fronted” CS3 29 grams of crystal meth….
The buy was captured on the recording.
Trooper Dietz located the [vehicle carrying] BROWN …
on Highway 441 North and pulled him over. Trooper Dietz
exited his vehicle to approach … when BROWN sped off.
Other members of the NCSHP, the CIPD and the National Park
Service (“NPS”) joined the pursuit. Trooper Dietz
observed BROWN throwing bags of a white substance from his
vehicle during the pursuit. The pursuit ended when BROWN
crashed into another vehicle…. BROWN fled on foot and
was chased by investigators…. BROWN made it ¾
of a mile before investigators caught him and took him into
Investigators recovered the bags of crystal meth - totaling
approximately 92.6 grams - that BROWN tossed from [his
vehicle] during the pursuit. Investigators also seized a
black bank bag and a set of digital scales from the vehicle.
[CR Doc. 77 at 6-9]. Petitioner certified that the written
factual basis is true and accurate and that, if the matter
had proceeded to trial, the Government would have been able
to prove the statements in the ...