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Littlejohn v. United States

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

July 9, 2018

YUMARKUA ROOSEVELT LITTLEJOHN, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent. Civil No. 1:18-cv-00143-MR

          MEMORANDUM OF DECISION AND ORDER

          MARTIN REIDINGER UNITED STATES DISTRICT JUDGE

         THIS 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].

         I. BACKGROUND

         Petitioner 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.].

         Petitioner 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 misconduct. [Id.].

         The 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 inside.
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 $7753.
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)].

         At a 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].

         In the 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].

         Defense 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. ยง 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 ...

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