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Smith v. United States

United States District Court, E.D. Tennessee, Greeneville

March 16, 2017

BENJAMIN COLBY SMITH, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION

          Leon Jordan United States District Judge.

         Before the Court is Petitioner's pro se motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 [Doc. 108].[1] The United States responded in opposition on July 29, 2016 [Doc. 200]; Petitioner replied in turn on August 18, 2016 [Doc. 201]. For the reasons below, the petition will be DENIED and DISMISSED WITH PREJUDICE.

         1. BACKGROUND

         In August of 2014, Petitioner was obtaining methamphetamine in multiple-once quantities from a supplier in Georgia and giving that methamphetamine to co-defendants to distribute for him in the Morristown area of the Eastern District of Tennessee [Doc. 58 ¶ 5(b)]. On September 2, 2014, Petitioner was in possession of three ounces of methamphetamine and gave one of those ounces to a co-defendant to distribute in Morristown, Tennessee [Id. ¶ 5(c)]. That evening law enforcement pulled Petitioner and an unindicted co-conspirator over for a traffic stop and a search of the vehicle resulted in the seizure of approximately 45 grams of actual methamphetamine [Id. ¶ 5(d)]. After Petitioner's arrest, he made several recorded drug-related phone calls from the jail to arrange for co-defendants to travel to Georgia to meet with his supplier and bring back enough money to pay his bond [Id. ¶ 5(d)]. The co-defendants traveled to Georgia, met the source, and obtained methamphetamine to sell to raise money for Petitioner's bond [Id. ¶ 5(g)]. Law enforcement officers pulled those co-defendants over for a traffic stop on their way back to Tennessee and seized 51.60 grams of methamphetamine (37.31 actual grams) [Id.].

         A federal grand jury charged Petitioner with conspiring to distribute more than 50 grams of methamphetamine, in violation of 21 U.S.C. §§ 846 and 841(a)(1), (b)(1)(A) [Doc. 3].[2] In October of 2015, Petitioner pled guilty pursuant to a written Rule 11(c)(1)(C) plea agreement to the lesser included offense of conspiring to distribute at least 5 grams of actual methamphetamine in violation of 21 U.S.C. §§ 846 and 841(a)(1), (b)(1)(B) [Doc. 58 ¶ 1]. In his plea agreement, Petitioner stipulated that he conspired to distribute and was accountable for at least 35 grams of actual methamphetamine [Id. ¶ 5(h)]. The parties agreed that a sentence of 200 months' imprisonment followed by 8 years' supervised release would be appropriate [Id. ¶ 2(a)].

         Petitioner “knowingly and voluntarily waive[d] the right to file any motions or pleadings pursuant to 28 U.S.C. § 2255, ” except for claims of ineffective assistance of counsel or prosecutorial misconduct [Id. ¶ 11(b)]. He also waived his right to direct appeal as follows:

The defendant will not file a direct appeal of [his] conviction(s) or sentence with one exception: the defendant retains the right to appeal a sentence imposed above the sentencing guideline range determined by the Court or above any mandatory minimum sentence deemed applicable by the Court, whichever is greater.

[Id. ¶ 11(a)].

         During the plea colloquy on October 22, 2015, the Court verified that Petitioner was not suffering from mental illness or drug addiction, and that he understood the purpose of the hearing [Doc. 116 pp. 3-4]. The Court confirmed that Petitioner had ample time to discuss his case and the charges against him with counsel [Id. at 4]. Petitioner also affirmed that counsel advised him of the nature and meaning of the charges and every element of those offenses, and that counsel advised him as to any defense that he might have to the charges [Id. at 4-5]. When asked if his lawer explained the terms of the plea agreement to him, Petitioner replied: “Yes, Sir” [Id. at 5].

         After the Court advised Petitioner of the legal rights that he was giving up by pleading guilty and denying that anyone had threatened him or forced him in any way to plead guilty, the prosecutor summarized the plea agreement and the elements of the offense [Id. at 5-8]. Because the stipulation of facts was lengthy and fully signed and executed, the parties agreed that only a summary of those facts would be read aloud [Id. at 8-11]. Among other things, the prosecutor specifically mentioned the following: when Petitioner was arrested after a traffic stop on September 2, 2014, he was in possession of 45 grams of methamphetamine; that Petitioner directed other co-defendants to travel to Georgia to obtain additional methamphetamine from Petitioner's supplier; and that the co-defendants were thereafter found with multiple baggies of methamphetamine weighing 51.06 grams which contained 37.31 grams of actual methamphetamine, a small amount of marijuana, and an additional amount of methamphetamine hidden in the purse of one of the co-defendants [Id. at 10-11]. Petitioner stipulated that he had conspired to distribute and was accountable “for at least 35 grams but not more than 50 grams of methamphetamine, actual methamphetamine” [Id. at 11]. The Court asked Petitioner if he agreed with the United States' summary of what he did and Petitioner responded: “Yes, Sir” [Id.]. He stated that he was pleading guilty based on those facts and because he was, in fact, guilty [Id.].

