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United States v. Jones

United States District Court, W.D. Virginia, Roanoke Division

June 7, 2018




         Following a six-day trial, defendant Dominique Maurice Jones was found guilty of conspiracy to distribute 28 grams or more of crack cocaine and sentenced to 280 months in prison.[1] He filed a motion and amended motion to vacate, set aside, or correct his sentence, under 28 U.S.C. § 2255, raising multiple claims of ineffective assistance of counsel. The government responded and Jones replied. The court appointed habeas counsel, who filed a consolidated amended § 2255 motion. Following an evidentiary hearing and after review of the record and briefs, the court concludes that Jones has not raised any meritorious claims. Accordingly, the court will GRANT the United States' motion to dismiss and DISMISS Jones' § 2255 petition.

         I. BACKGROUND

         On September 26, 2013, a federal grand jury sitting in Roanoke, Virginia charged Jones and five codefendants in a one-count superseding indictment with conspiracy to distribute and possess with the intent to distribute 280 grams or more of a mixture or substance containing crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A) & 846. Jones was appointed trial counsel. There were some negotiations regarding a plea deal but an agreement was never reached. The government originally offered Jones a deal in which he would agree to plead guilty to conspiracy to distribute 280 grams or more of crack cocaine with the addition of various enhancements. Mot. Amend Comprehensive Am. Pet. Pursuant § 2255 ("Am. § 2255 Mot"), ECF No. 564, Ex. 3. While the plea offer did not provide for a specific sentence, it is likely that Jones would have faced a potential advisory guideline range of 324 to 405 months' incarceration.

         On the eve of trial, counsel obtained an oral Rule 11(c)(1)(C) plea offer from the government for a ten-year term of incarceration. She drafted a letter to Jones outlining the terms of the agreement and met with Jones to discuss the offer. Trial counsel wrote "to confirm that I recommend that you accept this plea." Resp. Opp. Mot. Dismiss ("MTD Opp.") Ex. 1 at 1, ECF No. 518 ("Letter"). Counsel noted that she thought that a jury would find Jones guilty of conspiracy to distribute 280 grams of crack cocaine. Id. She explained that if he were to be found guilty, he faced a possible advisory guideline range of, at minimum, 235 to 293 months, but mat he could receive as much as 30 years to life imprisonment. Id. at 1-2. Trial counsel closed the letter by reiterating, "I strongly recommend that you accept the plea offer. . . ." Id. at 2. Jones refused to accept the plea offer.

         On January 21, 2014, Jones and four codefendants proceeded to trial.[2] The government argued that Jones, along with his brother, Oshay Jones, ran a cocaine trafficking conspiracy. At trial, Jones' counsel argued that Jones was not part of the conspiracy. In addition, counsel reminded the jury that it must decide whether "the government has proven beyond a reasonable doubt mat Dominique Jones is guilty of the crime alleged in the indictment, nothing else, the crime alleged in the indictment. It alleges that he was involved in a conspiracy to distribute 280 grams or more of crack cocaine." Day 6 Tr. Trans. 32, ECF No. 404. Over trial counsel's objection, the jury was not instructed that "an element of the offense charged was that the weight involved in the conspiracy was more than 280 grams of cocaine base." Mot. New Trial 2, ECF No. 291. The jury verdict form did require the jury to decide, first, whether Jones was guilty of the conspiracy and, if so, whether the conspiracy involved 280 grams or more of crack cocaine. Verdict, ECF No. 273. In addition, over defense objection, the court, sua sponte, submitted to the jury a lesser included offense question. In the event that the jury concluded that the conspiracy did not involve 280 grams or more of crack cocaine, the verdict form asked the jury to decide whether the conspiracy involved 28 grams or more of crack cocaine. Id. The jury found Jones guilty of the conspiracy and the lesser included offense: that the conspiracy involved 28 grams or more of crack cocaine. Id. The jury found Jones not guilty of the indicted drug weight of 280 grams or more of crack cocaine, however.. Id.

         Probation prepared a presentence investigation report (the 'TSR") in anticipation of sentencing. The PSR recommended a total offense level of 41, which included a two-point enhancement for possession of a firearm, a two-point enhancement for committing the offense as part of a pattern of criminal conduct engaged in as a livelihood, and a three-point enhancement for being a manager or supervisor. PSR ¶¶ 53, 54, 56 & 61, ECF No. 345. The PSR provided for a criminal history category of V, resulting in an imprisonment range of 360 months to life. Id. ¶ 113. Because the jury found Jones not guilty of the 280 gram drug weight, however, the maximum term of imprisonment that he faced was 40 years. As a result, the PSR recommended an advisory guideline range of 360 to 480 months' incarceration.

