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Rader v. United States

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

May 29, 2018

TODD PHILLIP RADER, 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).

         I. BACKGROUND

         Petitioner 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).

         Petitioner 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).

         Petitioner 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.

         By 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).

         The 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).

         He 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).

         With 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).

         The 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 ...


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