United States District Court, W.D. Virginia, Abingdon Division
Jennifer R. Bockhorst, Assistant United States Attorney, Abingdon, Virginia, for United States; Tyree Lamar Slade, Pro Se Defendant.
JAMES P. JONES, District Judge.
The defendant, Tyree Lamar Slade, proceeding pro se, filed a Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255, alleging that he should be resentenced in light of United States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc). The government moved to dismiss, and Slade responded, making the matter now ripe for consideration. After review of the record, I find that under the terms of his valid Plea Agreement, Slade waived his right to bring this motion.
Defendant Slade and more than 50 other individuals were charged in this case with conspiracy to distribute more than 50 grams of cocaine base and 500 grams or more of cocaine in violation of 21 U.S.C. §§ 841(b)(1)(A) and 846. The government filed an Information pursuant to 21 U.S.C. § 851 notifying Slade of its intention to seek enhancement of his sentence based on three prior felony drug convictions under North Carolina law. On December 1, 2008, Slade pleaded guilty pursuant to a written Plea Agreement. In section B(2) of the Plea Agreement, Slade stipulated that he had been convicted of one of the prior felony drug offenses listed on the Information, and the government agreed not to seek an additional enhancement based on the two other listed offenses.
In section B(3) of the agreement, Slade also stipulated that the Career Offender guideline, U.S. Sentencing Guidelines Manual ("USSG") § 4B1.1 (2007), was applicable to him, and that he would not seek a sentence outside of this guideline range. In that section, he also stated that "I understand other guideline sections may be applicable to my case and the United States and I will be free to argue whether these sections should or should not apply." (Plea Agreement 4.) Finally, pursuant to sections C(2) and (3) of the Plea Agreement, Slade waived his right to appeal and "any right [he might] have to collaterally attack, in any future proceeding, any order issued in this matter." ( Id. 7-8.)
During the court's guilty plea colloquy, Slade affirmed that he could read and write and that he was not under the influence of medication, drugs, or alcohol, other than prescription medications for anxiety and depression which he affirmed did not interfere with his ability to understand the proceedings. Slade affirmed that he understood the Plea Agreement and its consequences, the elements of the charge, the maximum penalty to which he was subject, and the rights he was waiving by pleading guilty under the agreement. He indicated that he had initialed each page and signed the agreement to show that he had read it after an adequate opportunity to review it with his attorney.
The prosecutor then reviewed the agreement's terms, and Slade affirmed that he understood the terms. I asked Slade, "Are you pleading guilty because you are, in fact, guilty of this charge?" Slade answered, "Yes, sir." (Plea Hr'g Tr. 15, Dec. 1, 2008.) Slade also indicated that he did not contest any of the facts offered by the prosecutor in support of the guilty plea. I expressly asked Slade if he understood that was waiving his rights to appeal and to collaterally attack the judgment, and he affirmed his understanding. I found that Slade was competent to plead, that there was an independent factual basis for the plea, and the plea was knowing and voluntary. Accordingly, I accepted Slade's guilty plea.
The Presentence Investigation Report ("PSR") prepared prior to sentencing stated that Slade had sold at least 56.7 grams of crack cocaine, that he allowed coconspirators to use his residence to produce crack cocaine from powder cocaine, and that he had observed a coconspirator in possession of at least two kilograms of powder cocaine on three separate occasions, an amount equivalent to 5.28 kilograms of crack cocaine. On these facts, the PSR recommended that Slade be held responsible for at least 4.5 kilograms of cocaine base, resulting in a Base Offense Level ("BOL") of 38 under USSG § 2D1.1(c) (2007). This BOL exceeded the Career Offender BOL of 37 otherwise applicable to Slade under his Plea Agreement stipulation and USSG § 4B1.1(b)(1) (2007).
At the sentencing hearing, Slade's attorney objected to the higher Base Offense Level, but I overruled the objection and adopted the factual findings of the PSR. I found that with his Criminal History Category of V and a Total Offense Level of 35 (taking into account a reduction of three levels for acceptance of responsibility), Slade's advisory guideline range was 262 to 327 months. I sentenced him to 300 months imprisonment.
Slade appealed. The government did not move to dismiss the appeal pursuant to Slade's waiver of appeal contained in his Plea Agreement. Slade's appointed appellate attorney filed a brief with the court of appeals pursuant to Anders v. California, 386 U.S. 738 (1967), stating that he believed there were no meritorious issues for appeal, but raising at Slade's request a question as to whether the sentence imposed was procedurally and substantively proper. The court of appeals affirmed. United States v. Slade, 371 F.Appx. 421 (4th Cir. 2010) (unpublished). The mandate of the court of appeals was issued on April 16, 2010, and certiorari was not sought.
On October 5, 2011, I notified Slade and counsel for the government that I intended to reduce Slade's sentence from 300 months to 269 months pursuant to 18 U.S.C. § 3582(c)(2), based upon the retroactive application by USSG Amendment 750 of the recently-lowered crack cocaine sentencing guidelines. I gave the parties an opportunity to respond. Slade wrote to the court, stating his understanding that Amendment 750 had the effect of lowering the crack cocaine guideline range by two offense levels, which would give Slade an amended guideline range of 210 to 262 months. He asked to receive the § 841(b)(1)(A) mandatory minimum (based upon his Plea Agreement-reduced one prior felony drug offense) of 240 months. Instead, I found that Slade's stipulation to Career Offender status and the resultant BOL of 37 trumped the drug-weight guideline and left him eligible for no more than a one-level reduction under § 3582(c)(2) and Amendment 750. This calculation rendered an advisory guideline range of 235 to 293 months. On November 8, 2011, I reduced Slade's sentence from 300 months to 269 months. Slade did not appeal.
Several weeks later, on December 24, 2011, Slade wrote a letter to the court (ECF No. 2724), asserting that he had been improperly sentenced based on prior convictions under North Carolina law that no longer qualified as predicates for enhancement in light of Simmons, which had been decided on August 17, 2011. I construed this submission as a Motion to Vacate, Set Aside or Correct Sentence under 28 U.S.C. § 2255 and gave Slade an opportunity to object to this construction or submit a verified § 2255 motion raising his claim. See Castro v. United States, 540 U.S. 375, 383 (2003) (holding that before characterizing defendant's motion as a first § 2255 motion, a district court must advise defendant of resulting consequences). Slade elected to proceed and submitted a verified § 2255 motion, and the court required the government to respond.
The government then filed a Motion to Dismiss Slade's § 2255 motion as untimely and as waived pursuant to the Plea Agreement. The government also argued that Slade was not entitled to relief under Simmons because his sentence was calculated under the crack cocaine guideline, rather than the Career Offender guideline, and because his sentence was below the authorized statutory maximum. Reviewing Slade's submissions, I liberally construed them as raising a Simmons challenge to his status as a Career Offender upon which the court based its decision in November of 2011 to ...