         Trial counsel made numerous objections to the PSR, including an objection to the drug weight attributed to Jones as a member of the conspiracy, the possession-of-a-firearm enhancement, the criminal-livelihood enhancement, the managerial-role enhancement, his criminal history, and various factual issues. Id- at 30-32. In addition, trial counsel filed a sentencing memorandum. In it, she argued that Jones should be held accountable for between 154.96 and 168.96 grams of crack cocaine because he was not involved in the conspiracy for its entire duration, that the criminal-livelihood enhancement should not apply because there was no evidence that Jones derived the necessary income from drug sales, that a two-level enhancement for his leadership role in the offense would be sufficient, and that his criminal history category should have been IV, as the PSR incorrectly counted juvenile offenses. Sent. Mem. 2-5, ECF No. 323.

         On June 23, 2014, the court held a sentencing hearing and counsel renewed her objections to the PSR, as explained in the sentencing memorandum. Sent. Hr'g Tr. 5-6, ECF No. 406. The court overruled the objections, adopted the PSR, and sentenced Jones to 280 months' imprisonment. Id. at 25, 37, 129. Specifically, the court concluded that there was sufficient evidence to establish that Jones was part of a conspiracy that involved at least 1.4 kilograms of crack cocaine, that the evidence of firearms belonging to coconspirators was sufficient and that Jones' income derived mainly from drug sales. Id. at 25, 37. The court imposed a sentence below the advisory guideline range, however, after considering the relevant 18 U.S.C. § 3553(a) factors, including the nature of the crime, the characteristics of the defendant, and the need for deterrence and to protect die public. Statement Reasons 3, ECF No. 332.

         Trial counsel filed a motion for acquittal and a new trial, arguing that the drug weight of 280 grams of crack cocaine was an element of the offense, on which the jury needed to be instructed. New Trial Mot. 1-2, ECF No. 291. In addition, counsel argued that because a jury found Jones not guilty of die crime charged-conspiracy to distribute 280 grams or more of crack cocaine-he must be acquitted. Acquittal Mot. 2, ECF No. 290. These motions were denied.

         Jones appealed, arguing that the trial court erred by failing to instruct the jury that the drug weight was an element of the offense, sua sponte submitting to the jury a special verdict form that permitted it to make an alternative drug weight finding, admitting audio recordings of jailhouse conversations, ordering forfeiture and imposing an unreasonable sentence. United States v. Tones. 622 Fed.Appx. 204 (4th Cir. 2015). The Fourth Circuit affirmed. Id. at 209.

         Jones timely filed this § 2255 motion, asserting that trial counsel erred by:

(1) providing erroneous advice that caused Jones to "miss out on a plea agreement;"
(2) failing to challenge the drug quantity attributed to Jones in the PSR at sentencing;
(3) failing to argue that the drug quantity attributed to him should not include any drug activity occurring before he joined the conspiracy; (4) failing to challenge as unreliable statements in the PSR dealing with drugs and weapons; (5) failing to argue that the evidence did not support a firearm enhancement; and (6) failing to challenge the criminal-livelihood enhancement. Mot. Vacate Pursuant to § 2255 ("Mot. Vacate") 5-10, ECF No. 481. Jones filed a motion to amend his § 2255 petition, which was granted. Order, ECF No. 519. In it, Jones raised two additional claims related to his first claim for relief regarding deficient trial counsel advice, and argued that counsel erred by: (1) failing to explain the conspiracy charge against him; and (2) failing to explain the advantages and disadvantages of pleading guilty versus going to trial. Amend. § 2255 Mot. 2-6.

         The government filed a motion to dismiss in response to the original § 2255, arguing, among other things, that Jones' assertion that counsel's deficient conduct caused him to miss out on a favorable ten-year plea offer was spurious because "[t]here was never any such plea agreement." Gov't Mot. Dismiss 4, ECF No. 508. Jones replied to the government's motion to dismiss and included the letter from trial counsel discussing the Rule 11(c)(1)(C) plea agreement for a ten-year term of incarceration. Letter 1. In response, the government admitted that although its records did not include a ten-year offer, trial counsel's letter "calls the government's reliance [on its records] into question, " and conceded that a ten-year deal had been conveyed to trial counsel. Gov't Mot. Dismiss Amend. § 2255 at 3, ECF 526.

