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United States v. Frost

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

March 3, 2017

CRYSTAL ANNE FROST, Defendant. Civil Action No. 7:16CV81193


          Hon. Glen E. Conrad Chief United States District Judge.

         Crystal Anne Frost, a federal inmate proceeding pro se, filed this action as a motion to vacate, set aside, or correct her sentence under 28 U.S.C. § 2255.[1] The government has filed a motion to dismiss, and the time allotted for Frost to respond has expired, making the matter ripe for consideration. For the reasons that follow, the government's motion to dismiss will be granted and Frost's motion to vacate will be denied.


         Frost was indicted by a federal grand jury on January 20, 2011. Count Two of the indictment charged Frost with distribution of heroin resulting in death or serious bodily injury, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C), and 18 U.S.C. § 2. That offense carries a mandatory minimum term of imprisonment of "not less than twenty years." 21 U.S.C. § 841(b)(1)(C). On September 27, 2011, Frost entered a plea of guilty to Count Two, pursuant to a written plea agreement under Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure. The parties "agreed that a sentence of 240 months of incarceration should be imposed" in Frost's case. Plea Agreement at 3, Docket No. 49.

         Prior to sentencing, the probation officer prepared a presentence report. Frost was assigned a base offense level of 38 under § 2D 1.1(a)(2) of the United States Sentencing Guidelines, which applies when a defendant is convicted under § 841(b)(1)(C) "and the offense of conviction establishes that death or serious bodily injury resulted from the use of the [controlled] substance." U.S.S.G. § 2D 1.1 (a)(2). Frost was also designated as a career offender under § 4B1.1 of the Sentencing Guidelines. However, because her base offense level under § 4B1.1 was less than the level determined under § 2D 1.1 (a)(2), the probation officer applied the higher base offense level of 38. See U.S.S.G. § 4B 1.1(b). Frost then received a three-point reduction for acceptance of responsibility, which resulted in a total offense level of 35. The probation officer then assigned Frost a criminal history category of VI, based on the career offender designation. Id. The total offense level, combined with the criminal history category of VI, resulted in an advisory guideline range of imprisonment of 292 to 365 months.

         Frost appeared for sentencing on December 20, 2011. At that time, the court adopted the presentence report and accepted the plea agreement. In accordance with the parties' agreement under Rule 11(c)(1)(C), the court sentenced Frost to a term of imprisonment of 240 months, the mandatory minimum sentence required by statute. The criminal judgment was entered on December 21, 2011. Frost did not appeal her conviction or sentence.

         On September 26, 2016, Frost moved to vacate her conviction and sentence under 28 U.S.C. § 2255, based, in part, on the United States Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015). Pursuant to Standing Order 2015-5, an attorney in the Office of the Federal Public Defender was appointed to represent Frost and provide supplemental briefing, if necessary, in light of Johnson. The attorney subsequently declined to file any additional pleadings and moved to withdraw from further representation. The court granted that motion on October 5, 2016, and directed the government to respond to the pending § 2255 motion.

         On November 1, 2016, the government moved to dismiss Frost's § 2255 motion as untimely. The court notified Frost of the government's motion, as required by Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), and gave her 21 days in which to file a response. As of this date, no response has been filed. The matter is now ripe for review.


         A one-year period of limitation applies to motions filed under 28 U.S.C. § 2255. 28 U.S.C. § 2255(f). The one-year period runs from the latest of the following dates:

(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action;
(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(4) the date on which the facts supporting the claim or claims presented could have been discovered through the ...

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