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McCrae v. United States

July 10, 2008

GARY F. MCCRAE
v.
UNITED STATES OF AMERICA



The opinion of the court was delivered by: Judge Greer

MEMORANDUM OPINION

Gary F. McCrae ("petitioner" or "McCrae"), a federal prisoner, has filed a "Motion Under 28 USC § 2255 to Vacate, Set Aside or Correct Sentence By A Person In Federal Custody." [Doc. 1, 432]. The United States has responded in opposition [Doc. 6, 433] and the matter is now ripe for disposition. The Court has determined that the answer, transcripts and the record of prior proceedings in the case conclusively establish that petitioner is not entitled to relief under § 2255 and, therefore, no evidentiary hearing is necessary. Rule 8(a) of the Rules Governing Section 2255 Proceedings in the United States District Courts. For the reasons which follow, the petitioner's § 2255 motion lacks merit, and the motion will be denied.

I. Procedural and Factual Background

McCrae, along with more than a dozen other defendants, was indicted by the federal grand jury on September 23, 2003, on a host of drug offenses. McCrae entered a plea of guilty on May 24, 2004, to Count 1 of the 204 count indictment, which charged him with engaging in a continuing criminal enterprise involving the distribution of crack cocaine in violation of 21 U.S.C. § 848. A Presentence Report ("PSR") was ordered and provided to the parties. The probation officer found, pursuant to USSG § 2.D1.5(a), that petitioner's offense adjusted offense level was 42, less a three level reduction for acceptance of responsibility, resulting in a total offense level of 39. Based upon a total offense level of 39 and a criminal history category of V, petitioner's guideline range was 360 months to life imprisonment. Petitioner was subject to a statutory mandatory minimum sentence of twenty years.

As part of his negotiated plea agreement, petitioner stipulated that from approximately January, 2000, to on or about September 23, 2003, defendant engaged in a continuing criminal enterprise in which he was responsible for the distribution of at least 292 ounces of crack cocaine in the Eastern District of Tennessee. He further agreed that in furtherance of this continuing criminal enterprise he engaged in a continuing series of drug distribution activities resulting in significant monetary gain and that he occupied a position of leadership and organizer for at least five individuals who assisted him in criminal activity. In addition, the agreed factual basis provided as follows:

1. During the period charged, defendant McCrae distributed significant quantities of crack cocaine to various individuals in the Eastern District of Tennessee. Defendant McCrae organized a network of eight individuals to distribute crack cocaine for him.

2. During the period charged, defendant McCrae transported as much as 36 - 50 ounces of crack cocaine per week from North Carolina into the Eastern District of Tennessee. Defendant McCrae directed individuals to travel from the Eastern District of Tennessee to North Carolina to pick up multiple ounces of crack cocaine that they then transported back to Tennessee for further distribution. Two of these individuals have admitted to traveling to North Carolina to pick up supplies of crack cocaine two times per week for a three-month period where they picked up from nine to twenty-two ounces of crack cocaine per trip. Other individuals, acting at defendant McCrae's direction, assisted in breaking down and packaging the crack cocaine into distribution quantities.

3. Defendant McCrae directed at least three individuals to wire transfer drug proceeds to North Carolina to pay for crack cocaine. During the period charged, law enforcement agents documented 165 Western Union wire transfers totaling more than $100,000.00 that were sent to crack cocaine suppliers to pay for crack cocaine purchases or to pay for crack cocaine previously obtained. Additionally, defendant McCrae and others who were acting at his direction carried cash from the Eastern District of Tennessee to North Carolina to pay for crack cocaine. On occasion, defendant McCrae carried cash to the supplier in North Carolina.

4. Defendant McCrae utilized the residence of his assistants to process powder cocaine into crack cocaine. On one occasion defendant McCrae used an assistant's residence to cook a half-kilogram of cocaine into crack cocaine, resulting in multiple ounces as a final product.

No objections to the PSR were filed by either the petitioner or the United States. On December 3, 2004, the United States filed a motion pursuant to USSG § 5K1.1 for a downward departure based upon petitioner's substantial assistance. The motion was granted and McCrae was sentenced, on December 13, 2004, to a sentence of 288 months of imprisonment. Judgment was entered on January 7, 2005, and no direct appeal was filed. On December 19, 2005, petitioner timely filed the instant § 2255 motion.

II. Standard of Review

This Court must vacate and set aside petitioner's conviction upon a finding 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(b). Under Rule 8(a) of the Rules Governing Section 2255 Proceedings In The United States District Courts, the Court is to review the answer, any transcripts, and records of prior proceedings and any material submitted under Rule 7 to determine whether an evidentiary hearing is warranted.

When a defendant files a § 2255 motion, he must set forth facts which entitle him to relief. Green v. Wingo, 454 F.2d 52, 53 (6th Cir. 1972); O'Malley v. United States, 285 F.2d 733, 735 (6th Cir. 1961). "Conclusions, not substantiated by allegations of fact with some probability of verity, are not sufficient to warrant a hearing." Green, 454 F.2d at 53; O'Malley, 285 F.2d at 735 (citations omitted). A motion that merely states general conclusions of law without substantiating allegations with facts is without legal merit. Loum v. Underwood, 262 F.2d 866, 867 (6th Cir. 1959); United States v. Johnson, 940 F. Supp. 167, 171 (W.D. Tenn. 1996).

To warrant relief under 28 U.S.C. § 2255 because of constitutional error, the error must be one of constitutional magnitude which had a substantial and injurious effect or influence on the proceedings. Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (citation omitted) (§ 2254 case); Clemmons v. Sowders, 34 F. 3d 352, 354 (6th Cir. 1994); see also United States v. Cappas, 29 F.3d 1187, 1193 (7th Cir. 1994) (applying Brecht to a ยง 2255 motion). To warrant relief for a non-constitutional error requires a showing of a fundamental defect in the proceedings that resulted in a complete miscarriage of justice or an egregious error inconsistent with the ...


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