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United States v. Brown

United States District Court, W.D. Virginia, Harrisonburg Division

September 14, 2016



          Michael F. Urbanski United States District Judge.

         Charles Franklin Brown, a federal inmate proceeding pro se, has filed both a motion and amended motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. Brown alleges numerous claims for relief, including an assertion that counsel provided ineffective assistance by failing to note an appeal when asked. By order entered June 23, 2016, the court found that it was unable to resolve the issue of whether counsel was ineffective for failing to file an appeal on the existing record and ordered an evidentiary hearing. Following that hearing, and after reviewing the record and briefs from Brown and the government, the court concludes that Brown has not stated any meritorious claim for relief under § 2255 and that the government's motion to dismiss must be granted.


         On August 1, 2013, a federal grand jury charged Brown in a three-count indictment with: possessing marijuana with the intent to distribute, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(D) ("Count One"); possessing a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1) ("Count Two"); and possessing a firearm while a convicted felon, in violation of 18 U.S.C. § 922(g)(1) ("Count Three"). Indictment 1 at 3-4, 5:13-cr-17, ECF No. 3. These charges stemmed from a car chase between Brown and the Virginia State Police when the police attempted to stop Brown's vehicle, and resulted in the discovery of $7, 630.00 in cash and 73.11 grams of marijuana in a backpack that Brown threw from the car along with a handgun, and $761 and .53 grams of marijuana on his person. Statement of Facts ¶ 1, 5:13crl7, ECF No. 41. On August 15, 2013, Brown was arraigned and appointed counsel. Brown was released on bond and a trial date was set for October 21, 2013. The government filed an information, pursuant to 21 U.S.C. § 851, seeking an enhanced sentence based on two prior Virginia felony drug convictions. Information 1 at 1, 5:13crl7, ECF No. 23. On October 1, 2013, defense counsel filed a motion to continue the jury trial and the court granted that motion setting the trial for December 16, 2013.

         On December 3, 2013, Brown and the government entered into a plea agreement in which Brown agreed to plead guilty to Counts One and Two. A plea hearing was scheduled for January 22, 2014.

         On December 5, 2013, a federal grand jury charged Brown and six codefendants in a separate indictment with conspiring to distribute and possess with the intent to distribute cocaine and 500 grams or more of methamphetamine, in violation of 21 U.S.C. § 846. Indictment 2 at 1- 2, 5:13cr30, ECF No. 3. On December 20, 2013, Brown was arraigned and released on bond. He was appointed counsel and a trial date was set for February 24, 2014. As a result of the new federal indictment, the court canceled the guilty plea hearing in the prior case (5:13-cr-00017).

         Early in 2014, Brown retained counsel, who substituted as counsel of record in both cases. The government filed a § 851 information in the second case (5.T3-cr-00030), seeking an enhanced sentence based on Brown's two prior felony drug convictions. Information 2 at 1, 5:13cr30, ECF No. 108. Defense counsel requested, and on January 6, 2014, the court granted a motion to continue the trial and set a new trial date for May 12, 2014. On April 22, 2014, the trial date again was continued on defense motion to July 21, 2014.

         On July 1, 2014, Brown entered into a new plea agreement involving both cases pursuant to Rule 11(c)(1)(C), in which he pleaded guilty to Count Two of the first indictment, charging him with possessing a firearm in furtherance of drug trafficking activities, and Count One of the second indictment, charging him with participation in a drug trafficking conspiracy. Plea Agree. 2 at 1-2, 5:13cr30, ECF No. 234. The plea agreement provided for an agreed-upon sentence of 216 months. Pursuant to the plea agreement, the government agreed to dismiss the § 851 enhancement and the remaining counts. Brown agreed to waive the right to appeal and collaterally attack the judgment and sentence, except for claims of ineffective assistance of counsel.

