United States District Court, W.D. Virginia, Harrisonburg Division
Michael F. Urbanski United States District Judge.
Lomax Robinson, a federal inmate proceeding pro se, has filed
a motion to vacate, set aside, or correct his sentence
pursuant to 28 U.S.C. § 2255. The government filed a
motion to dismiss, and Robinson responded, making this matter
ripe for consideration. After reviewing the record, the court
concludes that the government's motion to dismiss must be
granted and the § 2255 motion must be dismissed.
August 1, 2013, a federal grand jury returned a multi-count
indictment against Robinson and seven co-defendants. Robinson
was charged with conspiring to manufacture, distribute and
possess with intent to distribute 280 grams or more of a
mixture and substance containing a detectable amount of
cocaine base, in violation of 21 U.S.C. §§ 846 and
841(b)(1)(A) ("Count One"); knowingly and
intentionally distributing a mixture and substance containing
a detectable amount of cocaine base, in violation of 21
U.S.C. §§ 841(a)(1) and (b)(1)(C) ("Count
Fourteen"); knowingly and intentionally possessing with
intent to distribute 28 grams or more of a mixture and
substance containing a detectable amount of cocaine base, in
violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B)
("Count Fifteen"); and knowingly and intentionally
distributing and aiding and abetting in the distribution of a
mixture and substance containing a detectable amount of
cocaine base, in violation of 21 U.S.C. §§
841(a)(1) and (b)(1)(C) ("Count Eighteen").
One carried a mandatory sentence often years' to life
imprisonment. 21 U.S.C. § 841(b)(1)(A). On August 26,
2013, the government filed a notice, pursuant to 21 U.S.C.
§ 851, informing Robinson that he was subject to an
enhanced penalty of twenty years' to life imprisonment
based on prior Florida felony drug convictions. On July 27,
2007, Robinson was convicted in Florida state court of
sale/delivery of cocaine and possession of cocaine and was
sentenced to concurrent 36-month probation sentences.
Information 1, ECF No. 132-2. Following a probation violation
proceeding, Robinson received concurrent 18-month prison
sentences. Id., ECF No. 132-1.
January 7, 2014, Robinson pleaded guilty to Count One in an
amended written plea agreement pursuant to Federal Rule of
Criminal Procedure 11 (c)(1)(C). The plea agreement
established an agreed-upon sentence of 204 months (17 years),
a stipulated drug weight of 280 to 840 grams of cocaine base,
resulting in a base offense level of 32, and a four-level
enhancement to the base offense level for being an organizer
or leader of the criminal activity, pursuant to United States
Sentencing Guideline ("U.S.S.G.") § 3Bl.l(a).
The plea agreement did not call for Robinson to be sentenced
within a particular guideline range nor was his guideline
range evident from the document. In return, the government
agreed to dismiss the remaining counts as well as the §
the plea colloquy, defense counsel addressed his discussions
with his client about the plea agreement. As counsel
explained, the parties had discussed three versions of a plea
agreement, the first version being "a straight-up guilty
plea with mandatory minimums" and the last version a
plea under Rule 11(c)(1)(C) of the Federal Rules of Criminal
Procedure. Robinson noted that he understood the differences
between the two plea agreements, and that he agreed to the
terms of the amended plea agreement. Plea Hr'g Tr. 10-11,
ECF No. 397. The government noted that for Count One, without
the amended plea agreement, Robinson faced a mandatory
sentence of twenty years to life imprisonment, in light of
the § 851 enhancement. Id. at 12. In reciting
the terms of the plea agreement, the government also noted
that because the amended plea agreement was negotiated under
Rule 11(c)(1)(C), the court "may either accept or reject
the plea agreement in its entirety" but if the court
decided to reject the plea agreement, Robinson would be
allowed to withdraw his guilty plea. Id. at 13.
