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United States v. Moyer

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

May 23, 2017

VESTEL MCKINLEY MOYER, Defendant. Civil Action No. 7:15CV8O877


          Hon. Glen E. Conrad Chief United States District Judge

         Vestel McKinley Moyer has moved to vacate, set aside, or correct his federal sentence under 28 U.S.C. § 2255. The government has filed a motion to dismiss, to which Moyer has responded, making the matter ripe for consideration. For the reasons that follow, the government's motion to dismiss will be granted and Moyer's motion to vacate will be denied.


         Moyer was indicted by a federal grand jury on August 21, 2014. Count One of the indictment charged Moyer with possession of a firearm after having been convicted of a felony, in violation of 18 U.S.C. § 922(g)(1). Count Two charged him with possession with intent to distribute a measurable quantity of a mixture or substance containing cocaine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C). Count Three charged him with possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c).

         Moyer entered a plea of guilty to Count Two of the indictment on November 12, 2014. Under the terms of the written plea agreement, the parties stipulated, pursuant to Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure, that Moyer would be sentenced to a term of imprisonment of 144 months. Moyer also agreed to waive his right to appeal his sentence, and his right to collaterally attack his conviction or sentence unless such attack is based on ineffective assistance of counsel. In return, the government agreed to dismiss the remaining counts of the indictment.

         During the guilty plea hearing, Moyer affirmed that he had received an adequate opportunity to read and discuss the plea agreement with his attorney, that he understood the plea agreement, and that no one had made any promises or representations regarding the disposition of the case other than those set forth in the plea agreement. Plea H'rg Tr. at 10, Docket No. 62. Moyer further affirmed that no one had attempted to coerce or compel him to plead guilty, and that he was pleading guilty because he was, in fact, guilty of the offenses with which he was charged. Id. at 10-11. Moyer also indicated that he understood the parties' agreement under Rule 11(c)(1)(C), and the fact that he would be sentenced to a term of imprisonment of 144 months if the court approved the agreement. Id. at 11. Likewise, Moyer affirmed that he understood the waiver provisions in the plea agreement. Id. at 12.

         The court subsequently reviewed the constitutional rights that Moyer would waive if he pled guilty. Notwithstanding all of the valuable rights that he would waive by pleading guilty, and the fact that acceptance of the plea agreement would result in him being sentenced to a term of imprisonment of 144 months, Moyer indicated that he still wished to plead guilty. Id. at 27. The court then asked Moyer to explain what he had done that made him believe that he was guilty of the controlled substance offense charged in Count Two of the indictment. In response, Moyer advised the court that he "possessed a measurable quantity of cocaine, " and that he "intended to distribute it or sell it." Id. at 28.

         The court then called upon the Assistant United States Attorney ("AUSA") to offer evidence in support of the proposed plea of guilty. Proceeding by proffer, the AUSA summarized the government's evidence as follows:

Your Honor, the events leading to the indictment occurred on the 10th of July of this year in the City of Roanoke in the Western District of Virginia. The case ensued from a search warrant that was conducted on Mr. Moyer's residence. Essentially, the police had had information that he was selling cocaine. They watched the residence, they had an informant that told them what was inside, and as they watched, they saw someone apparently do a transaction with Mr. Moyer, stopped that person, and indeed found cocaine. Based on that, they obtained a state search warrant and went inside.
Mr. Moyer's residence was a room, essentially, in a boardinghouse. He had a room in a larger structure, and the door to that room is controlled by a padlock on a hasp. It turns out that Mr. Moyer had the key to that padlock.
So the police went inside. In searching, they found 16 grams of what was determined to be cocaine powder, digital scales, baggies, also discovered a 9-millimeter pistol. There were a number of items indicating that, in fact, Mr. Moyer did live there, documents, medication, clothing, that sort of thing. They spoke to him briefly and he did admit that his DNA would have been on the gun. And this is Mr. Moyer.

Id. at 28-29. When asked if the summary of the evidence was consistent with Moyer's understanding as to what the government would have been able to prove if the case had gone to trial, Moyer responded in the affirmative. Id. at 30.

         At the conclusion of the hearing, the court inquired as to whether Moyer was satisfied with the services that his attorney had rendered on his behalf. Moyer indicated that he was satisfied "with all the components" of his attorney's services in his case, that there was nothing that the court needed to know about the attorney's representation, and that he did not have any questions for his attorney or the court. Id. at 32-33. Accordingly, the court determined that Moyer was capable of making an informed plea, that he understood the nature and consequences of his plea, and that his plea of guilty was a knowing and voluntary plea supported by an independent basis in fact as to each of the essential elements of the controlled substance offense. Id. at 35.

         In preparation for sentencing, a probation officer prepared a presentence investigation report ("PSR"), which designated Moyer as a career offender under § 4B1.1 of the United States Sentencing Guidelines. The career offender designation was based on prior convictions in the Circuit Court for the City of Roanoke for second degree murder and unlawful wounding. As a career offender, Moyer was subject to an enhanced range of imprisonment of 151 to 188 months under the Advisory Guidelines.

         Moyer appeared for sentencing on February 9, 2015. The court adopted the presentence report and determined that Moyer qualified for the career offender designation. However, the court departed from the career offender range and imposed the 144-month term of imprisonment agreed upon by the parties under Rule 11(c)(1)(C). Moyer did not appeal his conviction or sentence.

         On December 11, 2015, Moyer moved to vacate his sentence under 28 U.S.C. § 2255. The original motion, which was filed pro se, sets forth the following claims of ineffective assistance:

1. Defense counsel failed to move to dismiss the indictment after Moyer told him that he had been improperly detained for more than two hours.
2. Defense counsel allowed Moyer to be designated as a career offender, even though the designation may be unconstitutional under Johnson v. United States. 135 S.Ct. 2551 (2015), and was based ...

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