         The Court reminded Petitioner that the statutorily authorized penalty for his offense was a term of no less than five years up to 40 years' imprisonment, but that, pursuant to his Rule 11(c)(1)(C) plea agreement, he would receive a term of 200 months' imprisonment followed by 8 years of supervised release [Id. at 12]. Petitioner swore that, knowing the penalties for his offense, he still wished to plead guilty [Id. at 12-15]. The Court concluded that Petitioner's plea was knowing and voluntary, accepted the plea, and adjudged him guilty [Id. at 15-16].

         In calculating the applicable Guidelines range, the United States Probation Office assigned Petitioner an initial base offense level of twenty-eight based on the quantity of drugs stipulated in the plea agreement [Doc. 81 ¶ 19]. Based on three prior Georgia convictions-robbery, possession of pseudoephedrine and tools to manufacture methamphetamine, and aggravated assault, the United States Probation Office deemed Petitioner to be a career offender under Section 4B1.1 of the United States Sentencing Guidelines with an enhanced base offense level of thirty-four [Id. ¶¶ 25, 32, 36, 37]. Petitioner, through counsel, objected to the use of his Georgia robbery conviction as a career-offender predicate [Id. ¶ 32; Doc. 97]. The United States Probation Office responded that Petitioner remained a career offender without that conviction because of his prior drug and aggravated assault convictions [Id.]. A three-level reduction for acceptance of responsibility resulted in a total offense level of thirty-one [Doc. 81 ¶¶ 26-28]. Combined with a criminal history category of VI, the total offense level yielded a range of 188 to 235 months [Id. ¶¶ 38-41, 64].

         At sentencing on January 26, 2016, counsel for Petitioner advised the Court that the 200-month sentence negotiated in the Rule 11(c)(1)(C) plea agreement stemmed from the belief that Petitioner was a career offender “based upon those two predicate convictions that seemed to lack meritorious challenge” [Doc. 115 p. 4]. The Court accepted the plea agreement and sentenced Petitioner to 200 months' imprisonment, to run consecutive to his then-pending parole violation cases in Ben Hill County, Georgia Superior Court, and in Bibb County, Georgia Superior Court [Id. at 6; Doc. 99]. Petitioner did not appeal and, as a result, his conviction became final for purposes of § 2255(f)(1) on February 9, 2016. See Sanchez-Castellano v. United States, 358 F.3d 424, 428 (6th Cir. 2004) (an unappealed judgment of conviction becomes final when the time for filing a direct appeal has elapsed); Fed. R. App. P. 4(b)(1)(A)(i) (“In a criminal case, a defendant's notice of appeal must be filed in the district court within [fourteen] days.”).

         The Supreme Court decided Johnson v. United States-invalidating the residual clause of the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)-on June 26, 2015. 135 S.Ct. 2551 (2015). Petitioner filed the instant pro se petition on June 20, 2016 [Doc. 108].

         II. STANDARD OF REVIEW

         The relief authorized by 28 U.S.C. § 2255 “does not encompass all claimed errors in conviction and sentencing.” United States v. Addonizio, 442 U.S. 178, 185 (1979). Rather, a petitioner must demonstrate “(1) an error of constitutional magnitude; (2) a sentence imposed outside the statutory limits; or (3) an error of fact or law . . . so fundamental as to render the entire proceeding invalid.” Short v. United States, 471 F.3d 686, 691 (6th Cir. 2006) (quoting Mallett v. United States, 334 F.3d 491, 496-97 (6th Cir. 2003)). He “must clear a significantly higher hurdle than would exist on direct appeal” and establish a “fundamental defect in the proceedings which necessarily results in a complete miscarriage of justice or an egregious error violative of due process.” Fair v. United States, 157 F.3d 427, 430 (6th Cir. 1998).

         III. ...


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