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Page v. United States

United States District Court, E.D. Tennessee

June 22, 2018




         Pending before the Court is the motion of Qwindel Jerome Page (“Page” or “Petitioner”), a federal inmate, to vacate set aside, or correct sentence pursuant to 28 U.S.C. §2255, [Doc. 143], [1] as well as a motion to amend/supplement, [Doc. 151]. The United States has responded in opposition, [Doc. 147], and Petitioner has replied, [Doc. 157]. Petitioner's motion to amend is simply supplemental argument and the motion is GRANTED. Because the records and files of the case conclusively establish that Petitioner is not entitled to relief under §2255, no evidentiary hearing is necessary. For the reasons which follow, the Court finds Petitioner's §2255 motion meritless and it will be DENIED and DISMISSED with prejudice.

         I. Procedural and Factual Background

         A federal grand jury indicted Page on June 8, 2011, [Doc. 1]. A superseding indictment was returned on April 10, 2010, [Doc. 9]. Page was charged in three counts with conspiracy to distribute and possess with intent to distribute oxycodone in violation of 21 U.S.C. §§846 and 841(Count 1); possession of oxycodone with intent to distribute in violation of 21 U.S.C. § 841 (Count 2); and money laundering in violation of 18 U.S.C. §1956(h)(Count 3), [Id.]. After numerous extensions of time, motions and motion hearings, the case proceeded to a 3-day trial on November 13, 2012, [Docs. 87-89]. On the third and final day of trial, the jury returned a verdict of “guilty” on all three counts, [Doc. 91]. A presentence investigation report (“PSR”) was ordered and sentencing set for May 6, 2013, [Doc. 89], but later continued to June 12, 2013, [Doc. 104].

         The PSR was disclosed on March 3, 2013. The probation officer grouped Counts 1, 2, and 3 pursuant to USSG §3D1.2(c) and found a base offense level of 34 based on his determination that “the defendant was involved in the distribution of 3400.9 kilograms of marijuana [equivalent]” pursuant to USSG §2S1.1. [PSR ¶¶ 22, 23]. The offense level was increased by two because the Petitioner was convicted under 18 U.S.C. §1956(Count 3) pursuant to USSG §2S1.1(b)(2)(B), [Id. at ¶ 24]. Three levels were added pursuant to USSG §3B1.1 because Petitioner was a manager or supervisor (but not an organizer or leader), for a total offense level of 39, [Id. at ¶¶ 26, 31], which, when combined with Petitioner's criminal history category V, resulted in an advisory guidelines range of 360 months to life imprisonment, [Id. at ¶83].

         Petitioner objected to both the quantity of oxycodone pills for which he was held accountable for purposes of the base offense level and the manager/supervisor upward enhancement [Addendum to PSR]. The probation officer responded that Agent Cline, Internal Revenue Service, had conservatively estimated that, during the conspiracy, “the defendant wired or had wired” $227, 355 from Tennessee to Detroit. Witnesses at trial testified that Petitioner sold 80-milligram oxycodone pills for prices that varied from a low of $15 per pill to a high of $60 per pill. Page's own statement to law enforcement was that he was selling 80-milligram pills for $35 each in the winter of 2007 and $60 in the summer. Based on this testimony, the probation officer determined that Page sold the pills for an average price of $35.83 and that the $227, 355 represented the purchase of 6, 345 80-milligram pills during his involvement in the conspiracy, which, when converted to marijuana equivalent, resulted in a quantity of 3400.9 kg of marijuana (base offense level 34), [Id.]. As for the leadership enhancement, the probation officer cited trial testimony that Nikea Price was a street-level distributor for Page who testified that she wired money, and had others wire money, to Page. Joseph Patterson testified that he delivered oxycodone pills to Tennessee at the direction of Page on three occasions. [Id. at 2].

         The Court held a hearing on the objections. At the hearing, Petitioner's counsel, while not taking issue with the probation officer's methodology, argued that adding the five different prices referenced in the PSR and averaging to determine the pill price resulted in too low a pill price. Petitioner argued instead that the Court should give him the “benefit of the doubt” by using the highest pill price, i.e., $60, because it would yield the lowest quantity, which, in turn, would reduce the applicable guidelines range, [Doc. 129 at 6-7]. The Court sustained the Petitioner's objection in part, determining an average pill price of $47.50, resulting in a total offense level of 37, not 39, and an advisory guidelines range of 324 to 405 months of imprisonment, [Id. at 23-28]. The Court ultimately varied downward and imposed a sentence of 240 months, [Doc. 119], and judgment was entered on June 24, 2013, [Doc. 120]. A notice of appeal was filed the next day, [Doc. 121]. Two issues were raised on direct appeal: 1) whether Page was entitled to a bill of particulars, and 2) whether there was probable cause for Page's arrest. The Sixth Circuit affirmed the district court judgment on August 8, 2014, [Doc. 135], and this timely §2255 motion was filed on April 30, 2015. The following summary of the proof offered at trial is contained in the PSR: Brian Kilgore, Assistant Director of the Second Judicial District Drug Task Force, testified that on November 16, 2009, a buy-bust operation was completed that involved the purchase of oxycodone. The individual that was arrested agreed to cooperate because they knew several people who dealt oxycodone, one specifically being Qwindel Page. On the night of November 16, 2009, some phone calls were made to the defendant in an attempt to arrange a deal to purchase 100 (80 milligram) Oxycontin pills for approximately $5, 500. On November 17, 2009, an informant was wired with an electronic recording and monitoring device and instructed to proceed to the transaction at a predetermined location. Prior to the transaction taking place, officers followed the defendant to 504 Grey Avenue in Kingsport, Tennessee. Officers came in contact with the defendant, ultimately took him into custody, and located 98 (80 milligram) oxycodone pills in his possession. Agents obtained consent to search the residence and seized 48 (80 milligram) oxycodone pills from the bedroom of Nikea Price, the defendant's girlfriend, who was an oxycodone distributor for the defendant.

