United States District Court, W.D. Virginia, Charlottesville Division
Glen E. Conrad Chief United States District Judge
A. Francis, a federal inmate proceeding pro se, filed this
action as a motion to vacate, set aside, or correct his
sentence under 28 U.S.C. § 2255. The government has
filed a motion to dismiss, and the time allotted for Francis
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
Francis' motion to vacate will be denied.
23, 2014, Francis was named in a multi-count indictment
returned by a grand jury in the Western District of Virginia.
The indictment charged Francis with the following offenses:
conspiracy to distribute 280 grams or more of cocaine base,
in violation of 21 U.S.C. §§ 841(a)(1) and
(b)(1)(A), and 846 (Count One); conspiracy to distribute a
detectable amount of heroin, in violation of 21 U.S.C.
§§ 841(a)(1) and (b)(1)(C), and 846 (Count Two);
distribution of a detectable amount of cocaine base, in
violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C) (Count
Seventeen); distribution of a detectable amount of heroin, in
violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C) (Count
Eighteen); and distribution of a detectable amount of cocaine
base within 1, 000 feet of a playground, in violation of 21
U.S.C. §§ 841(a)(1) and 860 (Count Twenty-One).
February 6, 2015, Francis entered pleas of guilty to Counts
One and Two of the indictment, pursuant to a written plea
agreement. Under the terms of the plea agreement, the parties
agreed that Francis should be held responsible for between 1,
000 and 3, 000 kilograms of marijuana for purposes of
calculating his base offense level under § 2D 1.1 of the
United States Sentencing Guidelines. The parties also stipulated
that three enhancements were warranted in Francis' case:
a one-level enhancement under § 2D 1.2(a)(2) for
engaging in drug trafficking in a protected location; a
two-level enhancement under § 2D 1.1 (b)(1) for
possessing a dangerous weapon; and a two-level enhancement
under § 3B 1.1(c) for being an organizer, leader,
manager, or supervisor.
part, the government agreed to move to dismiss the remaining
counts of the indictment in which Francis was charged. The
government also agreed to recommend a three-level reduction
for acceptance of responsibility under § 3E1.1 of the
Sentencing Guidelines, if Francis, in fact, accepted
responsibility for his actions and complied with his
obligations under the plea agreement. In exchange, Francis
agreed to waive the right to appeal his sentence "on any
ground" except "as to any issue which cannot be
waived, by law." Plea Agreement at 7, Docket No. 7.
Francis also agreed to "waive any right [he] may have to
collaterally attack, in any future proceeding, any order
issued in this matter, unless such attack is based on
ineffective assistance of counsel." Id. at 8.
initialed every page of the plea agreement, including the
page containing the waiver of collateral-attack rights. By
signing the plea agreement, Francis affirmed that he had
carefully reviewed every section of the agreement with his
attorney, that he understood the agreement, and that he was
voluntarily agreeing to its terms. See Id. at 12.
the plea hearing conducted pursuant to Rule 11 of the Federal
Rules of Criminal Procedure, the court established that
Francis possessed the capacity to make a voluntary,
intelligent, and informed decision. Rule 11 H'rg Tr. at
7-8, Docket No. 350-1. The court also established that
Francis understood the charges to which he was pleading
guilty, as well as the purpose of the hearing. Id.
court instructed the prosecutor to review the charges to
which Francis was pleading guilty, the applicable statutory
penalties, and the most important provisions of plea
agreement that Francis had reached with the government. The
prosecutor advised that Francis had agreed to plead guilty to
conspiracy to distribute 280 grams or more of cocaine base
(Count One) and conspiracy to distribute heroin (Count Two).
The prosecutor explained that Count One carried "a
mandatory minimum sentence often years in prison, "
along with "a term of supervised release of at least
five years." Id. at 9. He explained that Count
Two carried a "maximum . . . term [of imprisonment] of
up to 20 years, plus a term of supervised release of at least
three years." Id. The prosecutor then outlined
several sections of the plea agreement, including Section
B(2), in which Francis stipulated that he should be
responsible for between 1, 000 and 3, 000 kilograms of
marijuana, and that he should receive enhancements under
§§ 2D 1.1 (b)(1), 2D 1.2, and 3B 1.1(c) of the
Sentencing Guidelines. Id. at 10-11. The prosecutor
also summarized Sections C(1) and (2) of the plea agreement.
He explained that, pursuant to those sections, Francis was
"waiving his right to appeal and collaterally attack his
conviction subject to certain exceptions, " including an
exception for "ineffective assistance of counsel
claims." Id. at 11. Upon being asked if the
prosecutor's summary of the plea agreement was consistent
with his own understanding of the agreement, Francis
responded in the affirmative. Id. at 12.
court then questioned Francis regarding his understanding of
particular terms of the plea agreement. Francis acknowledged
that he had agreed to "give up the right to appeal any
issue to a higher court, . . . save for those very limited
number of issues for which waiver of appeal is not
permitted." Id. at 14, 29. Francis also
affirmed that he had agreed to "give up [his] right to
collaterally attack the court's judgment down the road,
save for an attack based on a claim for ineffective
assistance of counsel." l± at 14.
Additionally, the court specifically inquired as to whether
Francis was voluntarily pleading guilty. In response, Francis
affirmed that no one had promised him a particular outcome or
sentence, that no one had attempted to coerce or compel him
to plead guilty, and that he was "considering a plea of
guilty because [he believed that it was] best for [him] and
because [he was], in fact, guilty of the crimes charged in
Counts 1 and 2." Id. at 13.
of his agreement with the government, Francis signed a
multi-page statement of facts. The prosecutor summarized the
statement of facts during the Rule 11 hearing, as follows:
Mr. Francis came to the Charlottesville area from Culpeper
and was identified as the leader of a group of individuals
that basically set up shop in the residence of Renee Harris,
who lived at Riverside Avenue. Mr. Francis and his
coconspirators weren't living there, but that was sort of
the base of operations where they stored narcotics and
firearms. Mr. Francis would drive around with other
coconspirators in vehicles, often times rented. Informants
that bought drugs from Mr. Francis and co-conspirators said
they almost always had a firearm in their possession. They
described several different firearms, but they described an
assault rifle specifically. They described the color and its
appearance. That firearm was recovered from Renee
Harris's house after a shooting that occurred in April of
2014, and when shown the picture, several of the informants
and cooperators said that that was in the possession of Mr.
Francis and other coconspirators when they would sell drugs.
There was heroin and crack cocaine involved with the
conspiracy. Mr. Francis was present during several recorded
and controlled buys. There were also phone records obtained.
There were rental vehicle records. There were some cell phone
dumps that occurred. Hotel records. There were several
informants that participated in controlled buys that were
recorded. There were also several addicts that came in and
gave statements and testified in front of a federal grand
jury, describing the organization and operation of the
Quite frankly, . . . Mr. Francis was sort of the identified
person that was the leader and the organizer and would give
instructions to others. I think he was the source of the
cocaine and heroin from both New York, and an identified, but
unindicted local source, ...