United States District Court, W.D. Virginia, Big Stone Gap Division
H. Stevens, Special Assistant United States Attorney,
Abingdon, Virginia for United States;
Chawlone Brown, Pro Se Defendant.
P. JONES UNITED STATES DISTRICT JUDGE.
defendant, Jamel Chawlone Brown, proceeding pro se, filed a
Motion to Vacate, Set Aside, or Correct Sentence pursuant to
28 U.S.C. § 2255, based on a claim of ineffective
assistance of counsel. The government filed a Motion to
Dismiss and Brown responded. Accordingly, this matter is ripe
for disposition. After reviewing the record, I will grant the
United States' Motion to Dismiss.
who was a federal inmate at the time, and a codefendant were
indicted on charges related to introducing heroin into the
prison. Brown was charged with possession of contraband in
prison, in violation of 18 U.S.C. § 1791(a)(2), (b)(1)
and (d)(1)(C) (“Count One”), and possession of
heroin, in violation of 21 U.S.C. § 844(a) (“Count
Four). The government prepared a proposed plea agreement,
pursuant to Rule 11(c)(1)(C) of the Federal Rules of Criminal
Procedure, in which Brown would plead guilty to Count One,
the government would dismiss Count Four, and both Brown and
the government would “agree that a sentence that
includes a 60 month term of imprisonment and a term of three
years of supervised release [was] the appropriate disposition
of this case.” Proposed Plea Agreement 2, ECF No. 83-3.
counsel advised Brown not to accept the proposed plea
agreement. Beck Decl. ¶ 5, ECF No. 136. Counsel
calculated Brown's advisory guideline range as 24 to 30
months, based on a Total Offense Level of 11 and a Criminal
History Category of V. Id. Accordingly, counsel
suggested that Brown plead guilty without a plea agreement,
because although there was “some risk of an above
guideline sentence based on his criminal history”
counsel “did not think it likely that his sentence
would exceed 60 months.” Id. In addition,
counsel filed a Motion for Determination of a Matter of Law
to Insure a Voluntary and Well Informed Guilty Plea, to
determine whether Brown would qualify as a career offender
under the Guidelines. Mot. 3, ECF No. 48. The government
responded, acknowledging that Brown did not qualify as a
career offender. Resp. 1, ECF No. 51.
guilty plea hearing was held on March 5, 2014. The government
explained that Brown faced a maximum statutory penalty of 20
years' imprisonment on Count One and three years'
imprisonment on Count Four. Plea Hr'g Tr. at 6, ECF No.
128. Brown stated that he understood. Id. I informed
Brown that the Sentencing Guidelines were “not binding,
” and I had “the authority to impose a sentence
that is more severe or, . . . less severe than the sentencing
range called for by the guidelines[.]” Id.
at 7, 8. Brown again affirmed that he understood.
Id. at 8. Brown stated that he wanted to plead
guilty to the charges in the Indictment because he was, in
fact, guilty. Id. at 12. I found him fully competent
and capable of entering an informed plea and that his plea
was knowingly and voluntarily made. Id.
probation office prepared a Presentence Investigation Report
(“PSR”) in anticipation of sentencing. The PSR
originally recommended a Total Offense Level of 28, which
included a two-point enhancement for obstruction of justice
and no reduction for acceptance of responsibility, and a
Criminal History Category of V, resulting in an advisory
guideline range of 130 to 162 months' incarceration.
Defense counsel filed numerous objections to the PSR,
including an objection to the Total Offense Level, arguing
that U.S. Sentencing Guidelines Manual (“USSG”)
§ 2P1.2(c) had been improperly applied. Sentencing Mem.
2-9, ECF No. 83. Instead, defense counsel argued that
Brown's Total Offense Level was 11, resulting in a
guideline range of 24-30 months. Id. at 1. The
government responded, agreeing that a Total Offense Level of
26 had been incorrectly applied, but arguing that the correct
Total Offense Level was 25. The government also filed a
motion for an upward variance, arguing for 276 months of
incarceration. Mot. 6, ECF No. 76. Defense counsel filed a
Sentencing Memorandum in opposition.
amended PSR was prepared by the probation officer, concluding
that Brown's Total Offense Level was 15, resulting in a
sentencing guideline range of 37 to 46 months. PSR ¶ 53,
ECF No. 116. At Brown's sentencing hearing, the
government argued that Brown's Total Offense Level was
27, resulting in a much higher guideline range than that
calculated in the amended PSR. Sentencing Hr'g Tr. 54,
ECF No. 121. I continued the sentencing hearing, so that I
could determine the appropriate sentencing guideline range.
Id. at 62.
July 23, 2014, Opinion and Order, I determined that
Brown's Total Offense Level was 26 and his Criminal
History Category was V, resulting in an advisory guideline
range of 110 to 137 months. Order 17, ECF No. 101. At
Brown's continued sentencing hearing, I sentenced Brown
to 110 months' incarceration, concluding that a
within-guidelines sentence was appropriate. Continued
Sentencing Hr'g Tr. 10, ECF No. 122. I found that his
motive for obtaining heroin in the prison was to distribute
it, a “particularly serious crime” with the
“potential for great harm.” Id. at 9. In
addition, I noted Brown's serious criminal history and
the fact that he had manipulated his young codefendant into
bringing drugs to the prison, which caused her serious
consequences. Id. For those reasons, I stated that
even if “the correct guideline range [were] 37 to 46
months” as provided in the PSR, “I would have
varied upward to the [110 month] sentence that I'm
prepared to impose.” Id.
appealed his sentence, challenging the calculation of his
guideline range, among other alleged errors. United
States v. Brown, 614 F. App'x 632 (4th Cir. 2015)
(unpublished). The Fourth Circuit affirmed Brown's
sentence. Id. at 636. It did not reach the
guidelines calculation issue, concluding that even if an
error had occurred, it was harmless because I made clear that
I would have imposed the same sentence, even under the lower
guideline range. Id. at 633. Brown filed a petition
for a writ of certiorari with Supreme Court, which was
denied. Brown v. United States, 136 S.Ct. 282
§ 2255 motion, Brown alleges that he received
ineffective assistance because his counsel advised him to
reject the proposed plea agreement and plead guilty without a
plea agreement, which resulted in a sentence ...