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Brown v. United States

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

May 21, 2018

JENNIFER IRENE BROWN, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          MAX O. COGBURN JR. UNITED STATES DISTRICT JUDGE.

         THIS 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), and the Government's Response, (Doc. No. 3).

         I. BACKGROUND

         Petitioner was charged in the underlying criminal case with: Count (1), conspiracy to possess with intent to distribute 50 grams or more of methamphetamine actual and 500 grams or more of a mixture and substance containing a detectable amount of methamphetamine; Count (4), possession with intent to distribute a detectable amount of methamphetamine; Count (5), possession of one or more firearms in furtherance of a drug trafficking crime as charged in Counts (1) and (4); Count (6), possession with intent to distribute a detectable amount of methamphetamine; and Count (7), possession of one or more firearms in furtherance of a drug trafficking crime as charged in Counts (1) and (6). (5:15-cr-50, Doc. No. 9).

         Petitioner entered a knowing and voluntary guilty plea to Count (1) pursuant to a written plea agreement in which she admitted her factual guilt. (5:15-cr-50, Doc. No. 31 at 1); see (5:15-cr-50, Doc. No. 32). The plea agreement contains appellate and post-conviction waivers. (5:15-cr- 50, Doc. No. 31 at 5). The written factual proffer that Petitioner signed and admitted is true provides, in part:

On May 14, 2014, law enforcement in Catawba County executed a search warrant at 3594 Airport Road, Maiden North Carolina, Defendant Jennifer Irene Brown's residence and recovered approximately 2 grams (20 dosage units) of methamphetamine that was in plain view on the dresser in the master bedroom; $2, 645 in cash (most of it in a purse in the master bedroom and some on the dresser), and a Diamond Firearm .380 caliber handgun … in the master bedroom safe. Brown was not in custody and provided an interview with the law enforcement officials in which she admitted selling one or two ounces of methamphetamine per week “for some time.”
On November 6, 2014, law enforcement in Lincoln County initiated a traffic stop of Defendant Brown, and found her in possession of about 2.5 grams (25 dosage units) of methamphetamine. She told them that she had come from her house, so law enforcement obtained and executed another search warrant at her residence, seizing suspected methamphetamine, various pills, $1, 000 in cash, and a stolen 9mm Taurus handgun….
In February 2015, law enforcement seized 166 grams of 95.7% pure crystal-methamphetamine and a handgun from a co-conspirator while he was en route back to Catawba County from Georgia. The co-conspirator provided a detailed confession and then consensually monitored and recorded calls to Defendant Brown.
In the confession, the co-conspirator stated that he drove to Atlanta with Brown to pick up methamphetamine starting around Thanksgiving 2014 (2 ounces then 3 trips for 4 ounces each). Starting around Christmas time 2014, they started getting 8 ounces of methamphetamine on six to eight occasions. The total of this methamphetamine is 1, 736 grams at the low end.
In the recorded call with Brown, after the co-conspirator explained that he had lost the drugs, she made incriminating statements about the drugs and her involvement in the conspiracy.

(5:15-cr-50, Doc. No. 30 at 1-2) (emphasis added); see (5:15-cr-50, Doc. No. 32 at 3).

         The Presentence Investigation Report (“PSR”) scored the base offense level as 32 because the offense involved at least 1.5 kilograms, but less than 5 kilograms of methamphetamine. (5:15-cr-50, Doc. No. 45 at ¶ 18). Two levels were added pursuant to U.S. Sentencing Guidelines § 2D1.1(b)(1) because a dangerous weapon including a firearm was possessed. (5:15-cr-50, Doc. No. 45 at ¶ 19). Three levels were deducted for acceptance of responsibility, resulting in a total offense level of 31. (5:15-cr-50, Doc. No. 45 at ¶¶ 25-27). Petitioner had one criminal history point and a criminal history category of I. (5:15-cr-50, Doc. No. 45 at ¶¶ 41-42). The resulting advisory guideline imprisonment range was 120 to 135 months. (5:15-cr-50, Doc. No. 45 at ¶ 74).

         The Court accepted the PSR without change and sentenced Petitioner below the advisory guideline range to 63 months' imprisonment on the parties' joint recommendation. (5:15-cr-50, Doc. No. 59); see (5:15-cr-50, Doc. No. 55). Petitioner did not appeal.

         Petitioner filed the instant § 2255 Motion to Vacate on August 5, 2017. She argues that counsel was ineffective for failing to object to the § 2D1.1 enhancement which increased her offense level and rendered her ineligible to participate in a Bureau of Prisons Residential Drug Abuse Program (“BOP RDAP”). She argues that the firearm was at her home and she did not possess when she was arrested and it was clearly improbable that the weapon was connected with the offense and was not possessed during the crime. If counsel had objected, her offense level would have been lower, resulting in a shorter sentence and eligibility for ...


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