United States District Court, W.D. North Carolina, Asheville Division
MEMORANDUM OF DECISION AND ORDER
REIDINGER UNITED STATES DISTRICT JUDGE
MATTER is before the Court on Petitioner's pro
se Motion to Vacate, Set Aside or Correct Sentence under 28
U.S.C. § 2255 [Doc. 1].
was charged, along with a co-defendant, with conspiracy to
distribute cocaine and cocaine base (Count One), and
possession with intent to distribute cocaine base (Count
Three). [Criminal No. 1:16-cr-00056-MR (“CR”),
Doc. 3]. Petitioner pled guilty pursuant to a written Plea
Agreement to Count Three in exchange for the Government's
dismissal of Count One. In the Plea Agreement, Petitioner
acknowledged that the statutory range of imprisonment was a
minimum of five years and a maximum of forty years. [CR Doc.
24 at 2]. Petitioner further acknowledged that the advisory
sentencing guidelines apply and that the Court would not be
bound by the parties' recommendations in determining the
sentence. [Id.]. The parties agreed to jointly
recommend that the amount of cocaine base attributable to
Petitioner was 60.96 grams. [Id.].
stipulated to the existence of a factual basis as set forth
in the written Factual Basis filed with the plea agreement,
that he read and understood the Factual Basis, and that it
“may be used by the Court and the United States
Probation Office without objection by the defendant to
determine the applicable advisory guideline range or the
appropriate sentence” unless Petitioner explicitly
reserved any objections by noting them in the Factual Basis
itself. [Id. at 4]. Petitioner expressly waived his
rights to be tried by a jury, to receive the assistance of
counsel at trial, to confront and cross-examine witnesses,
and to not be compelled to incriminate himself.
[Id.]. The agreement contained appellate and
post-conviction waivers except with regard to claims of
ineffective assistance of counsel and prosecutorial
written Factual Basis provides, in relevant part:
[The Rutherford County Sheriff's Office] applied for a
state search warrant for LITTLEJOHN's residence.
LITTLEJOHN was angry when officers executed the warrant at
approximately 2:12 PM on August 3, 2015, and had to be
physically restrained. He told the officers that no one else
was at the residence but his 10 year old son was sleeping
Once the search began in earnest, officers found
approximately 3 ounces of crack cocaine in the top dresser
drawer in the master bedroom. In the second drawer they
located 139 grams of marijuana and $1441 in U.S. Currency. In
the closet they found $5400 in U.S. Currency concealed in a
shoe, two more ounces of marijuana, and a shotgun. Another
$912 was found in a male's pants pocket for a total of
At approximately 2:50 PM RCSO Detective Jamie Dunn advised
LITTLEJOHN of his Miranda rights and asked him if he wanted
to talk about the items seized. LITTLEJOHN agreed. When asked
about the three ounces, LITTLEJOHN stated it was only
‘2 and some change.' He stated all the narcotics
found in the room were his. LITTLEJOHN stated he was just a
user and Detective Dunn stated he didn't think three
ounces were user amounts, to which LITTLEJOHN responded that
he did what he needed to do. LITTLEJOHN stated that the
shotgun belonged to his wife.
[CR Doc. 25 at 3 (emphasis added)].
Rule 11 hearing before Magistrate Judge Dennis Howell,
Petitioner stated under oath that he understood the nature of
the proceedings; that he had read the Indictment and reviewed
it with counsel; that he had read and understood the Plea
Agreement and reviewed it with counsel; that he understood
the offense elements, sentencing exposure, and consequences
of the plea including the rights he was waiving; and that he
was pleading guilty because he is guilty of that offense. [CR
Doc. 26 at 1-7].
Presentence Investigation Report (“PSR”), the
probation officer recommended a base offense level of 24
based on Petitioner's admitted responsibility for 60.96
grams of cocaine base. [CR Doc. 43 at ¶ 29]. The
probation officer recommended adding two levels pursuant to
U.S. Sentencing Guidelines § 2D1.1(b)(1) due to the fact
that “[t]he investigation determined the defendant
possessed a dangerous weapon at the time of the instant
offense.” [Id. at ¶ 30]. The probation
officer recommended deducting three levels for acceptance of
responsibility, resulting in a recommended total offense
level of 23. [Id. at ¶¶ 36-38]. With a
criminal history category of III, the resulting recommended
Guidelines range was 60 to 71 months' imprisonment and
between four and five years of supervised release.
[Id. at ¶¶ 87, 90].
counsel filed several objections to the PSR, including an
objection to the two-level enhancement for possession of a
dangerous weapon, as recommended in paragraph 30 of the PSR.
Specifically, counsel argued:
Mr. Littlejohn objects to the two-level enhancement for
possession of a dangerous weapon at the time of the instant
offense, pursuant to U.S.S.G. § 2D1.1(b)(1). Mr.
Littlejohn's partner, Talina Carson, purchased the gun
for her protection and kept it in her closet. She did not
make Mr. Littlejohn aware of the purchase. She made a
declaration of these facts, which she signed. When asked