The opinion of the court was delivered by: J. Ronnie Greer United States District Judge
Douglas Jamie Harris ("petitioner"), a federal prisoner, has filed this pro se motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. [Doc.1]. The petitioner has filed a memorandum in support of his motion. [Doc. 3]. The United States has responded in opposition to the motion [Doc. 7] and the petitioner has replied to the government's response. [Doc. 12]. The petitioner has also amended his § 2255 motion by providing the Court with various pages to be substituted for pages within his original memorandum. [Doc. 13]. The amendment does not change the nature of the relief sought by the petitioner.
After review of the files and records of this case, the Court has determined that the files and records conclusively establish that the petitioner is not entitled to relief under § 2255 and that, therefore, no evidentiary hearing is necessary. For the reasons which follow, the petitioner's motion pursuant to § 2255 lacks merit and will be DENIED.
On March 26, 2002, petitioner was charged along with six co-defendants in six counts of a thirty-one count indictment. Counts one, two and three of the indictment charged petitioner with conspiracy to distribute and possess with the intent to distribute various amounts of cocaine. Counts twelve through fourteen of the indictment charged petitioner with distribution of cocaine on three separate occasions.
On January 13, 2003, the petitioner entered a plea of guilty to count one of the indictment, i.e., conspiracy to distribute and possess with the intent to distribute 50 grams or more of cocaine base. The United States agreed to dismiss the remaining charges at sentencing. Filed along with the plea agreement was an "Agreed Factual Basis" in which the defendant stipulated to certain facts. The agreed factual basis reads as follows:
Through the testimony of several witnesses, to include co-conspirators, the government would demonstrate, beyond a reasonable doubt, that from approximately the month of February, 2001, and continuing to on or about March 26, 2002, the defendant did knowingly, intentionally and without authority conspire with at least one other person to distribute and possess with the intent to distribute approximately 3.5 ounces of a mixture or substance containing a detectible amount of cocaine base (crack), a Schedule II, narcotic controlled substance.
In furtherance of the conspiracy, defendant Harris distributed crack cocaine in the Eastern District of Tennessee.
During the course of the conspiracy, on two occasions defendant Harris distributed an approximate total of 3.1 grams of crack cocaine to cooperating witnesses. On each occasion the transactions were recorded and surveilled by law enforcement agents.
In a third transaction, defendant Harris sold $300 worth of crack cocaine to a cooperating witness. During the recorded and surveilled transaction defendant Harris stated that as soon as deal was completed, he and a co-defendant were traveling to New York to get three ounces of crack cocaine.
A presentence report was prepared and petitioner was held responsible for 88.2 grams of cocaine base, resulting in a base offense level of 32. This drug quantity was based solely upon the drug amounts involved in the specific transactions or petitioner's statements stipulated to in the agreed factual basis.*fn1 As a result of his guilty plea, petitioner was subject to a statutory mandatory minimum sentence of ten years pursuant to 21 U.S.C. § 841(b)(1)(A); however, petitioner qualified for a guideline sentence under the "safety valve" provision. After a two-level reduction for the safety valve and a three level reduction for acceptance of responsibility, petitioner's total offense level was 27, resulting in a guideline range of 70 to 87 months.
On July 14, 2003, petitioner was sentenced to a term of 70 months imprisonment and three years of supervised release. Judgment was entered on July 21, 2003. No direct appeal was taken by the defendant from the Court's judgment. Petitioner timely filed this motion to vacate, set aside or correct sentence on July 26, 2004.
This Court must vacate and set aside petitioner's sentence if it finds that "the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or 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 Under Rule 4 of the Governing Rules, the Court is to consider initially whether the face of the motion itself, together with the annexed exhibits and prior proceedings in the case, reveal the movant ...