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Brown v. United States

United States District Court, E.D. Virginia, Alexandria Division

August 8, 2017

HORACE LORENZO BROWN, SR., Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION

          JAMES C. CACHERIS, UNITED STATES DISTRICT COURT JUDGE.

         This 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.

         I. Background

         On 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.

         On June 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 disposition.

         II. Analysis

         A. Petitioner's Section 2255 Motion

         Under 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).

         A 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.

         First, 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 distribution.

         As a 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.

         Presumably, 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.

         Second, 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.[1] Id.

         Again, 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 ...


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