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).
was charged by Bill of Information with: Count (1), possession
with intent to distribute a mixture and substance containing
a detectable amount of a Schedule II controlled substance,
methamphetamine; Count (2), possession of a firearm by a
felon; and Count (3), using or carrying a firearm in
furtherance of a drug trafficking crime. (3:16-cr-222, Doc.
pled guilty to all three counts pursuant to a written plea
agreement. (3:16-cr-222, Doc. No. 2). The agreement provides
that Petitioner stipulates that there is a factual basis,
that he read and understood the written factual basis filed
with the plea agreement, and that it may be used by the Court
and Probation Office without objection to determine the
applicable advisory guideline range and appropriate sentence.
(3:16-cr-222, Doc. No. 2 at 4). The parties agreed to jointly
recommend several findings and conclusions as to the U.S.
Sentencing Guidelines including that “[t]he amount of
mixture and substance containing a detectable amount of
methamphetamine that was known to or reasonably foreseeable
by the defendant was approximately 45.5 grams.”
(3:16-cr-222, Doc. No. 2 at 2). Petitioner waived all
appellate and post-conviction rights to contest the
conviction except for claims of ineffective assistance of
counsel or prosecutorial misconduct. (3:16-cr-222, Doc. No. 2
written Factual Basis provides, in part, that “[t]he
total amount of mixture and substance containing a detectable
amount of methamphetamine purchased or seized is
approximately 45.5 grams.” (3:16-cr-222, Doc. No. 3 at
11 plea hearing before Magistrate Judge Cayer. See
(3:16-cr-222, Doc. No. 28). Petitioner acknowledged that he
received a copy of the Bill of Information and went over it
with counsel. (3:16-cr-222, Doc. No. 28 at 5). He fully
understood the charges and potential penalties including how
the sentencing guidelines may apply in his case.
(3:16-cr-222, Doc. No. 28 at 5-7). He agreed that he is
guilty of the three counts to which he was pleading guilty.
(3:16-cr-222, Doc. No. 28 at 9). He agreed that the parties
would jointly recommend that the amount of mixture and
substance containing a detectable amount of methamphetamine
that was known or reasonably foreseeable to Petitioner was
approximately 45.5 grams. (3:16-cr-222, Doc. No. 28 at 10,
13). Petitioner confirmed that he read the factual basis,
understood it, and agreed with it. (3:16-cr-222, Doc. No. 28
at 14). Nobody threatened, intimidated, or coerced him, or
made any promises other than those contained in the plea
agreement to induce him to plead guilty. (3:16-cr-222, Doc.
No. 28 at 14). He was satisfied with counsel's services.
(3:16-cr-222, Doc. No. 28 at 14). Magistrate Judge Cayer
found that the plea was knowingly and voluntarily made, that
a factual basis supports the plea, and accepted the guilty
plea. (3:16-cr-222, Doc. No. 28 at 15).
calculated the base offense level as 22 based on the quantity
of methamphetamine for which Petitioner was responsible, 45.5
grams. (3:16-cr-222, Doc. No. 16 at ¶ 25). Three levels
were deducted for acceptance of responsibility, resulting in
a total offense level of 19. (3:16-cr-222, Doc. No. 16 at
¶¶ 40-43). Petitioner had four criminal history
points and a criminal history category of III. (3:16-cr-222,
Doc. No. 16 at ¶¶ 62, 63). The resulting guideline
range was 37 to 46 months plus a mandatory consecutive
sentence for Count (3). (3:16-cr-222, Doc. No. 16 at
¶¶ 116, 117).
sentencing hearing, Petitioner agreed that he read the PSR,
understood it, and had enough time to review it with counsel.
(3:16-cr-222, Doc. No. 29 at 2-3). The parties agreed that
the PSR correctly calculated the guideline range.
(3:16-cr-222, Doc. No. 29 at 3). While arguing for a downward
variance, counsel noted that “as to the overall drug
amount, Mr. El-Amin is fully taking responsibility for what
that was, 45.5 grams. I don't think there's any
allegation that it was high purity or anything like that. And
he certainly knows that, you know, even fake drugs - all of
that can be very serious conduct and I think he takes
responsibility for that.” (3:16-cr-222, Doc. No. 29 at
16). The Government filed a departure motion that the Court
granted. (3:16-cr-222, Doc. No. 29 at 17). The Court
sentenced Petitioner to 24 months' imprisonment as to
Counts (1) and (2), concurrent, and 60 months consecutive as
to Count (3), for a total of 84 months, followed by three
years of supervised release. (3:16-cr-222, Doc. No. 29 at
17); (3:16-cr-222, Doc. No. 20).
filed a memorandum brief on direct appeal but Petitioner
filed a pro se brief arguing that the sentence is
unreasonable and that he should be resentenced. The Fourth
Circuit Court of Appeals affirmed, finding that the sentence
is procedurally and substantively reasonable. It found that
the Court properly calculated the applicable sentencing
guideline range, appropriately explained the below-guidelines
sentence in light of the relevant § 3553(a) factors, and
offered ample reasons for rejecting counsel's request for
a downward variance. United States v. El-Amin, 699
Fed.Appx. 177 (4th Cir. 2017). The United States
Supreme Court denied certiorari on January 16, 2018.
El-Amin v. United States, 138 S.Ct. 750 (2018).
filed the instant § 2255 Motion to Vacate on March 12,
2018. (Doc. No. 1). He argues that counsel was ineffective
for failing to: (1) object to the 45.5 gram drug quantity
because some of the drugs were fake; (2) object that the drug
amount was not charged in the Bill of Information; and (3)
argue that “the McCarthy Rule of 62 interrogation
questions that were mandatory, stated by the Supreme
Court.” (Doc. No. 1 at 4). He requests an evidentiary
hearing to determine the “actual/fake drug quantity,
” and a corrected sentence. (Doc. No. 1 at 12). He
specifically states that he is not attempting to withdraw his
guilty plea. (Doc. No. 1-1 at 7-8).
2255 STANDARD OF REVIEW
federal prisoner claiming that his “sentence was
imposed in violation of the Constitution or the laws of the
United States, or that the court was without jurisdiction to
impose such sentence, or that the sentence was in excess of
the maximum authorized by law, or is otherwise subject to
collateral attack, may move the court which imposed the
sentence to vacate, set aside or correct the sentence.”
28 U.S.C. § 2255(a).
Sixth Amendment to the U.S. Constitution guarantees that in
all criminal prosecutions, the accused has the right to the
assistance of counsel for his defense. See U.S.
Const. Amend. VI. To show ineffective assistance of counsel,
Petitioner must first establish deficient performance by
counsel and, second, that the ...