United States v. Gravely

          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 ...