         On July 22, 2014, at the guilty plea hearing, both defense counsel and the government requested that the original plea agreement be withdrawn. Plea Hr'g Tr. 2-3, 5:13cr30, ECF No. 385. Defense counsel stated that he had reviewed possible defenses with Brown and discussed various options going forward including going to trial and pleading guilty. Id. at 11. Brown affirmed that he had received a copy of the second plea agreement, read it, reviewed every page with counsel and discussed the pros and cons. Id. at 12-13. Brown affirmed that he was "fully satisfied with the advise and representation [his attorney] ha[d] given [him] in this case." Id. at 29.

         The government reviewed the essential terms of the plea agreement on the record, noting that it was a binding plea under Rule 11(c)(1)(C), requiring a 216 month sentence. Id. at 14-15. The government noted that for Count Two, possessing a firearm in furtherance of a drug trafficking crime, Brown faced a mandatory sentence of five years' imprisonment to be served consecutively to any other sentence imposed. Id. at 15. The government also explained that Brown faced a mandatory minimum of 20 years and maximum of life for the conspiracy count with the § 851 enhancement. Id. at 16. Brown affirmed that he agreed with the terms of the plea agreement and wanted the court to accept it. Id. at 19. The court reviewed the elements of the charges against Brown, noting that for Count Two, the government would have to prove that he committed a drug trafficking crime and used or carried a firearm in furtherance thereof, and for Count One, that two or more people agreed to engage in drug-related crimes, that Brown knew of the conspiracy, knowingly and voluntarily participated in it, and that it was reasonably foreseeable to Brown that the conspiracy involved 500 grams or more of a mixture and substance containing methamphetamine. Id. at 20-21. Brown affirmed that he understood all of the elements that the government would have to prove. Id. at 21.

         Brown affirmed his understanding that by pleading guilty, he gave up his right to appeal and to collaterally attack his sentence:

You give up your right to appeal except for any matter which cannot be waived as a matter of law. Now I can tell you that this plea agreement of 216 months is within the Court's power to impose because the Court can impose a sentence in this case of up to life in prison. So if I decided to accept the plea agreement and impose a sentence of 216 months, you would have no right to appeal that under this waiver of your right to appeal set forth in the plea agreement.

Id. at 27-28. Brown affirmed that no one had made any promises to him other than those contained in the Plea Agreement to cause him to plead guilty and that no one had coerced him to plead guilty. Id. at 19. The court found that Brown was fully competent and capable of entering an informed plea and that he was aware of the nature of the charges against him and the consequences of his plea. Id. at 37-38. The court took the matter under advisement pending preparation of a Presentence Investigation Report ("PSR") in anticipation of sentencing. Id. at 38.

         Counsel filed a sentencing memorandum requesting that the court accept Brown's plea and sentence him to 216 months. Sent. Mem. at 14, 5:13cr30, ECF No. 327. Counsel noted, however, that Brown objected to his criminal history score which Brown calculated to be a category II, with an offense level of 35 resulting in an advisory guideline range of 188 to 235 months for the distribution offense. Id. at 2. Counsel argued that Brown should not be classified as a career offender because his two prior drug convictions were part of the same conduct and conspiracy for which he was being sentenced in federal court. Id. at 11-12. The government responded in a sentencing memorandum arguing that Brown's categorization as a career offender was appropriate because his two prior drug convictions occurred in 1998, before the drug conspiracy began, which lasted from 2001 to 2013. Gov't Sent. Mem. at 10-11, 5:13cr30, ECF No. 328.

         The PSR recommended a base offense level of 38 because it concluded that the conspiracy involving more than 15 kilograms of methamphetamine, pursuant to United States Sentencing Guideline ("U.S.S.G.") § 2D 1.1 (2013). PSR ¶ 27, ECF No. 332. The PSR also recommended that Brown be classified as a career offender, which carries a base offense level of 37, but because the base offense level for his offense conduct was greater, the career offender base offense level did not apply. U.S.S.G. § 4B1.1. Brown received a three-point reduction for acceptance of responsibility, for a total offense level of 35, with a criminal history category of VI, which resulted in a guideline imprisonment range of 292 to 365 months with an additional 60-month consecutive sentence as a result of the weapons conviction. Id. ¶¶ 65, 66, 67. Neither the government nor defense counsel filed any objections.