         On March 10, 2010, members of the Second Judicial District Drug Task Force conducted an undercover operation in Sullivan County, Tennessee. Agents utilized a confidential source (CS) to arrange a controlled purchase of oxycodone from Nikea Price. The CS was searched, wired with an electronic recording and monitoring device, and was given $99.00 in photocopied U.S. currency for the purchase of 18 oxycodone pills. Just before the transaction was to take place, Joseph Patterson and another individual went into a nearby McDonald's restaurant. The CS met with Price and exchanged the currency for the pills. Nikea Price was arrested. Joseph Patterson was found to be in possession of four (80 milligram) oxycodone pills and $2, 460 on his person. Of the money found, $990 was recorded money from the controlled purchase. Nikea Price was a street-level distributor for the defendant. Joseph Patterson delivered oxycodone from Michigan to Tennessee. Nikea Price testified she became involved in a relationship with the defendant in 2003 or 2004. She stated around 2007 she became aware the defendant was selling pills. Ms. Price revealed the defendant was making trips between Kingsport and Detroit weekly or bi-weekly until July of 2010. She testified that on many of the occasions when the defendant returned from Detroit, he would have a sandwich baggie full of pills. She estimated the baggies to contain 300 pills. All of the pills were 80 milligram oxycodone pills. Ms. Price testified the defendant sold the pills for $40-50 per pill. She stated if a large quantity was bought, he would sell them for $35 per pill. On occasion, he would charge more or less for the pills. She admitted to distributing the oxycodone pills at the direction of the defendant.

         Nikea Price also testified that she wired money from the drug proceeds, at the direction of the defendant. She stated this was an attempt to hide the nature of the proceeds. She estimated the defendant was selling 300 pills a month for approximately $12, 000. Ms. Price stated that after a period of time she started using different names to wire the money. Joseph Patterson testified he came to know the defendant around November of 2009. He stated he delivered oxycodone pills from Michigan to Tennessee at the direction of the defendant on approximately three occasions.

         Jimmy Cline, Special Agent with the Internal Revenue Service, testified that during the timeframe of the conspiracy the defendant wired a conservative estimate of $227, 355 from Tennessee to Detroit, Michigan. He stated that many of the wire transfers included the name of the defendant, Nikea Price, and many others.

         Dominique Coclough, Melissa Brandon, and Sabrina Gentry-Light all testified they knew Nikea Price, and they sent money wire transfers from Kingsport, Tennessee, to Detroit, Michigan. Derek Taylor testified he purchased oxycodone on several occasions and paid the defendant approximately $15-20 per pill.

         George Linen, Special Agent with the Bureau of Alcohol, Tobacco, Firearms, and Explosives, assigned to the Detroit office, testified he obtained a statement from the defendant on July 23, 2010. The defendant stated he began trafficking in drugs in 2002, after moving to Kingsport. He began trafficking cocaine, and in the summer of 2007, he began distributing oxycodone. Defendant Page traveled to Detroit in search of individuals who had legitimate prescriptions. The defendant began obtaining oxycodone from a family friend and eventually evolved into the defendant obtaining pills from several other individuals. Defendant Page indicated that during the summer of 2007 he paid individuals $20 per pill and sold each pill for $60 in Tennessee. By the winter of 2007, the defendant was paying $26 per pill and selling them for $35 per pill. In December of 2007, the family friend stole $5, 000 from the defendant, which ended their business dealings. In the beginning of 2008, the defendant was buying pills from any prescription holder he could find. In March of 2008, he began buying from an individual known as “Elephant Tooth.” The defendant admitted to distributing oxycodone pills, having others distribute oxycodone for him, and using money orders in relation to his drug trafficking. [PSR, ¶¶7-16].

         II. Standard of Review

         This Court must vacate and set aside Petitioner's sentence if it finds 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. Under Rule 4 of the Governing Rules, the Court is to consider initially whether the face of the motion itself, together with the annexed exhibits and prior proceedings in the case, ...

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