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Brown v. United States

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

July 24, 2017



          Michael F. Urbanski Chief U.S. District Judge.

         Demarcus 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.[1] 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.


         On July 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 found.

         Following 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 hearing.

         Before 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 my investigation.

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 2, 2013.

         At 6:16 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).

         At 6:27 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.

         The 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.

         Prior 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.[2] 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.

         Later 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.

         A week 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.

         However, 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.

         The 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) ...

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