United States District Court, W.D. Virginia, Roanoke Division
Glen E. Conrad United States District Judge
Sue Terry 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
Terry 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
Terry's motion to vacate will be denied.
November 12, 2015, a grand jury in the Western District of
Virginia returned a superseding indictment against Terry and
four codefendants. The superseding indictment charged the
defendants with multiple drug and firearm offenses. On
November 18, 2015, Terry entered a plea of guilty to Count
One, in which she was charged with conspiracy to distribute
and possess with intent to distribute heroin, in violation of
21 U.S.C. §§ 841(a)(1) and (b)(1)(C), and 846.
preparation for sentencing, a probation officer prepared a
presentence investigation report ("PSR") that
summarized Terry's involvement in the heroin conspiracy.
According to the PSR, the case against Terry arose from an
investigation conducted by the High Intensity Drug
Trafficking Area Task Force ("Task Force") in
Roanoke, Virginia, following a September 13, 2014 traffic
stop involving one of Terry's codefendants, Juan Reyes.
After the traffic stop, Task Force officers obtained a
warrant to search the motel room in which Reyes reportedly
had been staying. While executing the warrant, the officers
located three occupants in the motel room- Terry; her
husband, Cleveland Terry ("Cleveland"); and their
nine-year-old son. They also discovered 24 individual packets
of heroin, hypodermic needles, and spoons containing drug
residue. A sawed-off shotgun and several glass pipes were
also located in a black duffle bag. Upon being questioned,
Terry admitted ownership of all of the items found. She was
subsequently arrested on state drug and firearm charges.
October 4, 2014, a confidential informant ("CI")
advised Task Force officers that Kelly Combs had requested to
use the CI's vehicle for the purpose of purchasing heroin
in another state. In cooperation with the Task Force, the CI
agreed to allow Combs to use the vehicle. Combs told the CI
that she and the group of people with whom she was traveling
were taking $10, 000 with them, and that they planned to
return to Roanoke to sell bundles of heroin. A GPS tracker
that had been installed on the vehicle indicated that it was
driven to Baltimore, Maryland, where it remained overnight.
October 5, 2014, the vehicle was stopped by officers with the
Virginia State Police. Cleveland was identified as the driver
of the vehicle, and the other occupants were identified as
Terry, Combs, Hameen Irvin, and the Terrys' minor child.
Cleveland consented to a search of the vehicle. A police
canine unit was called to the scene, and the dog alerted to
the presence of narcotics. Combs subsequently admitted to
being in possession of heroin and drug paraphernalia. While
Combs was being searched, a trooper noticed a plastic bag
fall from Terry's pant leg. The bag was retrieved, and it
was found to contain 64 vials and capsules of heroin.
Thirty-three additional vials and capsules of heroin were
recovered from Combs. The adults were arrested and
transported to the Roanoke County Jail.
number of individuals testified before the grand jury. One
witness testified that Terry and her codefendants had been to
the witness's house, where they sat at her kitchen table
and repackaged heroin into smaller bags. Another witness
testified that Terry had been on trips to New York to obtain
heroin. A third witness testified that Terry and her
codefendants had stayed at his residence for several weeks,
and that he had observed Irvin distribute quantities of
heroin to Terry and Cleveland for them to sell or deliver.
interviews of Combs, Irvin, and Cleveland revealed a
conspiracy in which large quantities of heroin were brought
from New York and Maryland to Roanoke. Combs reported that
she and Terry were in charge of setting up drug deals, and
that it was Terry who had learned of a contact in Baltimore
who could supply heroin. Likewise, Cleveland indicated that
the group had selected Baltimore for their last trip because
his wife had obtained the contact information for a heroin
dealer in that area. Irvin reported that in order to fund the
trips out of state to purchase heroin, he, Terry, and
Cleveland stole merchandise from a Lowe's store and
returned the items for gift cards, which were later sold for
cash. Irvin also described various group trips to New York
and Maryland to purchase heroin, in which Terry participated.
Based on the foregoing evidence, the probation officer
determined that Terry was responsible for between 400 and 700
grams of heroin, as well as the firearm found in the motel
appeared for sentencing on March 22, 2016. The court adopted
the PSR, which calculated a total offense level of 25. With a
criminal history category of II, the defendant's advisory
Sentencing Guidelines range was 63 to 78 months in prison.
The court varied downward and imposed a term of imprisonment
of 57 months. Terry did not appeal her conviction or
has since moved to vacate her sentence under 28 U.S.C. §
2255. Terry argues that she should have received a minor role
adjustment based on Amendment 794 to the Sentencing
Guidelines, which took effect on November 1, 2015, prior to
the defendant's sentencing hearing.
2255 sets forth four grounds on which a prisoner in federal
custody may collaterally attack her sentence: (1) "the
sentence was imposed in violation of the Constitution or laws
of the United States"; (2) "the court was without
jurisdiction to impose such sentence"; (3) "the
sentence was in excess of the maximum authorized by law,
" or (4) the sentence "is otherwise subject to
collateral attack." 28 U.S.C. § 2255(a). "The
Supreme Court has interpreted this provision such that if the
alleged sentencing error is neither constitutional nor
jurisdictional, a district court lacks the authority to
review it unless it amounts to 'a fundamental defect
which inherently results in a complete miscarriage of
justice.'" United States v. Foote 784 F.3d
931, 936 (4th Cir. 2015) (quoting Davis v. United
States, 417 U.S. 333, 343 (1974)). This "remarkably
high bar" is "only satisfied when a court is
presented with 'exceptional circumstances where the need
for the remedy afforded by the writ of habeas corpus is
apparent.'" Id. (quoting Hill v. United
States. 368 U.S. 424, 428 (1962)).
case, Terry does not identify any constitutional, statutory,
or jurisdictional sentencing error. Indeed, Terry was
sentenced well below the statutory maximum term of
imprisonment of 20 years under 21 U.S.C. § 841(b)(1)(C).
Terry instead argues that she should have received a
reduction based on Amendment 794 to the Sentencing
Guidelines. Amendment 794 amended the Commentary to §
3B1.2, which provides for varying reductions to a
defendant's offense ...