Robinson affirmed that he understood that if the court were
to accept the plea agreement, he would "get 17 years,
which is three years off the mandatory minimum, with the
851." Id. at 22. The court further explained:
In the pre-sentence report, probation is going to make some
recommendation to me as to determining what the guidelines
are. In fact, you and the government have agreed in the plea
agreement as to certain stipulations as to the guidelines;
that the crime involved more than 280 grams of crack cocaine
and that you were an organizer or leader. You agreed with the
United States as to that. I'm going to tell you I
don't have to agree with that. I can decide, based on the
facts, based on the law, that those stipulations aren't
appropriate and I can make different findings at sentencing
based on what I believe the law requires and what the facts
show. . . In other words, simply because you agree with the
government as to a guideline stipulation doesn't mean I
have to accept. But again, the bottom line in this Rule
1.1(c)(1)(C) plea is if I accept it, you know the sentence
you will get, and that will be 17 years.
Id. at 25-26. Robinson affirmed that he understood.
Id. at 26. He also stated that he understood that he
was giving up the right to collaterally attack his sentence
other than claims of ineffective assistance of counsel, and
that he was "fully satisfied with the advice and
representation provided to [him] by [his] counsel... in this
case." Id. at 30-31.
signed a written statement of facts, and the government
summarized it on the record at the plea colloquy: In 2012 and
2013, Robinson traveled approximately every three weeks from
Florida, where he purchased large quantities of drugs, to
Winchester, Virginia to distribute crack cocaine to both end
users and further distributors. Id. at 32. Robinson
directed customers to those distributors to whom he supplied
crack cocaine, when he was not available and customers would
call Robinson to ensure that Robinson's distributors had
crack cocaine available. Id. at 33, 35. Police
searched Robinson's hotel room, and seized 166 grams of
crack and $3, 263. Id., at 34. Robinson stated that
he agreed with the statement of facts. Id. at 36.
court found that Robinson was fully competent and capable of
entering an informed plea and that his guilty plea was
knowingly and voluntarily made; nonetheless, the court took
the plea and plea agreement under advisement pending the
Presentence Investigation Report ("PSR").
Id. at 39.
recommended a base offense level of 32 and applied a
four-level enhancement for being an organizer or leader of a
criminal activity that involved five or more participants, in
accordance with the amended plea agreement. PSR ¶ 28,
31. The PSR ultimately recommended a total offense level of
33, and a criminal history category of III, which resulted in
an advisory guideline range of 169 to 210 months. PSR ¶
60. Neither party filed any objections to the PSR.
defense counsel did file a sentencing memorandum arguing that
the court should sentence Robinson to the agreed-upon 17
years in the amended plea agreement as that punishment was
adequate to advance the cause of justice in this case and
provide adequate deterrence. Sent. Mem. at 5, ECF No. 328.
During the sentencing hearing, the court reviewed the
applicable advisory guideline range, but both parties agreed
that because Robinson entered the amended plea agreement
pursuant to Rule 11(c)(1)(C), it was not "based on the
guidelines." Sent. Hr'g Tr. at 14-15, ECF No. 370.
The court again asked Robinson if he wanted the court to
accept the guilty plea and sentence Robinson to 17 years.
Robinson said he wanted the court to accept the plea.
Id. at 15. The court adopted the findings in the
PSR, accepted Robinson's plea and sentenced him to 17
years. Id. at 26. In so doing, the court noted that
"Mr. Robinson was at the highest level in this
conspiracy, " that he brought the drugs into Virginia
from Florida, and that the statement of facts, to which
Robinson averred, supported a leadership role finding.
Id. at 26.
filed a pro se motion to reduce his sentence in light of
Amendment 782 to the United States Sentencing Guidelines. The
court denied the motion because Robinson was sentenced
pursuant to Rule 11(c)(1)(C) to an agreed-upon 17 years; his
sentence was not "based on a guideline range applicable
to the offense of conviction" so he was not eligible for
a sentence reduction. Order Denying Motion to Reduce Sentence
at 1, ECF No. 381. The Fourth Circuit affirmed. United
States v. Robinson. 627 F.App'x 267 (4th Cir. 20161
Robinson filed the § 2255 motion alleging two
ineffective assistance claims: (1) counsel failed to object
to the four-level enhancement for being a leader or organizer