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Brown v. United States

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

March 30, 2018

LARRY BROWN, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OF DECISION AND ORDER

          Martin Reidinger, United States District Judge.

         THIS 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].[1]

         I. BACKGROUND

         Petitioner 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. 14].

         Petitioner 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].

         A Rule 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. [Id.].

         Petitioner 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. [Id.].

         In 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 custody.
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 ...


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