The opinion of the court was delivered by: R. Allan Edgar United States District Judge
Petitioner David Henley has filed a motion to vacate, set aside, or correct a sentence pursuant to 28 U.S.C. § 2255. [Court Doc. No. 4]. The Government opposes Henley's motion. [Court Doc. No. 6]. As stated infra, this court has concluded that a hearing is necessary on one of Henley's claims and that the rest of Henley's Section 2255 motion is without merit and will be DENIED.
On August 28, 2001, a United States grand jury sitting for the Eastern District of Tennessee, Chattanooga Division, returned a four-count indictment against Henley charging him with one count of conspiracy to distribute in excess of five hundred grams of a mixture and substance containing methamphetamine in violation of 21 U.S.C. § 846, two counts of intentionally using a telephone to facilitate a violation of 21 U.S.C. § 846 in violation of 21 U.S.C. § 843(b), and one count relating to his possession with intent to distribute in excess of fifty grams of a mixture and substance containing methamphetamine in violation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(B). [Court Doc. No. 12, Indictment].
The government filed a five-count superseding indictment on October 10, 2001. [Court Doc. No. 23]. The superseding indictment added a count of brandishing a handgun during and in relation to the conspiracy to distribute methamphetamine in violation of 18 U.S.C. §§ 924(c)(1)(A)(ii) and 2. Id. See also, Presentence Report ("PSR").
On February 12, 2002 the defendant appeared in this court for a jury trial. On February 15, 2001, the jury found Henley guilty on Counts One, Four and Five of the superseding indictment but acquitted the defendant on the count relating to brandishing a handgun. PSR. The jury also determined that the offense in Count One involved 500 grams or more of methamphetamine and that the offense in Count Five involved 50 grams or more of methamphetamine.
The PSR describes the following offense conduct: An investigation by the Drug Enforcement Administration (DEA) revealed that the defendant was significantly involved in the distribution of large quantities of methamphetamine. On April 11, 2001, Robert Walker was interviewed by DEA Task Force Officer (TFO) Mitchell Smith. Walker advised TFO Smith that the defendant was receiving 2-3 pounds of methamphetamine weekly or bi-weekly for distribution in the Chattanooga, Tennessee, area. Walker further stated that the defendant would drive to Atlanta to pick up the methamphetamine. Walker indicated that a significant portion of the methamphetamine obtained by the defendant was distributed by Bryan Sanders.
Bryan Sanders has known the defendant for about ten (10) years when they were both students at East Ridge High School in East Ridge, Tennessee. Sanders distributed methamphetamine he obtained from Henley for approximately a one (1) year period in 2000 and 2001. Henley fronted Sanders about eight (8) ounces of methamphetamine a week during this one (1) year period (52 weeks x 8 ounces/week = 416 ounces of 11.79 kilograms of methamphetamine mixture). Sanders estimated the defendant was earning about $32,000 per week from the sale of methamphetamine. On one (1) occasion, Sanders accompanied the defendant to a storage building on Bonny Oaks Drive in Chattanooga, and observed the defendant remove two (2) pounds of methamphetamine from behind a mattress.
According to Sanders, the defendant had several individuals in his drug distribution organization who were enforcers. Sanders identified Robert Walker and David Rhodes as two of these enforcers. Sanders also personally assisted the defendant assault Brett Oakley in the parking lot of a local restaurant for money owed to Henley for methamphetamine. Sanders was aware that Henley had also assaulted Chad "Duck" Brown and Larry Stone. . . .
Robert Walker fronted two (2) ounces of methamphetamine per week to Larry Stone, and Stone then sold the substance for Walker. Stone was aware that the defendant was Walker's source of methamphetamine. Stone had observed the defendant deliver 1/4-pound quantities of methamphetamine to Walker on several occasions (1/4-pound x 2 = 1/2 pound or .2 kilograms of methamphetamine mixture). Stone had also observed the defendant pick up large sums of cash from Walker on numerous occasions. . . .
