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Foster v. United States

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

May 31, 2017

LYNCE P. FOSTER, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION

          J. RONNIE GREER UNITED STATES DISTRICT JUDGE

         Before the Court is Petitioner's supplemented pro se motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 [Doc. 184 (original petition); Doc. 188 (supplement); Doc. 196 (amendment)]. The United States responded in opposition to the original § 2255 motion on September 24, 2015, [Doc. 186], and the supplement on June 30, 2016, [Doc. 191]. Petitioner replied to both of those responses [Docs. 187, 192]. For the reasons discussed below, Petitioner's supplemented § 2255 motion will be DENIED and DISMISSED WITH PREJUDICE.

         I. BACKGROUND

         Between January 2005 and March 2006, Petitioner led a conspiracy to distribute cocaine in and around Morristown, Tennessee [Presentence Investigation Report (PSR) ¶ 8]. One of the conspiracy's sources of cocaine was Mexican drug dealer Jario Campos [Doc. 150 at. 150].

         On January 29, 2006, Petitioner-armed with a semi-automatic pistol-and five of his co-conspirators kidnapped and robbed Campos [Doc. 149 at 10-11, 24-26]. Petitioner personally took nine ounces of cocaine from Campos and beat Campos until he revealed the location of his stash house [Id. at 25-27, 53-54; Doc. 150 at 155-156; PSR ¶ 9]. He then ordered co-conspirator Buddy Treece to retrieve any drugs and money stored at the stash house [Doc. 149 at 27-32].

         Later that evening, Treece provided Petitioner with one kilogram of cocaine and two pounds of marijuana recovered from Campos's stash house [Id. at 32-33; PSR ¶ 9], but did not give Petitioner any of the drug money that he had found [PSR ¶ 9].

         Petitioner suspected that Treece had withheld money and, a few days later, went to Treece's trailer to confront him [Doc. 149 at 33-36; Doc. 150 at 45]. Petitioner pulled out a semi-automatic pistol, fired it at Treece, and demanded that he give Petitioner any money found in the stash house [Doc. 149 at 34-35, 55; Doc. 150 at 45-46]. When Treece continued to pretend that he had not found any money, Petitioner ordered other co-conspirators to physically assault and rape Treece's girlfriend, Brittany Sopshire [Doc. 140 at 13-17; Doc. 149 at 35-36, 62, 129-130; Doc. 150 at 6-7].

         Petitioner forced Sopshire to drive him to Nashville, Tennessee, where he distributed some of the cocaine stolen from Campos [Doc. 149 at 106-107, 131; Doc. 150 at 7-8, 49-50]. After releasing Sopshire, Petitioner obtained a truck of his own and returned to Morristown to distribute more cocaine and to collect the money from Treece [Doc. 149 at 104-110; Doc. 150 at 51-54].

         On February 5, 2006, while Petitioner was driving around Morristown, a police car pulled up behind his truck [Doc. 150 at 54-55]. Afraid that the police car would pull him over, Petitioner abandoned the truck, leaving behind a semi-automatic pistol and over two hundred grams of the cocaine that he had stolen from Campos [Id.; Doc. 149 at 128-129]. Police subsequently discovered both items inside Petitioner's abandoned truck [Doc. 150 at 107-109].

         Officers charged Petitioner with three offenses occurring on or around February 5, 2006: possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C); possession of a firearm in furtherance of that drug trafficking offense, in violation of 18 U.S.C. § 924(c); and possession of a firearm as a felon, in violation of 18 U.S.C. § 922(g)(1) [Doc. 1]. After learning about the armed robbery of Campos, the grand jury issued two superseding indictments which added a 21 U.S.C. § 841(b)(1)(C) cocaine possession charge and corresponding 18 U.S.C. § 924(c) charge for the January 29, 2006 incident and a 21 U.S.C. § 841(b)(1)(B) cocaine conspiracy charge for the entire timeframe of the conspiracy [Doc. 42 (first superseding indictment); Doc. 83 (second superseding indictment)].

         Despite multiple plea offers, Petitioner consistently refused to accept responsibility; instead, he insisted on proceeding to trial and was convicted as charged in the second superseding indictment [Doc. 113]. He faced statutory penalty ranges of five to forty years' imprisonment for the two drug offenses, up to ten years' imprisonment for the § 924(c) offense, and twenty-five years up to life imprisonment for the second § 924(c) offense [PSR ¶ 86]. Based on two prior Tennessee convictions for aggravated robbery, [Id. ¶¶ 48, 49], and one prior Tennessee drug conviction, [Id. ¶ 53], the United States Probation Office deemed Petitioner to be a career offender under Section 4B1.1 of the United States Sentencing Guidelines [Id. ¶ 37]. This Court imposed an aggregate sentence of 662 months: concurrent terms of 262 months' imprisonment on the drug conspiracy charge and January 29, 2006 drug possession charge and 120 months' imprisonment on the February 5, 2006 drug possession charge and § 922(g) charge, followed by consecutive terms of 60 and 300 months' imprisonment, respectively, for the two § 924(c) charges [Doc. 155].

         Petitioner appealed, and the Sixth Circuit found that two of his convictions-those for the February 5, 2006 drug possession offense and the February 5, 2006 § 924(c) offense-should be vacated on double jeopardy grounds because Petitioner had only committed one continuous possession with intent to distribute offense and one § 924(c) offense in connection with the same. United States v. Foster, 765 F.3d 610, 613 (6th Cir. 2014). Accordingly, the Sixth Circuit vacated those convictions and the sentences associated therewith and remanded the case for this Court to issue an amended judgment. Id. at 615. On December 9, 2014, this Court amended the judgment and imposed a new aggregate sentence of 322 months: concurrent terms of 262 months' imprisonment on the drug conspiracy charge and January 29, 2006 drug possession charge and 120 months' imprisonment on the § 922(g) charge, followed by a consecutive term of 60 months' imprisonment for the remaining § 924(c) charge [Doc. 182 (amended judgment)].

         On June 26, 2015, the Supreme Court held that the residual provision of the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), was unconstitutionally vague in Johnson v. United States, 135 S.Ct. 2551 (2015). On August 24, 2015, Petitioner filed a timely petition with eight grounds for collateral relief, none of which mentioned Johnson [Doc. 184]. Nine months later and less than one year after the Supreme Court decided Johnson-on May 16, 2016, Petitioner filed a timely supplement challenging his career offender status in light of that decision [Doc. 188]. He recently filed an amendment citing Mathis v. United States, 136 S.Ct. 2243 (2016) [Doc. 196].[1]

         II. SUPPLEMENTED PETITION FOR COLLATERAL RELIEF

         A. ...


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