United States District Court, W.D. Virginia, Big Stone Gap Division
H. Stevens, U.S. Attorney's Office, Abingdon, Virginia,
for United States; Trent Donya Antwine, Pro Se Defendant.
P. Jones United States District Judge
defendant, Trent Donya Antwine, proceeding pro se, filed a
Motion to Vacate, Set Aside, or Correct Sentence pursuant to
28 U.S.C. § 2255, based on ineffective assistance of
counsel claims. The government filed a Motion to Dismiss, and
Antwine responded, making the matter ripe for disposition.
After reviewing the record, I will grant the Motion to
and two codefendants were named in a multi-count Indictment.
Antwine was charged with conspiring to have an inmate of a
federal prison possess and obtain a prohibited object,
specifically heroin, in violation of 18 U.S.C. §§
1791(a)(2) and 1791(d)(1)(C) (Count Six); and conspiring to
knowingly and intentionally distribute and possess with the
intent to distribute heroin, in violation of 21 U.S.C.
§§ 841(a)(1), 841(b)(1)(C) and 846 (Count Seven).
(Indictment 3-4, ECF No. 6.)
pleaded guilty, pursuant to a written Plea Agreement, to
Count Seven and the government agreed to dismiss Count Six.
(Plea Agreement 1-2, ECF No. 58.) The Plea Agreement provided
that Antwine may be subject to a career offender enhancement,
pursuant to United States Sentencing Guideline
(“USSG”) 4B1.1. (Id. at 4.) Antwine
agreed to waive his right to collaterally attack his
conviction and sentence except for claims of ineffective
assistance of counsel. (Id. at 8.) Under the terms
of the Plea Agreement, the parties agreed to jointly
recommend a sentence of 84 months imprisonment. (Id.
guilty plea hearing, Antwine stated that he had had an
adequate opportunity to read and discuss the Plea Agreement
with counsel before signing it. (Change of Plea Hr'g Tr.
6, ECF No. 105.) Antwine further affirmed that he was
“fully satisfied with [his] lawyer's
representation.” (Id.) The prosecutor
summarized the terms of the Plea Agreement. (Id. at
7-11.) The prosecutor noted that Antwine stipulated that he
may be subject to the career offender enhancement.
(Id. at 9.) Both the prosecutor and I advised
Antwine that he faced a maximum statutory penalty of not more
than thirty years' imprisonment. (Id. at 7, 13.)
I also advised Antwine that his sentence may be different
than the estimate provided by his counsel and that I was not
bound by the recommended 84-month sentence provided by the
parties. (Id. at 14.)
affirmed his understanding that by pleading guilty, he gave
up his right to appeal and to collaterally attack his
sentence except as to matters that cannot be waived under the
law or that allege ineffective assistance of counsel.
(Id. at 11.) The prosecutor stated that the evidence
against Antwine included phone recordings between Antwine,
who was serving time in prison, and a civilian coconspirator
who agreed to travel to the prison to provide heroin for
distribution into the prison. (Id. at 17-18.)
Antwine did not dispute the facts against him, and stated
that he understood what the government would have to prove
for a jury to find him guilty. (Id. at 16, 18.) He
stated that he wanted to plead guilty because he was, in
fact, guilty. (Id. at 16.) I found Antwine to be
fully competent and capable of entering an informed plea and
determined that his guilty plea was knowing and voluntary.
(Id. at 20.)
Presentence Investigation Report (“PSR”)
recommended a total offense level of 15 and a criminal
history category of IV, resulting in a guideline imprisonment
range of 30 to 37 months. (PSR ¶ 56, ECF No. 111.) The
PSR did not classify Antwine as a career offender because
some of his prior convictions were subject to a staleness
limitation. (Id. at ¶¶ 27-40.)
sentencing hearing, the prosecutor informed the court that it
was the government's position that Antwine was not bound
by the terms of the Plea Agreement, including the
recommendation of an 84-month sentence, because the Plea
Agreement had been negotiated under the mistaken belief that
he was a career offender. (Sentencing Hr'g Tr. 2, ECF No.
106.) Antwine's counsel stated that Antwine did not want
to withdraw his plea because he was no longer bound by the
sentencing provision and that she would argue for a sentence
within the advisory guideline range of 30 to 36 months.
(Id. at 3.) I asked Antwine if he wished to direct
his counsel to withdraw his Plea Agreement, but Antwine
affirmed that he did not and wanted to proceed with
sentencing. (Id. at 5.) The prosecutor argued that
even though Antwine was not a career offender, the court
should consider him a “de facto career offender”
based on his extensive criminal past and sentence him to 84
months' imprisonment. (Id. at 6.) Defense
counsel argued for a within-guidelines sentence.
(Id. at 8.)
sentenced Antwine to 48 months' imprisonment, a variance
above the advisory guideline range. In so doing, I considered
the nature and circumstances of the crime, as well as the
history and characteristics of Antwine, the need for the
sentence imposed to both reflect the seriousness of the crime
and to protect the public from potential further criminal
conduct. (Id. at 11.) I also considered the advisory
guideline range, the need to impose a sentence that is
sufficient, but not greater than necessary, the
defendant's allocution and the arguments by counsel.
(Id.) I concluded that a variance above the
guideline range was appropriate because Antwine's
criminal history spanned thirty years and he pleaded guilty
to conspiring to introduce dangerous drugs into a maximum
security prison, which is a very serious offense and
“strikes at the heart of our corrections system.”
(Id. at 12.) Antwine did not appeal.
§ 2255 motion, Antwine alleges that counsel provided
ineffective assistance by (1) recommending that Antwine plead
guilty to Count Seven in the indictment when he was not
guilty of that crime; (2) refusing to investigate; (3)
failing to provide him with discovery, to review discovery or
to talk about the case with him; and (4) advising him that he
qualified as a career offender. Antwine also argues that I
erred by sentencing him above his guideline range. (§
2255 Motion 5-8, ECF No. 100.)
state a viable claim for relief under § 2255, a
defendant 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). Antwine bears the
burden of ...