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Alston v. United States

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

November 14, 2017




         This matter comes before the Court upon Clinton Martez Alston's ("Petitioner") Amended Motion to Vacate, Set Aside, or Correct Sentence Under 28 U.S.C. § 2255 ("Amended § 2255 Motion"). ECF No. 63. For the reasons stated herein, Petitioner's Amended § 2255 Motion is GRANTED, and Petitioner's sentence is hereby CORRECTED to include a prison term of TIME SERVED consistent with the directives of this Order.


         On December 18, 2014, Petitioner was named in a three-count criminal indictment charging him with Possession with Intent to Distribute Heroin, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C) ("Count One"); Possession of a Firearm in Furtherance of a Drug Trafficking Crime, in violation of 18 U.S.C § 924(c)(1)(A) ("Count Two"); and Felon in Possession of a Firearm, in violation of 18 U.S.C. § 922(g)(1) ("Count Three"). ECF No.1.

         A. Petitioner's First Plea of Guilty

         On January 21, 2015, pursuant to a written plea agreement with the United States ("Government"), Petitioner initially pled guilty to Count Two of the criminal indictment, which carried a mandatory minimum sentence of five years. ECF No. 19. However, on February 20, 2015, Petitioner, by counsel, moved to withdraw his guilty plea. ECF No. 23. In the motion, Petitioner advised the Court that defense counsel was under the mistaken impression that Petitioner's prior New York robbery conviction was a juvenile conviction. Id. According to defense counsel, he did not discover that the New York robbery was an "adult conviction" until a "week or so" after the plea was entered when he was reviewing Petitioner's criminal history. Id. ¶ 6. Due to this alleged "mistake, " neither the Government nor defense counsel believed during plea negotiations that Petitioner would be subject to the Career Offender enhancement under the Guidelines. Id. ("If sentenced as a career offender, the defendant would face punishment which was neither bargained for nor anticipated by the parties.") Rather, the parties understood and tacitly agreed that Petitioner would receive a sentence at or near the mandatory minimum sentence of five years.[1] Id. ¶ 3. By contrast, as a Career Offender, Petitioner would face an advisory range of more than twenty years under the Guidelines. Id. ¶ 6. Therefore, the Government did not oppose Petitioner's motion to withdraw his plea "out of fairness." See Resp., ECF No. 24, at 2 (admitting that both parties "anticipated that the defendant would be sentenced to the mandatory minimum sentence of [sixty] months" during plea negotiations). On March 4, 2015, the Court granted Defendant's motion and ordered his plea withdrawn. ECF No. 25.

         B. Petitioner's Second Plea of Guilty

         On March 4, 2015, pursuant to a new plea agreement with the Government, Petitioner appeared before the Court and pled guilty to Counts One and Three of the criminal indictment. See ECF No. 26. On March 25, 2015, Petitioner sent a letter to the Court requesting a sentence of sixty months, arguing that the Government must honor what the parties originally agreed to in the first plea agreement. ECF No. 41. On April 16, 2015, the Court held a hearing on Petitioner's letter as well as Petitioner's Motion to Continue Sentencing. See ECF No. 37. At the hearing, the Court set aside Petitioner's second guilty plea finding that it was "fraudulently obtained." See id. At the same hearing, the Defendant also made an oral motion for new counsel, which the Court granted. Id. Defense counsel, Mr. Rodolfo Cejas, was relieved, and Mr. Julian Bouchard was appointed as new counsel. Id.

         C. Petitioner's Third and Final Plea of Guilty

         On June 16, 2015, the parties indicated to the Court that they had reached an agreement for a third guilty plea, and the Court set the matter for a hearing. See ECF No. 42. On June 30, 2015, Petitioner appeared before the Court with his counsel, Mr. Bouchard, and indicated his desire to enter a plea of guilty to Counts One and Three of the criminal indictment pursuant to a written plea agreement with the United States ("Government"). See ECF No. 44. Notably, this plea agreement contains the following provision: "Pursuant [to] Fed. R. Crim. P. 11(c)(1)(B) the defendant agrees not to contest the fact that he is subject to enhanced punishment pursuant to USSG § 4B1.1 as a Career Offender." Plea Agreement, ECF No. 45, ¶ 4. After the Court conducted proceedings in accordance with Rule 11 of the Federal Rules of Criminal Procedure, the Court found that Petitioner's plea was knowing and voluntary; accepted Petitioner's plea of guilty to Counts One and Three of the indictment; and found Petitioner guilty of the offenses charged in those counts. See ECF No. 44.

         D. Sentencing

         Petitioner's sentencing hearing was set for November 2, 2015. ECF No. 47. Prior to sentencing, the probation officer prepared Petitioner's presentence investigation report ("PSR"), and classified Petitioner as both an Armed Career Criminal under the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e), and a Career Offender under Chapter 4 of the Sentencing Guidelines. See ECF No. 50 ¶ 24. Because the Armed Career Criminal enhancement resulted in a higher offense level (34) than the Career Offender offense level (28), the probation officer applied the offense level of 34. Id. (citing USSG § 4B1.4).

         The probation officer identified the following three predicate "violent felonies" as triggering the ACCA enhancement: (1) a 2004 robbery conviction in Virginia; (2) a 2006 third-degree robbery conviction in New York; and (3) a 2006 carjacking conviction in Virginia. Id. The probation officer also determined that Petitioner's 2006 third-degree robbery conviction in New York and his 2006 carjacking conviction in Virginia qualified as predicate "crimes of violence, " which triggered the Career Offender enhancement under Chapter 4 of the Guidelines. Id. Importantly, the relevant documents in the probation officer's possession at the time of preparing the PSR appeared to indicate that Petitioner committed the 2006 New York robbery at age 18 and that he was sentenced to a jail term of nine months. Id. ¶ 33. Accordingly, such prior conviction received two criminal history points. Id. ¶ 33.

         When calculating Petitioner's criminal history category ("CHC") in the PSR, the probation officer assigned nine criminal history points to Petitioner's prior convictions and added two points for committing the instant offense while on probation. PSR, ECF No. 50, ¶ 39. While eleven criminal history points normally results in a CHC of V, the ACCA enhancement requires the defendant to receive the highest CHC among USSG §§4B 1.4(c)(1), (2), and (3), which was VI in Petitioner's case. Id. ¶¶ 40-41. Therefore, the probation officer calculated a total offense level of 31, which reflected a three-level reduction for acceptance of responsibility, and a CHC of VI, resulting in an advisory Guidelines range of 188 to 235 months. Id. ¶¶ 68-69.

         On November 2, 2015, Petitioner appeared before the Court for sentencing. ECF No. 53. At the sentencing hearing, Petitioner, by counsel, objected to his classification as an Armed Career Criminal in light of the Supreme Court's decision in Johnson v. United States. 135 S.Ct. 2551 (2015) ("Johnson"). After hearing argument at the sentencing hearing, the Court overruled this objection, and the PSR was adopted without change. See ECF No. 55 at 1. The Court ultimately imposed a sentence within the Guidelines - 200 months in prison - which included 200 months on Count One and 120 months on Count Three, to be served concurrently. See Judgment, ECF No. 54, at 2. The Court also imposed a three-year term of supervised release. Id. at 3.

         E. The Instant ...

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