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).
was charged in the underlying criminal case with: Count (1),
conspiracy to traffic in methamphetamine; Counts (2)-(5),
possession with intent to distribute methamphetamine; Count
(7), possession of a firearm in furtherance of a drug
trafficking offense; and Count (8), possession of a firearm
by a convicted felon. (5:15-cr-45, Doc. No. 1). The
Government dismissed Counts (2) and (3) without prejudice.
(5:15-cr-45, Doc. No. 32).
filed a Motion to Suppress Statements and requested an
evidentiary hearing, arguing that his supposed statements to
police were made under the influence of heroin and
methamphetamine, which rendered them involuntary.
(5:15-cr-45, Doc. No. 31).
pled guilty to Count (1) pursuant to a written plea agreement
in exchange for dismissal of the remaining counts. The plea
agreement provides that the statutory sentencing exposure,
pursuant to 21 U.S.C. § 851, is no less than 20 years
and not more than life, and at least 10 years of supervised
release. (5:15-cr-45, Doc. No. 34 at 1-2). However, the
Government agreed to withdraw the § 851 notice if
Petitioner complied with the plea agreement, in which case
the sentencing exposure would become no less than10 years and
no more than life imprisonment and at least five years of
supervised release. (5:15-cr-45, Doc. No. 34 at 2). The
agreement states that the advisory guidelines range had not
yet been calculated and neither the guidelines nor the
parties' recommendations or agreements with regards to
sentencing would not be binding on the Court. The parties
agreed to jointly recommend: the amount of a mixture and
substance containing a detectable amount of methamphetamine
that was known or reasonably foreseeable to Petitioner was at
least 500 grams. Petitioner “admit[ted], for the
purposes of this plea agreement, that the drug amount is in
excess of 500 grams, but specifically denies being
responsible for between 5 and 15 kilograms.”
(5:15-cr-45, Doc. No. 34 at 2). The United States maintained
that the drug amount was between five and 15 kilograms.
pleading guilty, Petitioner expressly waived the rights (a)
to be tried by a jury; (b) to be assisted by an attorney at
trial; (c) to confront and cross-examine witnesses; and (d)
not to be compelled to incriminate himself. (5:15-cr-45, Doc.
No. 34 at 5). The agreement contains a direct appeal and
collateral review waiver except for claims of ineffective
assistance of counsel or prosecutorial misconduct.
(5:15-cr-45, Doc. No. 34 at 5). Petitioner admitted that he
read and understood the written Factual Basis in support of
the plea, and understood that it would be used by the Court
and the United States Probation Office to determine the
applicable advisory guideline range and appropriate sentence,
unless specifically reserved. (5:15-cr-45, Doc. No. 34 at 4).
It provides, in relevant part:
On January 28, 2015, an undercover law enforcement officer in
Caldwell County conducted a controlled purchase of 6.9 grams
of methamphetamine (only 22.9% purity) from Defendant Todd
Phillip Radar [sic] for $400.
On February 3, 2015, an undercover law enforcement officer in
Caldwell County conducted a controlled purchase of
approximately 4 grams of methamphetamine (only 27.1 % purity)
from Defendant Todd Phillip Radar [sic] for $200.
On February 10, 2015, law enforcement in Caldwell County
conducted a controlled purchase of approximately 34.2 grams
of methamphetamine (50.9% purity, for 17.4 grams of
“actual” meth) from Defendant Todd Phillip Rader
[sic] for $1, 500.
On March 2, 2015, law enforcement conducted a traffic stop of
Defendant Radar [sic] and found him in possession of 21.6
grams of methamphetamine (93.3% purity, for 20.15 grams of
“actual” meth) and a .22 caliber Smith &
Wesson handgun. Radar [sic] has a prior felony drug
conviction in 2001 for Trafficking in Lysergic Acid (a
Schedule III controlled substance) (Class G felony) for which
he served approximately 3 years in prison.
Later on March 2, 2015, Defendant Radar [sic] provided a
post-Miranda confession to law enforcement. (The
Defendant objects to this sentence).
(5:15-cr-45, Doc. No. 33).
plea hearing came before Magistrate Judge David C. Keesler.
Petitioner stated under oath that he discussed the plea
agreement with counsel and fully understood it, including the
charge, his sentencing exposure, and the agreed drug
quantity. (5:15-cr-45, Doc. No. 58 at 3-7).
discussed the U.S. Sentencing Guidelines and how they might
apply to his case with counsel and understood that the
sentence had not yet been determined. (5:15-cr-45, Doc. No.
58 at 8). He understood the rights he was waiving by pleading
guilty, including the right to a speedy trial before a judge
and jury, to summon witnesses to testify on his behalf, and
to confront witnesses against him, have the assistance of
counsel, be presumed innocence, and require the Government to
prove his guilt beyond a reasonable doubt. (5:15-cr-45, Doc.
No. 58 at 9-10). The Court advised him that, “[b]y
entering this plea of guilty, you're waiving that right
[to have a trial]. There's not going to be a trial. There
will be one more hearing where the district judge will
determine what sentence to impose in your case. Do you
understand all that?” (5:15-cr-45, Doc. No. 58 at 10)
(emphasis added). Petitioner responded “[y]es.”
(5:15-cr-45, Doc. No. 59 at 10). Petitioner further stated
that understood the charge of methamphetamine trafficking
conspiracy, went over the charge with counsel, understood it,
and is guilty of that crime. (5:15-cr-45, Doc. No. 58 at 10).
the exception of the objections in the written Factual
Proffer, Petitioner stated that he read it and agreed with
it. (5:15-cr-45, Doc. No. 58 at 17). With regards to drug
amount, the prosecutor explained that Petitioner agreed to
the statutory threshold of 500 grams but, beyond that, the
parties were reserving the right to advocate their positions
with regards to whether the base offense level should be 30
or greater. (5:15-cr-45, Doc. No. 58 at 14). Petitioner
agreed that nobody threatened, intimidated, or forced him to
plead guilty, or promised him anything other than what is
contained in the plea agreement. (5:15-cr-45, Doc. No. 17).
He had enough time to discuss with his lawyer any possible
defenses he might have to the charges and was satisfied with
the services of his lawyers, who were
“exceptional.” (5:15-cr-45, Doc. No. 58 at 17).
Presentence Investigation Report (“PSR”) was
calculated with the assumption that Petitioner would comply
with the plea agreement and the § 851 notice would be
withdraw by the Government. See (5:15-cr-45, Doc. No. 42 at
¶ 98). The PSR scored the base offense level as 34 for a
violation of 21 U.S.C. § 841(a)(1) involving at least
five kilograms but less than 15 kilograms of methamphetamine.
(5:15-cr-45, Doc. No. 42 at ¶ 20). Two levels were added
for possession of a firearm during the course of the
conspiracy. (5:15-cr-45, Doc. No. 42 at ¶ 21). Three
levels were deducted for acceptance of responsibility,
resulting in a total offense level of 33. (5:15-cr-45, Doc.
No. 42 at ¶¶ 27-29). Petitioner had 13 a criminal
history score of 13 and two points were added because
Petitioner committed this offense while under a criminal
justice sentence, resulting in a total criminal history score
of 15 and criminal history ...