United States District Court, E.D. Virginia, Alexandria Division
C. CACHERIS, UNITED STATES DISTRICT COURT JUDGE.
matter is before the Court on pro se Petitioner
Horace Lorenzo Brown, Sr.'s (“Petitioner” or
“Brown”) Section 2255 Motion to Vacate or Set
Aside Criminal Judgment. [Dkt. 51.] Petitioner's Motion
for Leave to Amend is also before the Court. [Dkt. 58.] For
the reasons set forth below, the Court will grant
Petitioner's motion for leave to amend, but deny his
motion to vacate, set aside, or correct his sentence.
October 6, 2016, a grand jury indicted Petitioner on two
counts: (1) conspiracy to distribute 28 grams or more of
cocaine base, in violation of 21 U.S.C. §§ 846 and
841(a)(1) (“Count I”); and (2) distribution of 28
grams or more of cocaine base, in violation of 21 U.S.C.
§ 841(a)(1) (“Count II”). Indictment [Dkt.
19] at 1, 5. On November 15, 2016, Petitioner pled guilty to
Count I of the indictment. Plea Agreement [Dkt. 31] at 3. In
exchange for Petitioner's guilty plea, Count II was later
dismissed. [Dkt. 30.] On March 2, 2017, the Court sentenced
Petitioner to 60 months' imprisonment, which fell below
his advisory United States Sentencing Guidelines
(“U.S.S.G.”) range of 108 to 135 months. [Dkt.
46]; see also Presentence Investigation Report
(“PSR”) [Dkt. 35]. Pursuant to the terms of his
plea agreement, Petitioner did not file a direct appeal.
2, 2017, Brown petitioned to vacate, set aside, or correct
his sentence pursuant to 28 U.S.C. § 2255, asserting
ineffective assistance of counsel. [Dkt. 51.] On June 20,
2017, the Government filed its opposition. [Dkt. 54.] On July
20, 2017, Petitioner filed a response. [Dkt. 57.] A day
later-on July 21, 2017-Petitioner filed his Motion for Leave
to Amend. [Dkt. 58.] Both motions are now ripe for
Petitioner's Section 2255 Motion
28 U.S.C. § 2255, a prisoner in federal custody may
collaterally attack his sentence on four grounds: (1) the
sentence was imposed in violation of the Constitution or the
laws of the United States; (2) the court was without
jurisdiction to impose the sentence; (3) the sentence was in
excess of the maximum authorized by law; or (4) the sentence
is otherwise subject to collateral attack. See Hill v.
United States, 368 U.S. 424, 426-27 (1962). The
petitioner bears the burden of proof, which must be
established by a preponderance of the evidence. Miller v.
United States, 261 F.2d 546, 547 (4th Cir. 1958).
petitioner who asserts ineffective assistance of counsel must
meet a specific two-pronged test in order for a § 2255
motion to succeed. This test requires a showing that: (1) the
performance of counsel fell below an objective standard of
reasonableness, based upon prevailing professional norms; and
(2) as a result, there was prejudice to the defendant.
Strickland v. Washington, 466 U.S. 668, 687-88
(1984). To satisfy the performance prong, the petitioner must
demonstrate that the errors were “so serious that
counsel was not functioning as the ‘counsel'
guaranteed by the Sixth Amendment.” Id. at
687. To satisfy the prejudice prong, the petitioner must
demonstrate that “there is a reasonable probability
that, but for counsel's unprofessional errors, the result
of the proceeding would have been different.”
Id. at 694. When a petitioner alleges ineffective
assistance related to the entry of a guilty plea, the
district court applies a slightly modified prejudice
standard, requiring the petitioner to demonstrate that
“there is a reasonable probability that, but for
counsel's errors, he would not have pleaded guilty and
would have insisted on going to trial.” Hill v.
Lockhart, 474 U.S. 52, 59 (1985). In the instant case,
Petitioner fails to meet his burden of proof on either of his
two ineffective assistance claims.
