United States District Court, W.D. North Carolina, Statesville Division
KENNETH D. BELL, 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. 1].
August 7, 2017, Pro Se Petitioner Jennifer Leann Roland
(“Petitioner”) pleaded guilty pursuant to a
written plea agreement to one count of conspiracy to
distribute and possess with intent to distribute
methamphetamine, in violation of 21 U.S.C. § 841(a)(1)
and 846 (Count One). [Criminal No. 5:17-cr-00011-KDB-DCK-3
(“CR”), Doc. 57: Acceptance and Entry of Guilty
Plea]. Count One further alleged that, “with respect to
the offense charged in Count One, five hundred (500) grams or
more of a mixture and substance containing a detectable
amount of methamphetamine … and fifty (50) grams or
more of [actual] methamphetamine” are attributable to
and reasonably foreseeable by Petitioner pursuant to 21
U.S.C. § 841(b)(1)(A). [CR. Doc. 43: Second Superseding
Indictment]. In pleading guilty, Petitioner admitted to being
in fact guilty of Count One. [CR Doc. 56 at ¶ 1: Plea
Agreement]. A Factual Basis was filed contemporaneously with
the Plea Agreement. [CR Doc. 55: Factual Basis]. In signing
the Plea Agreement, Petitioner attested to having read and
understood the Factual Basis and stipulated that it may be
used by the Court and the United States Probation Office
without objection to determine the applicable advisory
guideline range or the appropriate sentence under 18 U.S.C.
§ 3553(a), unless explicit reservation was made to
object to a particular fact(s). [CR Doc. 56 at ¶ 4;
see CR Doc. 55]. The Factual Basis states, in
pertinent part, as follows:
or around about 2016 to in or about January 2017, in Caldwell
County, North Carolina, and elsewhere, Petitioner was a
member of a conspiracy to distribute and possess with the
intent to distribute methamphetamine. [CR Doc. 55 at ¶
1]. On December 22, 2016, an investigative team conducted an
undercover controlled purchase of approximately one ounce (28
grams) of methamphetamine from Chuck Allen Church, Jr.,
(“Church”) at his residence in Caldwell County,
where he lived with Petitioner. Petitioner was present during
the transaction. Later that day, a search warrant was
obtained and executed at the residence, resulting in the
seizure of an additional 84 grams of 97.8% pure
methamphetamine, a “sawed-off” short-barrel
shotgun (located in plain view in a closet in a spare
bedroom), and approximately $11, 658 in cash. The shotgun was
manufactured outside the State of North Carolina. It,
therefore, travelled in and affected interstate commerce.
Petitioner objected to and reserved her right to challenge a
weapon enhancement, asserting she had no knowledge of the
shotgun's presence. [Id. at ¶ 2].
January 31, 2017, the investigative team arrested Church and
Petitioner who was traveling with Church at the time. The
team seized approximately 3.5 grams of methamphetamine,
scales, and empty and unused baggies from the residence where
Church was located and found approximately $3, 500 in his
vehicle. Church and Petitioner both provided videotaped
post-Miranda confessions in which they admitted
trafficking in well over 500 grams of methamphetamine.
[Id. at ¶ 4].
31, 2017, Petitioner was charged in a Criminal Complaint with
Count One as described above; one count of possession with
intent to distribute at least 50 grams of actual
methamphetamine, in violation of 21 U.S.C. §§
841(a), 841(b)(1)(A) (Count Two); and one count of possession
of a firearm in furtherance of drug trafficking, in violation
of 18 U.S.C. § 924(c) (Count Three). [CR Doc. 1:
Criminal Complaint]. On June 20, 2017, Petitioner was charged
in a Second Superseding Bill of Indictment with the same
three counts. [CR Doc. 43: Second Superseding Bill of
Indictment]. In exchange for Petitioner's agreement to
plead guilty to Count One, the Government agreed to dismiss
Counts Two and Three. [CR Doc. 56 at ¶¶ 1-2].
United States Magistrate Judge accepted Petitioner's
guilty plea after conducting a thorough plea colloquy, during
which Petitioner was represented by counsel. [CR Doc. 112:
Plea Hearing Tr.; see CR Doc. 57]. Under oath,
Petitioner told the Court that she received a copy of the
indictment and discussed it with her attorney. [CR Doc. 57 at
¶ 8; CR Doc. 112 at 4]. The Court read the charge aloud
to the Petitioner during the hearing and advised Petitioner
of any maximum penalties and mandatory minimum sentences that
applied. [Id.; CR Doc. 112 at 4-5]. Petitioner then
told the Court that she fully understood the charge against
her, including the maximum and minimum penalties she faced.
