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Curry v. United States

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

December 12, 2019

JERITON LAVAR CURRY, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          MAX O. COGBURN JR. UNITED 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), Motions to Amend, (Doc. No. 5, 11), and Motion to Appoint Counsel, (Doc. No. 4).

         I. BACKGROUND

         Petitioner was indicted in connection with the armed robbery of a Kay Jewelers assistant manager as he dropped off the day's deposit at a bank drive-thru. The charges pertaining to Petitioner are: Count (1), conspiracy to commit Hobbs Act robbery (18 U.S.C. § 1951); Count (2) Hobbs Act robbery (18 U.S.C. § 1951 and 2); and Count (3), brandishing a firearm during and in relation to a crime of violence (18 U.S.C. § 924(c) and (2)). (3:16-cr-74, Doc. No. 3). Petitioner pled guilty to Count (1) in exchange for the Government's dismissal of the remaining counts. (Id., Doc. No. 125). In a written Plea Agreement, Petitioner admitted that he is “in fact guilty as charged in Count One (1).” (Id., Doc. No. 125 at 1). The Agreement states that “defendant's failure to fully comply with any provision of the Plea Agreement, attempt to withdraw the guilty plea or violation of any federal, state or local law, or any order of any court, including any condition of pre-trial or pre-sentence, or post-sentence release, is a breach of the Plea Agreement, ” which would absolve the United States of its obligations under the Plea Agreement. (Id., Doc. No. 125 at 1).

         The Plea Agreement sets forth the statutory penalty of a maximum of 20 years' imprisonment, a $250, 000 fine, or both, and not more than three years of supervised release. (Id., Doc. No. 125 at 2). The Plea Agreement further acknowledges that the advisory guidelines apply, that the sentence has not yet been determined, that any estimate of the likely sentence is a prediction rather than a promise, the Court has the final discretion to impose any sentence up to the statutory maximum, and the Court is not bound by recommendations or agreements by the United States and that Petitioner cannot withdraw his plea as the result of the sentence imposed. (Id., Doc. No. 125 at 2).

         In the Plea Agreement, the parties agreed to jointly recommend with regards to the U.S. Sentencing Guidelines:

a. The United States agrees that the defendant's entry of the plea is timely for purposes of U.S.S.G. § 3E1.1(b).
b. Notwithstanding any other recommendation herein, if the Court determines from the defendant's criminal history that U.S.S.G. § 4B1.1 (Career Offender) or U.S.S.G. § 4B1.4 (Armed Career Criminal) applies, such provision may be used in determining the sentence.
c. The parties agree that the defendant should receive a six (6)-level enhancement to his offense level pursuant to U.S.S.G. § 2B3.1(b)(2)(B).
d. The parties agree that the defendant should not receive an increase or decrease to his offense level pursuant to U.S.S.G. §§ 3B1.1 or 3B1.2.[1]
e. The parties agree that either party may seek a departure or variance from the “applicable guideline range” (U.S.S.G. § 5C1.1).
f. The United States will inform the Court and the probation office of all facts pertinent to the sentencing process and will present any evidence requested by the Court.

(Id., Doc. No. 125 at 2) (emphasis added).

         By entering into the Plea Agreement, Petitioner stipulated to the existence of a factual basis and agreed that “such Factual Basis 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 under 18 U.S.C. § 3553(a), unless the Factual Basis itself notes that the defendant's right to object to a particular fact(s) was explicitly reserved.” (Id., Doc. No. 125 at 4). Petitioner acknowledged the rights he waived by pleading guilty including the right to be tried by a jury, to be assisted by an attorney at trial, to confront and cross-examine witnesses, and not to be compelled to incriminate himself. (Id., Doc. No. 125 at 4). The Plea Agreement states that Petitioner discussed his appellate and post-conviction rights with his attorney and agreed to waive all such rights except for claims of ineffective assistance of counsel or prosecutorial misconduct. (Id., Doc. No. 125 at 5).

         A written Factual Basis sets forth the circumstances surrounding the robbery, including the fact that Petitioner's girlfriend was an employee of the Kay Jewelers store, that Petitioner instructed his girlfriend not to accompany the assistant manager to the bank for the the nightly deposit as usual on the date of the robbery, Petitioner arranged the robbery with co-defendant Reginald Tate, [2] Tate approached the assistant manager's vehicle at a bank drive-thru night deposit drop and demanded money while pointing a handgun at him, and Petitioner presented a share of the proceeds from the Kay Jewelers robbery to his girlfriend several days later. (Id., Doc. No. 126). The Factual Basis provides that “[t]he parties' agreement does not preclude either party from hereafter presenting the Court with additional facts which do not contradict facts to which the parties have agreed not to object and which are relevant to the Court's guideline computations, to 18 U.S.C. § 3553 factors, or to the Court's overall sentencing decision.” (Id., Doc. No. 126 at 1).

