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United States v. Henry

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

May 15, 2017


          Zachary T. Lee, Assistant United States Attorney, Abingdon, Virginia, for United States;

          Ashanti Rhan Henry, Pro Se Defendant.


          James P. Jones United States District Judge

         The defendant, Ashanti Rhan Henry, proceeding pro se, has filed a Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255, based on claims of ineffective assistance of counsel and constitutional error. The government has filed a Motion to Dismiss and Henry has responded. Accordingly, Henry's motion is ripe for disposition. After reviewing the record, I will grant the United States' Motion to Dismiss.


         A grand jury returned a multi-count Superseding Indictment against Henry and ten codefendants for various drug-related crimes. Henry was charged with four counts of distribution of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C) (Counts One through Four); one count of possession with intent to distribute 28 grams or more of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B) (Count Five); one count of maintaining a place for the purpose of distributing a controlled substance, in violation of 21 U.S.C. § 856(a)(1) (Count Six); and one count of conspiracy to distribute and possess with intent to distribute 280 grams or more of cocaine base, five kilograms or more of cocaine, and oxycodone, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A) and 841(b)(1)(C) (Count Seven). The government filed an Information advising Henry that because of his two prior drug convictions, if convicted of Count Seven, he would face “a mandatory term of life imprisonment, ” pursuant to 21 U.S.C. §§ 846, 841(b)(1)(A) and 851. Am. Sentencing Enhancement Information 2, ECF No. 172.

         Henry pleaded guilty pursuant to a written Plea Agreement to Count Seven of the Indictment. Plea Agreement 1, ECF No. 276. The Plea Agreement stipulated that Henry faced a maximum statutory term of life imprisonment. Id. The Plea Agreement also provided that the government had filed an Information pursuant to 21 U.S.C. § 851, but would limit the enhancement by relying on only one of Henry's prior felony drug convictions and dismissing all others. Id. at 3. In addition, the government agreed to dismiss the remaining counts from the Indictment. Id. at 2. The parties agreed to recommend a sentence at the low end of the guideline range. Id. at 4.

         At the change-of-plea hearing, Henry stated that he had had an adequate opportunity to read and discuss with counsel the Indictment and Plea Agreement before signing it. Plea Hr'g Tr. 5, 6, ECF No. 291. Henry expressed some concern regarding his representation and the terms of the Plea Agreement, but ultimately affirmed that he wanted to plead guilty. Id. at 11-29. Henry 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 31-32. Finally, Henry affirmed that he was guilty of Count Seven. Id. at 40. I found Henry to be fully competent and capable of entering an informed plea and determined that his guilty plea was knowing and voluntary. Id. at 40-41.

         Henry subsequently filed a motion through counsel seeking to withdraw his guilty plea, asserting his innocence and requesting that he be allowed to proceed to trial. Following a hearing, I denied Henry's motion.

         The Presentence Investigation Report (“PSR”) recommended a total offense level of 40 and a criminal history category of V, resulting in a guideline imprisonment range of 360 months to life imprisonment.[1] PSR ¶ 176, ECF No. 397. Henry's counsel submitted fourteen objections to the PSR, including challenges to the four-level enhancement for being an organizer or leader in the conspiracy, the drug weight calculation, the obstruction-of-justice enhancement, and various alleged factual inaccuracies. Id. at 27-31. I denied those objections, adopted the PSR, and sentenced Henry to 360 months imprisonment. Sentencing Hr'g Tr. 46, ECF No. 450; J. 2, ECF No. 395.

         Henry appealed, asserting that I had erred by denying his motion to withdraw his guilty plea. The Fourth Circuit affirmed. United States v. Henry, 592 F. App'x 201, 202 (2015) (unpublished). Henry also filed a petition for a writ of certiorari with the Supreme Court, which was denied. Henry v. United States, 135 S.Ct. 2817 (2015).

         In his present § 2255 motion, Henry alleges that counsel provided ineffective assistance by (1) failing to explain to the court that his erroneous advise induced Henry to plead guilty; (2) failing to challenge errors in the PSR; (3) failing to investigate; and (4) failing to explain that the inclusion of a collateral attack waiver in his Plea Agreement created a conflict of interest. Henry also alleges that the Criminal Complaint that preceded the Superseding Indictment was constitutionally deficient. Finally, in a Motion to Amend his § 2255 Motion, ECF No. 554, Henry asserts that he is entitled to a reduced sentence following the Supreme Court decision in Johnson v. United States, 135 S.Ct. 2551(2015).[2]


         To 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 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). Henry bears the burden of proving ...

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