         A sentencing hearing was held on November 5, 2014. At the hearing, defense counsel withdrew the objection raised in his sentencing memorandum regarding Brown's career offender status and criminal history score. Sent. Hr'g Tr. at 4, 5:13cr30, ECF No. 384. Brown stated to the court that he wanted the court to accept the plea agreement and sentence him to 216 months. Id. at 24. The court accepted the plea and sentenced Brown to 156 months on Count One of 5:13cr30 and 60 months on Count Two of 5:13crl7, to run consecutively, for a total of 216 months. Id. at 26. Brown did not appeal.

         On August 4, 2016, the court held an evidentiary hearing regarding Brown's claim in his § 2255 motion that counsel failed to note an appeal on his behalf. At the hearing, Brown testified that he talked to counsel directly after his sentencing hearing and asked counsel to appeal. According to Brown, counsel responded that Brown had waived his right to appeal. Brown sent a number of letters to his counsel following sentencing, but admitted at the evidentiary hearing that he never requested in writing that counsel note an appeal. Brown testified that he had wanted counsel to appeal some issues that counsel did not address at sentencing, such as his career offender status, but also stated that he understood that he had waived the right to appeal by pleading guilty.

         Brown's counsel also testified at the evidentiary hearing. Counsel stated that Brown never requested that he file an appeal at any time. He testified that after sentencing, Brown did not mention an appeal, but thanked him for his representation and then Brown briefly talked to his father before being led out of the courtroom. Counsel further testified that he had gone over the plea agreement in detail with Brown, that from his perspective Brown knew that he was giving up his right to appeal by pleading guilty and that he had no reason to believe that Brown would want to file an appeal because he did not believe that Brown had any meritorious grounds for an appeal. In response to a letter from Brown which did not request that counsel file an appeal, counsel wrote, "As we previously discussed I don't believe that there are any appealable issues." § 2255 Mot. Ex. J at 3, 5:13cr30, ECF No. 397-11.


         To state a viable claim for relief under § 2255, a petitioner must prove: (1) that his sentence was "imposed in violation of the Constitution or laws of the United States;" (2) that "the court was without jurisdiction to impose such a sentence;" or (3) that "the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." 28 U.S.C. § 2255(a). Brown bears the burden of proving grounds for a collateral attack by a preponderance of the evidence. Jacobs v. United States, 350 F.2d 571, 574 (4th Cir. 1965).


         Criminal defendants have a Sixth Amendment right to effective legal assistance. Strickland v. Washington. 466 U.S. 668, 687 (1984). The proper vehicle for a defendant to raise an ineffective assistance of counsel claim is by filing a § 2255 motion. United States v. Baptiste. 596 F.3d 214, 216 n.l (4th Cir. 2010). However, ineffective assistance claims are not lightly granted; "[t]he benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the [proceeding] cannot be relied on as having produced a just result." Strickland, 466 U.S. at 686. Accordingly, in order to establish a viable claim of ineffective assistance of counsel, a defendant must satisfy a two-prong analysis showing both that counsel's performance fell below an objective standard of reasonableness and establishing prejudice due to counsel's alleged deficient performance. Id. at 687. When considering the reasonableness prong of Strickland, courts apply a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689; Gray v. Branker. 529 F.3d 220, 228-29 (4th Cir. 2008). Counsel's performance is judged "on the facts of the particular case, " and assessed "from counsel's perspective at the time." Strickland. 466 U.S. at 689, 690.

         To satisfy the prejudice prong of Stickland, a defendant must show that there is a reasonable probability that, but for counsel's unprofessional error, the outcome of the proceeding would have been different. Id. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. Brown's claims of ineffective assistance of counsel do not satisfy Strickland's stringent requirements.

         1. Speedy Trial

         Brown first claims that he received deficient representation because counsel failed to assert a violation of his speedy trial rights under 18 U.S.C. § 3161 and the Sixth Amendment. Brown was first indicted in case 5:13crl7 on August 1, 2013. He pleaded guilty to the second plea agreement on July 22, 2014. Accordingly, Brown argues that he faced a 356-day delay ...

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