United States District Court, W.D. Virginia, Roanoke Division
MEMORANDUM OPINION
HON.
GLEN E. CONRAD UNITED STATES DISTRICT JUDGE
Heather
Rene Gravely has moved to vacate, set aside, or correct her
federal sentence under 28 U.S.C. § 2255. The government
has filed a motion to dismiss, and the time allotted for
Gravely to respond has expired, making the matter ripe for
consideration. For the reasons that follow, the
government's motion to dismiss will be granted and
Gravely's motion to vacate will be denied.
Background
On June
19, 2014, a grand jury in the Western District of Virginia
returned a superseding indictment against Gravely and ten
codefendants. Count One of the superseding indictment charged
the defendants with conspiracy to distribute and possess with
intent to distribute methamphetamine, in violation of 21
U.S.C. § 846. On October 7, 2014, Gravely entered a plea
of guilty to the conspiracy count, pursuant to a written plea
agreement.
In
preparation for sentencing, a probation officer prepared a
presentence investigation report ("PSR") that
summarized the offense conduct. According to the PSR, an
investigation conducted by the Drug Enforcement
Administration revealed that from 2011 through May 5, 2014,
the defendants named in the superseding indictment, including
Gravely, were involved in a conspiracy to distribute large
quantities of methamphetamine in the Western District of
Virginia and elsewhere. Gravely lived with codefendant
Cristian Perez ("Cristian"), who supplied
methamphetamine to both indicted and unindicted
co-conspirators. Gravely was primarily responsible for
driving Cristian to pick up and deliver methamphetamine, and
for depositing drug proceeds into various bank accounts.
The
record establishes that Cristian and other members of the
conspiracy were known to possess firearms. Cristian was
arrested in March of 2014. Cristian's brother,
codefendant Gerardo Perez ("Gerardo"), was with
Gravely when she learned of Cristian's arrest. Gerardo
subsequently retrieved an AR-15 assault rifle and a .38
caliber handgun that belonged to Cristian, along with $20,
000 from Gravely at her residence, because Gerardo did not
want Gravely getting caught with those items. Later that
month, Gravely called codefendant Brandon Brown and advised
him that a .38 caliber handgun, an AR-15 rifle, and two
packages of methamphetamine were buried in the woods at a
residence in Laurel Fork, Virginia. Brown found the
methamphetamine and gave it to Gravely, but he was unable to
locate the firearms.
During
an interview with investigators on April 8, 2014, Gravely
indicated that she knew that Cristian had purchased an AR-15
rifle approximately two weeks before his arrest. Gravely also
reported that codefendant Silvano Perez ("Silvano")
possessed two AK-47 rifles, a small purple handgun, and
another semi-automatic firearm. The investigators
subsequently confronted Gravely about the methamphetamine in
her possession. Gravely advised the investigators that she
was afraid to divulge any information about the
methamphetamine. She then took the investigators to the
location of the methamphetamine and turned it over to them.
Brandon
Brown was interviewed on August 15, 2014. During the
interview, Brown advised investigators that Cristian utilized
the AR-15 rifle and the .38 caliber handgun for protection,
and that Cristian would carry the handgun on his person while
conducting drug transactions. Brown also indicated that
Gravely drove Perez to make methamphetamine deliveries on a
daily basis, and that she made bank deposits for Cristian and
Silvano.
Based
on Gravely's involvement in the conspiracy and her
knowledge of the quantities of methamphetamine distributed by
Cristian, the probation officer determined that Gravely
should be held responsible for 2.9 kilograms of
methamphetamine, which resulted in a base offense level of 32
under the United States Sentencing Guidelines
("U.S.S.G."). The probation officer also applied a
two-level firearm enhancement under U.S.S.G. §
2D1.1(b)(1). The probation officer declined to apply a minor
role adjustment under U.S.S.G. § 3B1.2. The probation
officer also recommended that Gravely not receive credit for
acceptance of responsibility under U.S.S.G. § 3E1.1.
Gravely's
attorney, Paul Beers, submitted multiple objections to the
PSR. In particular, counsel objected to the probation
officer's recommendation that the defendant not receive a
minor role reduction or a reduction for acceptance of
responsibility. Counsel also objected to the application of
the firearm enhancement, emphasizing that Gravely did not
personally possess any firearms. After the probation officer
declined to modify the presentence report in response to
counsel's objections, Beers filed a sentencing memorandum
in which he again argued that the defendant should not
receive a firearm enhancement and that she should receive
reductions for accepting responsibility and playing a minor
role in the criminal activity.
Gravely
appeared for sentencing on December 18, 2015. During the
hearing, the court heard argument from counsel regarding the
objections to the presentence report. The court ultimately
determined that Gravely should receive credit for acceptance
of responsibility and for playing a minor role in the
criminal activity. Accordingly, the court sustained the
defendant's objections to those portions of the
presentence report. However, the court overruled the
defendant's objection to the firearm enhancement, since
that it was "undisputed that [Gravely] understood what
was taking place" and "knew that firearms were part
and parcel of the conduct that was charged in the
conspiracy." Sentencing H'rg Tr. 15, Docket No. 459;
see also Id. (emphasizing that the possession of
firearms by co-conspirators "was understood, it was
foreseeable, [and] it was attributable to [Gravely]").
Upon
ruling on the objections to the presentence report, the court
calculated a total offense level of 29. With a criminal
history category of II, the defendant's advisory
Sentencing Guidelines range was 97 to 121 months in prison.
The court granted a substantial assistance motion made by the
government and imposed a term of imprisonment of 48 months.
Gravely did not appeal her conviction or sentence.
Gravely
has since moved to vacate her sentence under 28 U.S.C. §
2255. Gravely argues that the court erred at sentencing by
(1) applying a two-level enhancement for possession of a
firearm under U.S.S.G. § 2D1.1(b)(1); (2) not applying a
two-level role adjustment under U.S.S.G. § 3B1.2; (3)
not applying a two-level reduction under U.S.S.G. §
2Dl.l(b)(17) for satisfying the criteria set forth in the
safety valve provisions of 18 U.S.C. § 3553(f) and
U.S.S.G. § 5C1.2; and (4) not applying a three-level
reduction for acceptance of ...