In February 2000, Chad "Duck" Brown began purchasing methamphetamine from Larry Owens. Brown was aware that the defendant was Owens' source of methamphetamine. Owens was not providing Brown with the amounts of methamphetamine that Brown requested. As a result, Brown spoke to the defendant, and the defendant offered to handle deliveries of methamphetamine to Brown himself. . . . The defendant provided Brown with a total of 3 1/2 ounces of methamphetamine between September 2000 and November 2000 (3.5 ounces = 0.099 kilograms of methamphetamine mixture). . . . Brown owed the defendant about $2,000 for methamphetamine. In early November 2000, after Brown was involved in an automobile accident, Brown was contacted telephonically by Bryan Sanders, and Sanders invited Brown to Dorothy Turner's residence. Brown went to Turner's residence. While Brown was at Turner's residence, the defendant arrived at the residence "raising hell," and pulled a .38 caliber handgun from his front pocket and forced Brown to go outside. As Brown stood up, he observed Robert Walker behind him wearing a ski mask and holding a semiautomatic pistol in his hand. As they moved outside the residence, the defendant and Walker surrounded Brown, and the defendant began screaming and cursing at him about the money that he owed the defendant. The defendant then struck Brown in the face with his fist, and Walker struck Brown in the back of the head with the pistol. According to Brown, the defendant assaulted him again in February 2001 at a hotel in Chattanooga.
Sophan Luy testified that he went to Atlanta once a month for approximately one (1) year and picked up at least one (1) pound of methamphetamine each trip for the defendant. . . .
Richard "Buddy" Nealon had known the defendant for about five years, . . . Nealon purchased about one (1) ounce of methamphetamine from the defendant every other day for about one (1) year (52 weeks x 3 ounces/week = 156 ounces of 4.42 kilograms of methamphetamine mixture; however AUSA Perry Piper believes a conservative estimate of 2 ounces/week would be more appropriate based on the evidence, which results in a total of 2.9 kilograms of methamphetamine mixture). . . .
On July 3, 2001, Christie Croy was arrested after she delivered methamphetamine to a Tennessee Bureau of Investigation [Confidential Informant]. Croy agreed to cooperate with agents by making contact with the defendant to gain recorded conversations about narcotics or to ultimately facilitate a narcotics transaction with the defendant. . . .
On August 9, 2001, an officer of the Chattanooga Police Department was dispatched to 2119 Gunbarrel Road in Chattanooga in reference to an assault in progress. The officer arrived at the scene and spoke with the victim, Michael Ray Williams. Williams advised the officer that the defendant wanted to meet him near the restroom area at the location. Williams met the defendant, and they went into the restroom. Once inside the restroom, two (2) individuals that were with the defendant held Williams while the defendant headbutted Williams, causing a cut on Williams' forehead. Williams advised the officer that the defendant mentioned something about being in the newspaper and that Williams was a "rat." During his trial testimony, the defendant admitted he headbutted Williams.
On August 10, 2001, Croy placed a telephone call to the defendant and discussed the delivery of a package to the defendant. The package contained $2,400 in official state funds and four (4) ounces of methamphetamine (lab verified 117.4 grams). The defendant had previously been advised that the money and methamphetamine were contraband not seized from Bryan Sanders during the execution of a search warrant at Sanders' residence. The defendant advised that he would pick up the package after work. The defendant later telephoned Croy and advised her that he was en route to her residence. At about 5:30 p.m., the defendant arrived at Croy's residence with a black male passenger inside his car.
The defendant entered the residence alone, and took possession of the bag, at which time the defendant was arrested. At the time of his arrest, the defendant had a large knife (blade about 4 inches long) in his back pocket. A small quantity of marijuana was found in the defendant's vehicle. The defendant agreed to cooperate with agents. He waived his rights and stated that Sophan Luy was his source of methamphetamine prior to May 2000, when Luy was arrested. He stated an Asian male named "Scott" had been his supplier of methamphetamine since June or July of 2000. The defendant admitted that he received about six (6) pounds of methamphetamine over a period of one (1) year. The defendant provided agents with consent to search his residence, and the search uncovered about one (1) ounce of marijuana in a kitchen cabinet. . . .
PSR, 6-18. The PSR found Henley was responsible for a total of 14.989 kilograms of methamphetamine mixture based on coconspirator statements and/or trial testimony. Id. at 19. The PSR also recommended an enhancement for obstruction of justice based on Henley's untruthful testimony during the trial and during his suppression hearing. Id. at 21. The report also recommended that Henley be denied a downward adjustment for acceptance of responsibility because he "declined to provide a statement regarding the instant offense during the presentence interview" and he "testified at trial and denied involvement in the distribution and/or possession with intent to distribute methamphetamine." He further went to trial with a plea of not guilty. Id. at 22. The PSR set the base offense level at 36 due to the fact that the offense involved between 5 kilograms and 15 kilograms of methamphetamine mixture based on United States Sentencing Guideline ("USSG") § 2D1.1(c)(2). The PSR recommended an additional enhancement of 2 levels for Henley's use of a dangerous weapon pursuant to USSG § 2D1.1(b)(1). The report cited the evidence pertaining to Henley's use of a handgun while confronting Chad Brown, as well as the 4-inch blade knife found on his person at the time of his arrest. Id. at 26. The PSR also recommended a four-level enhancement due to the fact that Henley was a leader of the conspiracy. Id. at 28. The adjusted level recommended by the PSR was 44 points. Henley did not have a prior criminal history; therefore, his criminal history category was I. PSR, 38. The PSR noted that "based on a total offense level of 44 and a criminal history category of I, the guideline range for imprisonment is Life." Id. at 67.
