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Gwynn v. United States

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

October 23, 2019

VANESSA GWYNN, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION

          Leon Jordan United States District Judge

         Before the Court is Petitioner Vanessa Gwynn's pro se motion to vacate, set aside, or correct her sentence under 28 U.S.C. § 2255 and her supporting memorandum brief [Docs. 1-2].[1]The United States has responded in opposition [Doc. 4]. Petitioner did not reply to the response and the time for doing so has now passed [Doc. 3, requiring any reply be filed within 30 days of the response]. In its response, the United States asserts that Petitioner is not entitled to relief because her claims have no merit or are controverted by the record.

         The Court finds the materials thus submitted, together with the record of the underlying criminal case conclusively show that Petitioner is not entitled to relief on the claims asserted in her motion. Accordingly, the Court will decide this matter without an evidentiary hearing. See Campbell v. United States, 686 F.3d 353, 357 (6th Cir. 2012). For the reasons discussed below, the Court will find that Petitioner's motion to vacate lacks merit and, thus, will DENY and DISMISS her § 2255 motion WITH PREJUDICE.

         I. PROCEDURAL AND FACTUAL BACKGROUND

         On August 11, 2015, a federal grand jury issued a 17-count indictment charging Petitioner and five co-defendants with various drug-trafficking and other crimes. Petitioner was charged with conspiracy to distribute and to possess with intent to distribute one kilogram or more of a mixture or substance containing a detectable amount of heroin, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846 (Count 1); conspiracy to distribute and to possess with intent to distribute oxycodone, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C), and 846 (Count 2); distributing 100 grams or more of a mixture or substance containing a detectable amount of heroin, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B) (Count 9); and possession with the intent to distribute oxycodone, a violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(c) (Count 10) [Doc. 3, No. 2:15-CR-89]. Petitioner was brought to this district from a detention facility in the State of Michigan pursuant to a writ of habeas corpus ad prosequendum and, upon her first appearance before the Court, was appointed local counsel [Docs. 26-27, 33-36, 40, No. 2:15-CR-89].

         On June 28, 2016, Petitioner entered into a plea agreement with the government, see Fed. R. Crim. P. 11(c)(1)(A) [Doc. 93, Case. No. 2:15-CR-89]. Petitioner agreed to plead guilty to Count 2, the oxycodone conspiracy, as charged in the indictment, with the remaining counts to be dismissed at sentencing [Id. at ¶¶ 1-2]. The Court draws the facts from those to which Petitioner stipulated, as contained in the factual basis in the plea agreement [Id. at ¶ 4].

         In the factual basis, Petitioner admitted that she was involved in a conspiracy to distribute multiple substances, including heroin and oxycodone, in the Eastern District of Tennessee [Id. at ¶ 4(a)]. The way the conspiracy functioned was that drugs obtained from a source in Detroit, Michigan were transported by co-conspirator couriers into the Eastern District and then the drugs were distributed further by members of the conspiracy [Id.]. Petitioner acknowledged that she acted primarily as a courier, transporting heroin and/or oxycodone provided to her by a co-defendant in Detroit to other conspirators in this district and elsewhere; that she would return to Michigan with cash proceeds from the drug trafficking activity; and that she would give those proceeds to the co-defendant who had provided her with the drugs [Id. at ¶ 4(b)].

         On August 31, 2014, a confidential source (CS) placed recorded calls to Petitioner and the co-defendant to arrange a pick-up of $3, 000, as payment for drugs [Id. at ¶ 4(c)]. The co-defendant told the CS to call Petitioner and tell her to come pick up the money and that he (the co-defendant) would be sending an unknown quantity of heroin and oxycodone with Petitioner on her return trip for delivery to the CS [Id.]. Petitioner told the CS that she would be at the CS's residence to pick up the money in early morning hours of September 1, 2014 [Id.].

         On that day, law enforcement agents surveilled the meeting between Petitioner and the CS, during which the CS gave Petitioner $3, 000 to deliver to the co-defendant in Detroit [Id. at ¶ 4(d). Petitioner told the CS that she should return with the drug shipment in the early morning hours of September 2, 2014 [Id.].

         On September 2, 2014, law enforcement agents again surveilled the meeting between Petitioner and the CS [Id. at ¶ 4(e)]. Petitioner was stopped by agents and found to have some 4.5 ounces of heroin and 359 Roxicodone pills [Id.]. Petitioner admitted that the drugs were obtained from the co-defendant in Detroit, that the pills were intended to be delivered to unindicted co-conspirators, and that the heroin was intended to be delivered to the CS [Id.]. Petitioner then placed a recorded telephone call to the co-defendant in Detroit and, during the conversation, discussed the traffic stop in which the drugs that he had provided her were discovered by law enforcement agents [Id. at ¶ 4(f)].

         For purposes of the plea agreement, Petitioner agreed that she should be held responsible for 128 grams of heroin (128 kilograms of marijuana equivalent) and for 359 pills of 30 milligrams of oxycodone (72 kilograms of marijuana equivalent), for a total drug quantity of 200 kilograms of marijuana [Id. at ¶4(g)]. Finally, the plea agreement provided that, in exchange for her guilty plea, Petitioner waived her right to file a direct appeal, with two exceptions, and her right to file a § 2255 motion or a collateral attack on her conviction or sentence, excluding claims of prosecutorial misconduct or ineffective assistance of counsel [Id. at ¶ 10(a) and (b)].

         On July 14, 2016, two weeks and a few days after entry of the plea agreement, Petitioner pled guilty to the oxycodone conspiracy charge in Count 2 in the indictment [Doc. 115, Minute Entry, Case. No. 2:15-CR-89]. Thereafter, the United States Probation Office issued a Presentence Investigation Report (PSR) to assist the Court in sentencing Petitioner [Doc. 134 (sealed), No. 2:15-CR-89].

         Using United States Sentencing Guideline (“USSG”) § 2D1.1 for § 846 offenses involving 100 kilograms but less than 400 kilograms of marijuana, the probation officer who prepared the PSR determined that Petitioner's base offense level was 24, see USSG 2D.1.1(c)(8) [Id. at ¶ 22]. Two levels were subtracted under USSG § 5C1.1 because Petitioner met the requirements of the safety valve, [2] USSG § 2D1.1(b)(1), for an adjusted offense level of 22 [Id. at ¶¶ 23, 27]. A two-level and a one-level reduction for acceptance of responsibility, USSG §§ 3E1.1(a) and (b), yielded a total offense level of 19, which, along with a criminal history category of I, resulted in an advisory Guidelines range of 30 months to 37 months [Id., ¶¶ 29-31, 36, 50]. The PSR noted that Petitioner's statutory maximum sentence was twenty years [Id. at ¶ 49].

         No objections to the PSR were made by either party, though defense counsel did file an impassioned sentence memorandum, pleading for a sentence that did not involve incarceration [Docs. 138, 171, No. 2:15-CR-89]. The government moved for a downward departure and an additional one-level for acceptance of responsibility (as noted, that additional point had already been accounted for in the PSR), and the Court granted the motions and dismissed the remaining counts upon motion of the government [Docs. 152 and 177-78, No. 2:10-CR-89]. The Court sentenced Petitioner to 27 months' imprisonment, below her Guidelines range, and set her sentence to be served concurrently with ...


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