Brown argues that his attorney did not properly challenge his
conspiracy conviction, which he now asserts violates the
well-established rule that an informant cannot serve as a
co-conspirator. Mem. in Supp. of Mot. [Dkt. 52] at 5-6. In
support of this argument, Brown contends that his conviction
was based upon his alleged agreement with a single
confidential source for the Government, id.; that he
never sold drugs to that source prior to February 2016, at
which time the source was already serving as an informant for
the Government, Repl. [Dkt. 57] at 4; and that the Government
presented the Court with no evidence that he conspired with
any other individuals to sell drugs, Mem. in Supp. of Mot. at
6. For that reason, Brown asks this Court to vacate his
conspiracy conviction and hold him liable instead for
preliminary matter, Brown's factual arguments stand in
stark contrast to his assurances to the Court on at least two
prior occasions that certain facts regarding his offense
conduct were true and accurate. See Statement of
Facts (“SOF”) [Dkt. 5] at 6 (bearing Brown's
signature and attesting to the facts as true and accurate);
see also [Dkt. 30] (wherein Brown told the Court
under oath that he had no additions or corrections to the
SOF). For example, Brown agreed that he had conspired with
other persons, “both known and unknown, ” to
distribute cocaine base. SOF, ¶ 1. Those individuals
included his suppliers, who he referenced several times
during conversations with the confidential source.
See Affidavit [Dkt. 2], ¶ 18. Brown also
admitted that he served as the confidential source's sole
supplier for at least ten months prior to that
individual's decision to become an informant, providing
the source with “at least 3 kilograms of
cocaine.” SOF, ¶¶ 2, 5. Finally, Brown agreed
that he “suppl[ied the confidential source] with an
additional amount of cocaine proportionate to what he was
purchasing, ” creating a “fronting”
situation in which the source always owed Brown money.
Id., ¶¶ 5-6. Having twice assured the
Court that these facts are true, Brown cannot now claim that
they are false-without any evidentiary support-and blame his
attorney for the inconsistency.
Brown's argument is that, given his new view of the
facts, his attorney was ineffective because she failed to
argue that Brown conspired solely with a government agent
during the entire life of the charged conspiracy. He does not
argue that she failed to oppose certain inaccurate facts at
the time of his plea agreement or sentencing. He also does
not contend that he would have proceeded to trial if she had
given him different advice regarding his plea. Rather, Brown
asserts only that he would have preferred to plead guilty to
a different count of the criminal indictment. His lack of
content with the bargain he ultimately struck-based upon
facts he twice attested to as true and accurate-is
insufficient to meet his burden of proof to justify relief
under § 2255. Such an argument establishes neither
deficient performance nor prejudice under
Strickland. The Court will therefore deny his
request to vacate his conspiracy conviction.
Brown argues that his attorney was ineffective because she
failed to object to a two-point weapons enhancement under
U.S.S.G. § 2D1.1, which ultimately prevented Brown from
being “safety valve” eligible at sentencing. Mem.
in Supp. at 10-11. Brown contends that where his gun was
found-35 miles away from where he was arrested-is sufficient
to establish that it was not connected to the instant drug
offense. Id. In addition, Brown argues that there
were no drugs found “anywhere near the vicinity of his
. . . firearm.” Id. at 11. As a result, Brown
contends that the enhancement should never have been applied.
Id. Because it was, Brown asserts that he was
sentenced to a higher term of imprisonment than he otherwise
would have been. Id.
Brown appears to be upset with the terms of the deal that he
accepted. Contrary to the assertions in his § 2255
motion, Brown explicitly agreed to the two-point weapons
enhancement under § 2D1.1 during plea negotiations.
See Plea Agreement [Dkt. 31] at 5. He includes no
argument or evidence whatsoever regarding the allegedly
deficient advice he may have received from his attorney about
agreeing to this enhancement. Instead, Brown merely argues
that it should ...