The opinion of the court was delivered by: James H. Jarvis United States District Judge
This is a motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255 filed by petitioner Dean Travis Velix ("Velix"). For the following reasons, the § 2255 motion will be DENIED and this action will be DISMISSED.
This court must vacate and set aside Velix's conviction upon a finding that "there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack." 28 U.S.C. § 2255. To prevail under § 2255, Velix "must show a 'fundamental defect which inherently results in a complete miscarriage of justice,' or, an error so egregious that it amounts to a violation of due process." United States v. Ferguson, 918 F.2d 627, 630 (6th Cir. 1990) (quoting Hill v. United States, 368 U.S. 424, 428 (1968)).
Under Rule 8 of the Rules Governing Section 2255 Proceedings In The United States District Courts, the court is to determine after a review of the answer and the records of the case whether an evidentiary hearing is required. If the motion to vacate, the answer and the records of the case show conclusively that Velix is not entitled to relief under § 2255, there is no need for an evidentiary hearing. Baker v. United States, 781 F.2d 85, 92 (6th Cir. 1986).
Velix was originally indicted, on December 7, 1999, of conspiracy to possess with intent to distribute marijuana. [Criminal Action No. 3:99-cr-143, Court File No. 1, Indictment]. The indictment did not allege a specific drug amount, although the grand jury did reference 21 U.S.C. § 841(b)(1)(A)*fn1 , which is the penalty section for possession with intent to distribute more than 1000 kilograms of marijuana and which provides for a ten-year mandatory minimum sentence up to life imprisonment.
As a result of the Supreme Court decision in Apprendi v. New Jersey, 530 U.S. 466 (2000), and pursuant to a plea agreement, Velix pleaded guilty to an information charging him with conspiracy to possess with intent to distribute 100 kilograms or more of marijuana, in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(B). Section 841(b)(1)(B) is the penalty section for possession with intent to distribute more than 100 kilograms of marijuana and provides for a five-year mandatory minimum sentence up to 40 years of imprisonment. The government then moved to dismiss the previously filed indictment.
As part of his plea agreement, Velix agreed in writing to the following Stipulation of Facts:
Beginning in 1994, and continuing up to and including early April, 1997, Jesus Beltran, also known as Big Jessie, delivered, or caused to be delivered, marijuana to Steve Timothy Beddingfield and others in the Eastern District of Tennessee, the Western District of North Carolina, and the District of South Carolina. In addition to Jesus Beltran and Steve Beddingfield, members of the conspiracy included Jerry Lee O'Neal, Manuel Beltran, also known as Little Jessie, Frank Sullivan, David O'Neal, David Yarborough, Jeremy Russell King, Deborah Smith, Sandy Bryan, Donnie Bryant, Randy McClure, Danny Adams, Willard Joseph Guest, also known as Bud, Jorge Ramirez Ramos, Dean Travis Velix, Vickie Stinnett, Jesus Borunda, Jose Rodolpho Borunda, Tony Burnett, Glen Parris, Pete Lawson, and a Mexican male known as Pepe, also known as No Excuses.
Generally, Jesus and/or Manuel Beltran delivered, or caused to be delivered, marijuana from Mexico, sometimes by way of Florida, to Beddingfield in the Western District of North Carolina, the District of South Carolina, and the Eastern District of Tennessee; or to O'Neal in the Eastern District of Tennessee. However, O'Neal also took deliveries in the Western District of North Carolina, and Beddingfield arranged for O'Neal to receive partial shipments of marijuana in the Eastern District of Tennessee, which had already been delivered to Beddingfield in North Carolina. In addition to receiving marijuana from the Beltrans, Beddingfield also received marijuana from a man called Pepe who referred to himself as "No Excuses" because he accepted no excuses from anyone for failure to pay for marijuana. During 1994 and 1995, approximately 888 pounds of marijuana was delivered by Jesus Beltran, or at his direction, to Beddingfield and O'Neal. In 1996, approximately 1,710 pounds of marijuana was delivered, and until the conspiracy was dismantled by law enforcement in 1997, approximately 328 pounds had been delivered for a total of 2,926 pounds of marijuana.
The marijuana delivered to Beddingfield, which did not go to O'Neal, generally remained in various locations in the Western District of North Carolina, or in the District of South Carolina, specifically, in and around Greenville, South Carolina. However, portions of Beddingfield's marijuana were also stored in fifty-gallon barrels at a house owned by Beddingfield in Cosby, Tennessee. Beddingfield's marijuana would be distributed eventually to individuals such as Dean Travis Velix, Glenn Parris, and Tony Burnett. Although the majority of marijuana transactions involving the individuals immediately named above occurred in North Carolina or South Carolina, each of these individuals either traveled into the Eastern District of Tennessee to deliver or obtain marijuana, or received marijuana in North or South Carolina which was transported by O'Neal or other members of the conspiracy into those states from Tennessee. One such example of this occurred in approximately early April, 1996, when Velix (who was generally a transporter and stash house custodian), at Beddingfield's direction, obtained approximately eighty pounds of marijuana originally delivered by Pepe to Parris in Clinton, North Carolina. This marijuana in turn was delivered to Jerry O'Neal in Tennessee. In approximately December, 1996, Velix retrieved eighty pounds of Beddingfield's marijuana from Jerry O'Neal in Newport, Tennessee. O'Neal had been unable to sell this marijuana because of its poor quality. Velix and Parris then transported this marijuana to Randy McClure who eventually purchased approximately twenty pounds. Similarly, Pete Lawson also obtained marijuana from O'Neal in Tennessee and transported it into South Carolina for distribution to Tony Burnett.
Dean Velix became involved in the conspiracy in 1994 or 1995 when he began buying small amounts of marijuana from Beddingfield. There was usually quarter-ounce to pound amounts which Velix sold at work. Eventually, Velix began to transport marijuana for Beddingfield. Most of Velix's involvement was in Western North Carolina and upper South Carolina; however, Velix did conduct some transactions in the Eastern District of Tennessee as outlined above. In addition to transporting marijuana, Velix utilized his residence in Marietta, South Carolina, as a stash house for portions of Beddingfield's marijuana. Velix kept the marijuana in five-gallon plastic barrels alongside a dirt road near the residence and distributed it to other conspiracy members such as Tony Burnett.
Based upon the evidence presented in this case, the defendant is responsible for at least 100 kilograms, but less than 400 kilograms of marijuana, a Schedule I controlled substance. See U.S.S.G. § 2D1.1(c)(7). [Criminal Action No. ...