Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Gilbert v. United States

United States District Court, E.D. North Carolina, Eastern Division

May 21, 2018

CECIL VANN GILBERT, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          LOUISE W. FLANAGAN UNITED STATES DISTRICT JUDGE.

         This matter is before the court on petitioner's motion to vacate under 28 U.S.C. § 2255, (DE 33, 37), and the government's motion to dismiss, (DE 39). Pursuant to 28 U.S.C. § 636(b)(1)(B), United States Magistrate James E. Gates, held an evidentiary hearing and entered a memorandum and recommendation (“M&R”), (DE 65), wherein it is recommended that the court deny petitioner's motion and grant respondent's motion. Petitioner timely filed objections to the M&R, and in this posture, the issues raised are ripe for ruling. For the reasons that follow, the court adopts the recommendation of the M&R, denies petitioner's motion, and grants respondent's motion.

         BACKGROUND

         Petitioner pleaded guilty, without a plea agreement, on October 16, 2014, to the following charges in a four-count indictment: 1) distribution of a quantity of cocaine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C) (counts 1-3); and 2) possession with intent to distribute a quantity of cocaine and aiding and abetting, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C) (count 4). In presentence report filed December 22, 2014, the United States Probation Office calculated an advisory guidelines range of 151 to 188 months based upon petitioner's status as a career offender.

         The presentence report identified two predicate violent crime convictions applicable to petitioner's career offender status, for discharge of a weapon into an occupied property in Pitt County Superior Court, in Greenville, North Carolina. (Presentence report (DE 21) ¶¶ 14, 19). Petitioner did not lodge any objections to the advisory guidelines calculation in the presentence report, but rather objected to the suggestion therein that the court may wish to consider an upward departure for dismissed or uncharged conduct. Petitioner also filed a sentencing memorandum, arguing that a sentence at the bottom of the advisory guidelines range was appropriate.

         The court sentenced petitioner on January 6, 2015, to a term of imprisonment of 188 months on each count to be served concurrently. Petitioner filed the instant motion to vacate on June 15, 2015, as corrected on June 29, 2015, asserting the following claims:

1) The court erroneously applied the career offender enhancement.
2) Ineffective assistance of counsel in failing to object to the career offender enhancement; failing to file an appeal as requested; and failing to consult with petitioner about the applicability of the career offender enhancement.

         The government filed the instant motion to dismiss on August 6, 2015, arguing that petitioner's first claim and part of petitioner's second claim should be dismissed as a matter of law; and that the remaining part of petitioner's second claim regarding filing of an appeal should proceed to evidentiary hearing for resolution of disputed issues of fact.

         The magistrate judge set the matter for evidentiary hearing on two issues:

1) Whether trial counsel failed to file an appeal at petitioner's request; and
2) Whether petitioner requested counsel to consult with petitioner about and challenge the career offender enhancement pursuant to United States Sentencing Guidelines § 4B1.1 that was ultimately applied by the court in determining his sentence.

         Following hearing and supplemental briefing, the magistrate judge entered M&R recommending that petitioner's first claim should be dismissed, and recommending that petitioner's second claim should be denied on the merits, on the basis of findings of fact and determinations of law set forth in the M&R. Petitioner, ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.