[Id. at ¶ 9; CR Doc. 112 at 5]. The Petitioner
further attested that she had spoken with her attorney
regarding how the U.S. Sentencing Guidelines might apply to
her case and that, in some circumstances, Petitioner may
receive a sentence higher or lower than that called for in
the Guidelines. [Id. at ¶¶ 13, 15; CR Doc.
at 5-6]. Petitioner stated, under oath, that she was in fact
guilty of Count One. [Id. at ¶ 24; CR Doc. at
further acknowledged her understanding that her right to
appeal her conviction and/or sentence and her right to
challenge her conviction and/or sentence in a post-conviction
proceeding had been expressly waived in the Plea Agreement.
[Id. at ¶¶ 27-28; CR Doc. 112 at 11].
Petitioner also told the Court that she was aware that a
Factual Basis had been filed in her case and that she had
read it, understood it, and agreed with it. [Id. at
¶¶ 30-31]. Petitioner stated that no one had
threatened, intimidated, or forced her to enter her plea of
guilty. [Id. at ¶ 32]. She told the Court that
she was “satisfied with the services of [her] lawyer in
this case.” [Id. at ¶ 35].
months later, Petitioner was sentenced. Before the sentencing
hearing, a probation officer prepared a Presentence
Investigation Report (PSR). [CR Doc. 80: Presentence Report].
Petitioner's Total Offense Level (TOL) was 27, which
included a 2-point firearm enhancement under U.S.S.G. §
2D1.1(b)(1), and Petitioner's criminal history category
was II, which yielded a guidelines range of 78 to 97
months' imprisonment. [Id. at ¶¶ 17,
25, 35, 73]. However, because the charge carries a statutory
minimum term of 10 years' imprisonment, 21 U.S.C.
§§ 841(a)(1) and 841(b)(1)(A), the guidelines term
of imprisonment was 120 months, U.S.S.G. § 5G1.1(b).
[Id. at ¶ 72-73].
attorney filed several objections to the PSR. [CR Doc. 79:
Objections to PSR]. In pertinent part, Petitioner objected to
the offense level computation, including the firearm
enhancement based on Petitioner's assertions that she did
not use the bedroom in which the firearm was found and had no
knowledge of its existence. Petitioner further argued that
she met the criteria of U.S.S.G. § 5C1.2 and should
receive the benefit of the safety valve. And, finally,
pursuant the objections regarding the offense level
computation, Petitioner argued that she should have been
deemed to have an Adjusted Offense Level of 26 and a TOL of
23. [Id. at 1-2]. Petitioner also objected to the
determination of her adult criminal convictions, contending
that one of her prior convictions for which a point was
applied related to the instant offense. Had this point not
been added, Petitioner submitted that her Criminal History
Category was I. [Id. at 2]. Finally, Petitioner
argued that, based on a TOL of 23 and criminal history
category of I, her guideline range for imprisonment should
have been 46 to 57 months. [Id.].
sentencing hearing, Petitioner reaffirmed that she understood
the charge against her, that she was guilty of the offense,
and that she was satisfied with her attorney's services.
[CR Doc. 111 at 3: Sentencing Transcript]. Petitioner stated
that she carefully reviewed the PSR with her attorney.
[Id. at 4]. Petitioner's attorney argued that
the two-level firearm enhancement should not apply because
the firearm was found in a closet in a bedroom located at the
opposite end of single-wide trailer Petitioner shared with
Church. Petitioner's attorney argued that the bedroom was
occupied by another individual and was not used by Petitioner
in any way. Further, counsel argued that Petitioner was
completely unaware of the existence of the firearm.
[Id. at 5-6]. Counsel also asserted that Petitioner
needed drug treatment and that having the firearm enhancement
would prevent her from receiving any credit toward her
sentence for participating in the drug treatment program.
[Id. at 7].
the Court overruled the Petitioner's objections and
concluded that the two-level firearm enhancement was
applicable, and that Petitioner's criminal history point
was accurately assessed. [CR Doc. 87: Statement of Reasons;
CR Doc. 111 at 7-8]. Defense counsel conceded that Petitioner
would not qualify for the safety valve due to her criminal
history points. [CR Doc. 111 at 8]. The Court found that
Petitioner's TOL was 27 and her Criminal History Category
was II, which yielded a guidelines range of 120 months due to
the mandatory minimum. [CR Doc. 87]. The Court, however,
varied downward from this range to a TOL of 21, resulting in
a guidelines range of 41 to 51 months, based on
Petitioner's substantial assistance. [Id. at 2].
The Court entered its Judgment on December 6, 2017, and
sentenced Petitioner to 41 months' imprisonment and a
term of supervised release of five years. [CR Doc. 86:
Judgment]. Petitioner did not file a direct appeal. On April
13, 2018, Petitioner timely filed the instant Section 2255
Motion to Vacate. The Government responded [Doc. 3] and
Petitioner replied [Doc. 3]. This matter is now ripe for
STANDARD OF REVIEW
federal prisoner claiming that her “sentence was
imposed in violation of the Constitution or the laws of the
United States, or that the court was without jurisdiction to
impose such sentence, or that the sentence was in excess of
the maximum authorized by law, or is otherwise subject to
collateral attack, may move the court which ...