         A Rule 11 hearing came before Magistrate Judge Cayer on August 4, 2016. Judge Cayer accepted Petitioner's plea after conducting a thorough colloquy on the plea's knowing and voluntary nature. See (Id., Doc. Nos. 128, 200). Petitioner stated that he wanted the Court to accept his guilty plea to Count (1) after consulting with his attorney, that he understood that the charge carries a maximum penalty of 20 years' imprisonment, that he spoke to counsel about how the U.S. Sentencing Guidelines might apply to his case, that the Court would not be able to determine the applicable sentencing guidelines range until after the Presentence Investigation Report (“PSR”) has been prepared, that he may receive a sentence that is either higher or lower than the guidelines, and that he will be bound by his plea agreement is more severe than he expected or if the Court does not accept the Government's sentencing recommendation. (Id., Doc. No. 200 at 2-6). Petitioner specifically stated that he understood the parties' agreements with regards to sentencing recommendations. (Id., Doc. No. 200 at 8). He acknowledged the rights he was waiving by pleading guilty. (Id., Doc. No. 200 at 6-7).

         The prosecutor stated the terms of the Plea Agreement in open court, including the parties' joint recommendations about the Sentencing Guidelines. (Id., Doc. No. 200 at 8). The prosecutor noted that Petitioner knowingly and expressly waived any right to withdraw his guilty plea after it was accepted as well as his appellate and post-conviction rights except for claims of ineffective assistance of counsel or claims of prosecutorial misconduct. (Id., Doc. No. 200 at 9).

         The Court then confirmed Petitioner's understanding of the Plea Agreement's terms as follows:

THE COURT: Do you understand those to be the terms of your plea agreement and do you agree with those terms?
THE DEFENDANT: Yes.
THE COURT: Has the right to appeal your conviction and sentence been expressly waived in this plea agreement?
THE DEFENDANT: Yes.
THE COURT: Has the right to challenge your conviction and sentence in a post-conviction proceeding also been waived in the plea agreement?
(Counsel and defendant conferred.)
THE DEFENDANT: Yes.

(Id., Doc. No. 200 at 10).

         Petitioner stated that he read, understood, and agreed with the Factual Basis, that the plea was not the result of threats, intimidation, or force, and that he was not made any promises of leniency or a light sentence to induce him to plead guilty other than the terms of the Plea Agreement. (Id., Doc. No. 200 at 10).

         At the end of the hearing, the following transpired:

THE COURT: Have you had enough time to discuss with your attorney any possible defenses you may have to this charge?
THE DEFENDANT: No.
THE COURT: Well, that's a problem, sir, because I'm not going to be able to accept your plea if you need more time to talk to your attorney about any defenses you may have. And I'm not telling you how to answer the question. I'm just saying that that's a serious issue.
(Counsel and defendant conferred.)
THE DEFENDANT: Yes.
THE COURT: Well, let me rephrase the question, sir. What that question is asking you about is, have you talked to your lawyer about whether you could raise any defenses to this charge, whether you could present any evidence that shows that you're not guilty, whether you could identify any witnesses that would be helpful to you if you went to trial? Have you and your attorney talked about any evidence that may be helpful to you if you wanted to plead not guilty and go to trial?
(No response.)
THE COURT: You're saying no. All right. Well, I'm going to have to suspend it then, Ms. Okwara, and if you wanted to put it back on at another time, that's fine.
MS. OKWARA: Your Honor, may I have a minute, please?
THE COURT: Yes.
(Counsel and defendant conferred.)
MS. OKWARA: Your Honor, could you ask that again, please.
THE COURT: Well, I'm going to repeat the question to you, sir, but then I want you to tell me what your understanding is of what this question means.

         The question is, have you had enough time to discuss with your attorney any possible defenses you may have to this charge?

THE DEFENDANT: Yes.
THE COURT: Now, what do you understanding me to be asking you there?
THE DEFENDANT: I understand that if I didn't plead guilty, it could be serious. I could go to trial or more charges can be ...

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