The opinion of the court was delivered by: Judge Greer
Candy Odom("petitioner" or "Odom"), a federal prisoner, has filed this "Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence . . ." [Doc. 414]. The United States has responded in opposition [Doc. 446] and the matter is now ripe for disposition.*fn1 The Court has determined that the motion and the record of prior proceedings in the case conclusively establish that the petitioner is not entitled to relief under § 2255 and, therefore, no evidentiary hearing is necessary. For the reasons which follow, the petitioner's § 2255 motion lacks merit, and the motion will be denied.
I. Procedural and Factual Background
Odom was one of 14 defendants indicted by the federal grand jury on September 23, 2003, in a 204 count indictment. Odom was charged only in Counts 2 and 204 of the indictment. Pursuant to a negotiated plea agreement, she pled guilty to Count 2 of the indictment, i.e. conspiracy to distribute and possess with the intent to distribute 50 grams or more of crack cocaine, on January 26, 2004. A Presentence Report ("PSR") was ordered. Based upon a total offense level of 35 and a criminal history category of II, petitioner's guideline range was 168 to 210 months of imprisonment. Petitioner was subject to a statutory minimum mandatory sentence of ten years up to a maximum sentence of life imprisonment pursuant to 21 U.S.C. § 841(b)(1)(A).
The United States moved for a downward departure based upon petitioner's substantial assistance. The government's motion was granted and the petitioner was sentenced on December 13, 2004, to a term of imprisonment of 132 months. Judgment was entered in the case on January 7, 2005. No direct appeal was filed and the judgment became final. On December 9, 2005, petitioner timely filed the instant motion.
At the time of the entry of petitioner's guilty plea, certain facts were stipulated by petitioner in connection with her plea:
Through the testimony of several witnesses, to include coconspirators, the government would demonstrate, beyond a reasonable doubt, that from approximately the month of January 2000, and continuing to on or about September 23, 2003, the defendant did knowingly, intentionally, and without authority conspire with at least one other person to distribute and possess with the intent to distribute 2,721 grams of a mixture or substance containing a detectible amount of cocaine base (crack), a Schedule II controlled substance.
During an interview with law enforcement agents on November 10, 2003, defendant Odom admitted to obtaining and distributing 2.7 kilograms of cocaine base (crack) during the course of the conspiracy. Specifically, defendant Odom admitted the following activity during the period of the conspiracy:
1. For a 30-day period, defendant Odom purchased an 8-ball of crack cocaine per day from an unindicted coconspirator.
2. For a five-month period, defendant Odom purchased an average of 3-5 grams per day from a coconspirator.
3. For a one or two-month period, defendant Odom purchases an 8-ball of cocaine three times per week from an unindicted oconspirator.
4. When a coconspirator was arrested and sent to North Carolina, defendant Odom and another individual took ten ounces of crack cocaine to North Carolina for him. Defendant Odom distributed a kilogram of cocaine for this same coconspirator during the course of the conspiracy.
5. When another coconspirator was arrested, defendant Odom was "holding 1/2 ounce of crack cocaine for him."
In addition to the admitted conduct, defendant Odom distributed six grams of crack cocaine to a confidential informant in a recorded and surveilled transaction.
The PSR also set out certain additional facts which were not included in the stipulation of facts and which were unobjected to by the defendant at the sentencing hearing:
According to Special Agent Ranier Drolshagen of the Federal Bureau of Investigation, agents became aware of the members of the conspiracy in early 2000. Through the use of informants and confidential sources, it was determined that co-defendants Garret Johnson, Gary McCrae, and Darryl McCrae, were obtaining cocaine base (crack) from North Carolina, and selling the drug to various distributors in the Johnson City area. These three individuals are charged with operating a continuing criminal enterprise. Agent Drolshagen verified that coconspirators had independently provided information that defendant Odom distributed over a kilogram of cocaine base (crack) for one co-defendant, and regularly obtained three to five grams daily over a six-month period. Defendant Odom also served as a distributor ...