United States District Court, E.D. Virginia, Norfolk Division
MEMORANDUM OPINION AND ORDER
G. DOUMAR, UNITED STATES DISTRICT JUDGE
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.
PROCEDURAL AND FACTUAL BACKGROUND
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.
Petitioner's First Plea of Guilty
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. 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.
Petitioner's Second Plea of Guilty
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.
Petitioner's Third and Final Plea of Guilty
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.
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
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.
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.
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.
The Instant ...