United States District Court, W.D. Virginia, Harrisonburg Division
Michael F. Urbanski Chief United States District Judge
Dawn Kelly, a federal inmate proceeding pro se, has
filed a motion to vacate, set aside, or correct her sentence
pursuant to 28 U.S.C. § 2255. Kelly alleges that she is
entitled to a reduced sentence because of the minor role that
she played in the criminal conduct and because the victim who
overdosed had multiple drugs in her system. The government
filed a motion to dismiss and the time within which to
respond has now expired, making this matter ripe for
disposition. After reviewing the record and briefs, the court
concludes that Kelly has not stated any meritorious claims
for relief under § 2255 and the government's motion
to dismiss must be granted.
November 12, 2014, a federal grand jury indicted Kelly and a
codefendant, charging them with conspiracy to distribute and
possess with intent to distribute heroin, the use of which
resulted in the serious bodily injury and death of R.F.L., in
violation of 21 U.S.C. §§ 846, 841(b)(1)(C)
("Count One"), and knowingly and intentionally
distributing and aiding and abetting in the distribution of a
measurable quantity of a mixture and substance containing a
detectable amount of heroin, the use of which resulted in the
serious bodily injury and death of R.F.L, in violation of 21
U.S.C. §§ 841(a)(1) and 841(b)(1)(C) ("Count
Two"). Indictment at 1-2, ECF No. 15. On May 22, 2015,
Kelly and the government entered into a written plea
agreement, pursuant to Rule 11(c)(1)(C) of the Federal Rules
of Criminal Procedure, in which Kelly agreed to plead guilty
to a lesser included offense of Count Two: distribution of
heroin. Plea Agree, at 1, ECF No. 49. The plea agreement
noted that the maximum term of imprisonment Kelly could face
for a distribution of heroin conviction was 20 years, but if
she were convicted of distribution of heroin resulting in
death, she would have faced a mandatory minimum term of
imprisonment of 20 years and a maximum of life. Id.
at 1-2. The parties agreed that Kelly would be sentenced to
between 108 and 174 months' incarceration. Id.
guilty plea hearing was held on May 26, 2015 before a federal
magistrate judge. Kelly affirmed that she had received a copy
of the indictment and plea agreement and had had an adequate
opportunity to discuss both with counsel. Plea Hr'g Tr.
at 6, ECF No. 122. Kelly affirmed that she was satisfied with
her counsel's representation. Id. at 6. The
government reviewed the essential terms of the plea agreement
on the record and noted that Kelly gave up her right to
appeal and to collaterally attack her sentence except in
limited circumstances. Id. at 8-12. The court asked
Kelly whether she understood that "this plea agreement
is pursuant to Rule 11(c)(1)(C)? If the district judge
accepts the plea agreement, then the judge is required to
sentence you somewhere within the range that yoii and the
government have agreed to, which is 108 to 174 months'
imprisonment." Id. at 14. Kelly stated that she
understood. Ld Kelly affirmed her understanding that by
pleading guilty, she was giving up her right to appeal and to
collaterally attack her sentence, except in very limited
circumstances. Id. at 14-15.
government filed a statement of facts signed by Kelly and her
counsel, which provided that Kelly facilitated a heroin sale
between a supplier and R.F.L. Statement of Facts ¶ 1,
ECF No. 48. Kelly obtained 3 bags of heroin of .1 grams each
from the supplier, sold them to R.F.L. for $100, and then
gave the money to the supplier and received some heroin in
exchange. Id. Not long after receiving the drugs,
R.F.L. overdosed and died. Id. at 2. The medical
examiner from the Virginia Department of Health determined
the cause of death as "acute combined heroin and cocaine
poisoning." Id., The medical examiner also
noted that R.F.L. had what is considered a "lethal
level" of heroin in her system, and that it would
"surely be enough to cause at least serious bodily
injury to a person." Id., Kelly admitted that
the statement of facts accurately reflected the facts of the
case and that she wanted to plead guilty. Plea Hr'g Tr.
at 24-25, ECF No. 122. The court found that Kelly was fully
competent and capable of entering an informed plea, that she
was aware of the nature of the charges against her and the
consequences of pleading guilty. Id. at 26. Further,
it recommended that the presiding district judge accept
Kelly's plea and adjudge her guilty. Id.
Presentence Investigation Report ("PSR")
recommended a total offense level of 35, which included a
three-level reduction for acceptance of responsibility, a
criminal history category of II, resulting in a guideline
imprisonment range of188 to 235 months. PSR ¶ 65, ECF
No. 91. Both the defense and the government filed sentencing
memoranda. The government argued that the sentencing factors
in 18 U.S.C. § 3553(a) supported imposition of a
sentence between 111 and 117 months, at the low end of the
agreed-upon range. U.S. Sent. Mem. at 7-12, ECF No. 86. The
defense argued that Kelly was an addict, R.F.L. was a friend,
who contacted Kelly in order to obtain drugs, which prompted
Kelly to facilitate the heroin sale, although Kelly did not
receive any money. Def. Sent. Mem. at 5-6, ECF No. 85.
Accordingly, a sentence of 108 months was appropriate: the
lowest sentence in the agreed-upon range. Id. at 19.
sentencing hearing was held on November 18, 2015. The court
asked Kelly whether she understood that if it accepted the
plea, it must sentence her within the sentencing range of 108
to 174 months' incarceration. Sent. Hr'g Tr. at 14,
ECF No. 121. Kelly affirmed that she understood, Id.
The court accepted Kelly's guilty plea and sentenced her
to 108 months' incarceration. Id. at 29.
did not appeal. She filed a motion arguing that she is
entitled to a reduction in her sentence, following an
amendment to U.S. Sentencing Guideline ("U.S.S.G.")
§ 3B1.2, for playing a minor role in the criminal
activity. Mot. at 1, ECF No. 115. The court notified Kelly
that because she appeared to be challenging her sentence, the
court intended to address her motion as a § 2255
petition, and directed her to submit a completed § 2255
motion form, if she wished to so proceed. Order at 3, ECF No.
114. Kelly filed the requisite § 2255 form, stating that
the "victim had other drugs in her system at the time
she overdosed." § 2255 Mot. at 9, ECF No. 116. The
government responded to both motions.
state a viable claim for relief under § 2255, a
petitioner must prove: (1) that his or her sentence was
"imposed in violation of the Constitution or laws of the
United States;" (2) that "the court was without
jurisdiction to impose such sentence;" or (3) that
"the sentence was in excess of the maximum authorized by
law, or is otherwise subject to collateral attack." 28
U.S.C. § 2255(a). Kelly bears the burden of proving
grounds for a collateral attack by a preponderance of the
evidence. Miller v. United States. 261 F.2d 546, 547
(4th Cir. 1958).
Minor Role Reduction
argues that she should receive a minor role reduction based
on Amendment 794 to the U.S. Sentencing Guidelines manual.
Amendment 794 amended U.S.S.G. § 3B1.2, and allows for a
reduced sentence for a defendant found to be
"substantially less culpable than the average
participant in the criminal activity." U.S.S.G. §
3B1.2, comment, n. 3(A).
argument is waived. Kelly's plea agreement expressly
waived her right to collaterally attack her sentence, other
than to raise issues that cannot be waived by law or that
allege ineffective assistance of counsel. Plea Agree, at 6-7,
ECF No. 49. Collateral attack waivers are generally
enforceable following a knowing and voluntary plea.
United States v. Lemaster. 403 F.3d 216, 220 (4th
Cir. 2005). The court ultimately determined that Kelly's
guilty plea, ...