United States District Court, W.D. North Carolina, Statesville Division
COGBURN 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), and the Government's
Response, (Doc. No. 3).
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).
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
(5:15-cr-50, Doc. No. 30 at 1-2) (emphasis added); see
(5:15-cr-50, Doc. No. 32 at 3).
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 ¶
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.
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 ...