United States District Court, W.D. Virginia, Roanoke Division
Michael F. Urbanski Chief U.S. District Judge.
Mandell Brown, a federal inmate, has filed, through counsel,
a comprehensive amended motion to vacate, set aside, or
correct his sentence pursuant to 28 U.S.C. §
2255. Brown argues that he is entitled to relief
based on various claims of ineffective assistance of counsel.
Brown also argues that his sentence is unconstitutional
following the United States Supreme Court's decision in
Johnson v. United States. 135 S.Ct. 2551 (2015),
because he no longer qualifies as an armed career criminal
under the Armed Career Criminal Act ("ACCA") and a
career offender under United States Sentencing Guideline
("U.S.S.G.") § 4B1.1. Although initially
opposing Brown's request, the government recently has
joined Brown's motion. After reviewing the entire record
and following two hearings on various issues related to the
§ 2255 motion, the court agrees with the parties that
Brown's motion should be granted.
26, 2012, a federal grand jury charged Brown with four counts
of distributing cocaine, in violation of 21 U.S.C. §
841(a)(1), one count of possessing a firearm in relation to a
drug trafficking offense, in violation of 18 U.S.C. §
924(c), and one count of possessing a firearm as a convicted
felon, in violation of 18 U.S.C. § 922(g). Brown was
charged after a confidential informant ("CI")
purchased small amounts of cocaine from Brown, resulting in a
search warrant of Brown's apartment, where a firearm was
his arraignment, counsel for Brown filed a motion to suppress
evidence that was recovered in the course of the execution of
the search warrant. Mot. at 1-4, ECF No. 16. The court held a
hearing in accordance with Franks v. Delaware, 438
U.S. 154 (1978), at which the detective who applied for the
search warrant and provided the affidavit to the court in
support of the search warrant, testified. ECF No. 23. The
detective did not disclose that that the CI subsequently had
been terminated from police employment for lying about the
circumstances of another drug transaction in a separate case.
The information regarding the CI was not provided to the
United States Attorney's Office and was, therefore, not
provided to the defense in advance of the Franks
the court ruled on the suppression motion, Brown filed a
motion for new counsel. ECF No. 29. The court granted the
motion and appointed Gary Lumsden (hereinafter "Defense
Counsel") to represent Brown. Defense Counsel moved to
continue the trial and reopen the Franks hearing.
The court granted the motions and on December 13, 2012,
received additional evidence. At the second suppression
hearing, the detective testified:
This was an informant that I had used on a very regular
basis, and had prior and after done multiple purchases of-
multiple investigations, all involving drugs, with the same
informant. Everything from this informant has been found to
be truthful and consistent with what they've told me with
Supp. Hr'g Tr. at 60, ECF No. 66. No concern as to the
CI's reliability was disclosed at the hearing, and the
court denied the suppression motion. Brown filed an
interlocutory appeal, requesting review of the court's
decision, but ultimately moved to voluntarily dismiss the
appeal. ECF No. 63. Brown's trial was scheduled for April
pm on March 30, 2013 - the Saturday night two days before
trial - the government sent an email to Defense Counsel
apprising him of reliability problems with the CI arising
from a controlled drug sale at the Caru Apartments. The email
indicated that the CI who claimed to have made drug purchases
from Brown had made some false statements to law enforcement
in connection with that drug transaction. March 30, 2013
email at 1, Ex. 1 at 1, ECF No. 210-1. As these facts
concerning the reliability of the government's CI were
both favorable to Brown and material, the government was
required to disclose them under Brady v. Maryland.
373 U.S. 83, 87 (1963).
am the following morning, Sunday, March 31, 2013, Defense
Counsel responded via email that he "was aware of the
'mishap' at Caru . .. but I would be interested in
the full report." IcL Somewhat later that day, Defense
Counsel met with Brown, but apparendy the topic of the
"Caru mishap" involving the CI did not come up. At
7:29 pm that Sunday night, the government sent Defense
Counsel an email attaching the full report regarding the CI.
Id. Defense Counsel did not respond to that email.
next day, April 1, 2013 - the day before the trial was
scheduled to begin - Defense Counsel met with Brown for
approximately three and a half hours. There is no indication
that Brown was advised as to the reliability issue with die
potentially compromised CI. Rather, the discussion focused on
a proposed plea agreement. The plea required Brown to plead
guilty to one count of cocaine distribution and both
firearm-related charges in exchange for a fixed term of
imprisonment under Rule 11(c)(1)(C) of the Federal Rules of
Criminal Procedure. Brown agreed to plead guilty and signed
his name to the plea agreement as did Defense Counsel.
to the start of trial on April 2, 2013, Brown entered a
guilty plea and the court conducted a Rule 11 hearing. As
presented in open court and docketed, the typed plea
agreement contained certain handwritten changes. See
Plea Agree., ECF No. 82. In particular, the typed term of the
sentence, 264 months, was changed to 285 months, and die
counts subject to die plea were revised from Counts One, Five
and Six to Counts Four, Five and Six. Further, while the
typed agreement noted that Brown would be subject to an
enhanced sentence under die ACCA if die court found he had
three prior convictions for serious drug offenses or violent
felonies, the handwriting concedes the application of die
ACCA. At the April 2, 2013 heating, the court
accepted Brown's guilty plea to Counts Four, Five and Six
and found him guilty of those counts.
that afternoon, Defense Counsel checked his email and read
the full report regarding the CI. Defense Counsel Dep. Ex. 1
at 75, ECF No. 204-1. Defense Counsel immediately visited
Brown in custody and told him about the issue with the CI.
Brown was "furious" and told Defense Counsel that
he wanted to withdraw his guilty plea. Id. at 77.
Defense Counsel testified that he "had to file a motion
[withdrawing Brown's guilty plea], " id.,
but the docket indicates he did not do so. Instead, on August
14, 2013, roughly four and a half months after entry of his
guilty plea and on the eve of his sentencing hearing, Brown
filed a pro se motion to withdraw his guilty plea.
ECF No. 89.
later, on August 21, 2013, the court held a sentencing
hearing and addressed Brown's motion to withdraw. Brown
explained that after his guilty plea he learned that the CI
had lied and been terminated. Sent. Hr'g Tr. at 12, ECF
No. 128. In addition, he stated that at trial his defense
would have been that he never sold drugs to the CI and that
she had lied about purchases from him. Id. at 5-10.
The court asked Defense Counsel whether there was "any
insight" he could provide regarding the March 30, 2013
communication from the government, to which Defense Counsel
responded, "No, Your Honor." Id. at 20.
Defense Counsel went on to vigorously argue that the
Brady material should have been disclosed prior to
the Franks suppression hearing, during which the
detective testified that the CI was reliable, and that Brown
should be allowed to withdraw his guilty plea. Id.
at 24-25. The court denied Brown's motion to withdraw,
noting that the government had provided the Brady
material to defense counsel prior to the guilty plea hearing,
and that Brown had waited four and a half months before
filing a motion to withdraw, among other reasons.
Id. at 29-32.
court sentenced Brown to 285 months, in accordance with the
Rule 11(c)(1)(C) plea agreement. Id. at 35. On
August 29, 2013, Brown filed a motion for reconsideration of
the order denying his motion to withdraw, which was denied.
ECF No. 102, 104. On September 3, 2013, Defense Counsel moved
to withdraw as counsel, which the court granted. ECF No. 106,
107. Brown appealed his conviction and sentence, but the
United States Court of Appeals for the Fourth Circuit
affirmed. United States v. Brown. 576 F.App'x
145, 149 (4th Cir. 2014) ...