During his sentencing hearing, the court noted that Henley's counsel made a number of objections to the conclusions in the PSR. Judgment Proceedings, Vol. I, July 31, 2002, p. 2. Defense counsel objected to the drug quantities found in the PSR due to the fact that the PSR based its quantities on information provided by non-witnesses at the trial. Defense counsel argued that these statements did not pass the minimum standard of reliability. The government responded to the objection by noting:
If the Court chooses not to include any drug amounts from statements of individuals that did not testify at trial, Sophan Luy's trial testimony (PSR 11) reflects that he traveled to Atlanta once a month for about one (1) year and picked up at least one (1) pound of methamphetamine each trip for the defendant. This amount was not used for guideline calculations to avoid double counting. The testimony of Luy alone attributes 12 pounds (5.44 kilograms) of methamphetamine to the defendant. The trial testimony of Sophan Luy regarding drug amounts places a base offense level of 36 on the defendant, which is currently the defendant's base offense level in the presentence report. Addendum to PSR.
Defense counsel further objected to the two-point enhancement relating to use of a dangerous weapon based on the lack of reliable proof and due to the fact that Henley possessed a knife upon his arrest. See id. The government responded that there were two incidents involving dangerous weapons and that the enhancement could be added based on either of the incidents. Defense counsel also objected to the enhancement pertaining to Henley's alleged leadership role pursuant to USSG § 3B1.1(a). Defendant argued that Henley did not control the alleged co-conspirators and that the enhancement recommendation was based on unreliable co-conspirator allegations. Defense counsel further objected to the enhancement for obstruction of justice. In response to Henley's argument, the government noted that "Application Note #4(b) under § 3C1.1 reflects that committing, suborning, or attempting to suborn perjury are examples of types of conduct to which an adjustment for obstruction of justice applies." Id.
During the sentencing this court addressed the various objections raised by Henley's counsel. In response to Henley's objection pertaining to the drug quantity at issue, the court recalled Sophan Luy's trial testimony regarding the amount of methamphetamine he obtained for Henley. It noted:
I'm confident based upon everything that I heard at trial that Mr. Henley here dealt in more than five kilograms of methamphetamine because what Mr. Luy says here, however you characterize it, is certainly borne out by the other testimony in the case. Because if we look at the other amounts here involved, you know, that he used, that were used in the presentence report, you got Mr. Sanders, his amounts. You've got Walker, his amounts. You've got Nealon, his amounts. You've got all of these, all of these show that the defendant was distributing a large amount of methamphetamine.
Now you can't count both what Luy says and what these other people say because it could be double counting. . . . And, of course, that's what the presentence report said. The presentence report originally didn't even use what Luy said. But I do think that, and I do have confidence in what Luy said, generally, because I do think it's borne out by the other facts in this case. . . . I respectfully, you know, find that the drug quantity is at least five kilograms of methamphetamine based upon all of the testimony in this case.
Judgment Proceedings, Vol. I, pp. 7-8.
With respect to the objection regarding the enhancement for carrying a dangerous weapon, this court determined that the enhancement was justified by the presence of the four-inch blade knife that Henley had upon his person upon arrest. See id., p. 10. Henley's counsel objected that Henley used the knife in his work as a cable installer. In addition, the court heard testimony at the sentencing hearing regarding Henley's use of a gun to threaten Chad Brown. Id. at pp. 14-18. Following testimony by a Task Force Officer associated with the case, the court determined:
Well, we've got two witnesses saying it. We got Sanders, we got Walker, who their stories are, the stories do mesh. What happened according to both of them at Tonya's house, and the gun was pulled on Brown. And it was a .38. And I do think that also meshes. And I know what else meshes is they didn't shoot the gun, but what he did, but was that he used a round. So I find by ...