         In light of this new revelation from the government, the court appointed habeas counsel for Jones and set an evidentiary hearing to explore the issues that Jones raised in his § 2255 motion and amended § 2255 motion, including whether trial counsel sufficiently advised Jones about the risk of going to trial. Prior to the hearing, habeas counsel filed a comprehensive amended § 2255 petition clarifying the ineffective assistance claim that Jones previously raised regarding deficient trial counsel advice. Specifically, habeas counsel argued r that trial counsel erred by (1) failing to inform Jones of the first plea offer; (2) telling Jones that he would be acquitted if the government failed to prove the indicted drug weight; (3) failing to inform Jones that the trial court had the authority to instruct the jury on lesser included offenses; (4) failing to inform Jones of the law of conspiracy; and (5) failing to explain the sentencing guidelines and standard of proof at sentencing. Am. § 2255 Mot. 12- 13, ECF No. 564.

         The court held an evidentiary hearing on April 25, 2018. Jones testified that trial counsel did not sufficiently explain the law of conspiracy, the United States Sentencing Guidelines, or the mandatory minimum sentence that he faced if found guilty. Evid. Hr'g Tr. 12-14, ECF No. 570. He stated that counsel never explained anything specific about the charge against him, the law, or sentencing issues. Id. at 16-17. But, Jones testified that trial counsel did tell him that in order to be found guilty, the government would have to prove that the conspiracy involved at least 280 grams of crack cocaine. Id. at 17. Jones testified that immediately prior to trial, trial counsel explained that the government was willing to offer him a ten-year plea deal but he never saw the letter from counsel outlining the terms of the agreement until he requested information on the ten-year deal from her in 2016. Id. at 19, 27-28. Jones decided not to accept the ten-year offer because he believed the witnesses who implicated him in the drug conspiracy were lying. Id. at 26. Jones stated that trial counsel told him that if the government did not prove that the conspiracy involved 280 grams of crack cocaine, then the jury would have to acquit him. Id. at 28, 37. As a result, he did not understand how the jury could find him guilty of a conspiracy involving 28 grams of crack cocaine. Id. at 25.

         Trial counsel also testified at the evidentiary hearing. She stated that she had no memory of talking to Jones about the possibility of being convicted of a lesser included offense but discussed with him the law of conspiracy and the evidence against him. Id. at 49, 73. Her strategy at trial was to try to prove that the conspiracy involved less than 280 grams of crack cocaine. Id. at 44-45. She stated that she considered the drug weight, which was set forth in the indictment, to be an element of the offense, which the government must prove and on which the jury must be instructed. Id. at 45. However, counsel also testified that she did not tell Jones that if the government could not prove that the conspiracy involved 280 grams he would be acquitted. Id. at 48. Trial counsel stated that she thought the evidence against Jones was overwhelming so she sought a more favorable plea deal from the government and strongly advised Jones to accept the ten-year Rule 11(c)(1)(C) plea offer. Id. at 46. Trial counsel stated that she left the letter outlining the deal with Jones overnight to consider, and came back the next day to find out whether he would accept the plea offer. Id. at 54-55. But Jones decided to proceed to trial. Id. at 55. Jones' request for relief under 28 U.S.C. § 2255 is now ready for adjudication.


         To state a viable claim for relief under § 2255, a petitioner must prove: (1) that his 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). Jones 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 Or. 1958).

         A. Ineffective Assistance of Counsel

         Criminal defendants have a Sixth Amendment right to effective legal assistance. Strickland v. Washington. 466 U.S. 668, 687 (1984). In order to establish that his counsel's assistance was not reasonably effective, a defendant must satisfy a two-prong analysis: He must show both that (1) counsel's performance fell below an objective standard of reasonableness; and (2) he was prejudiced by counsel's alleged deficient performance. Strickland. 466 U.S. at 669.

         When considering the reasonableness prong of Strickland, courts apply a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689; see also Gray v. Branker. 529 F.3d 220, 228-29 (4th Or. 2008). "The performance of counsel is measured in terms of 'reasonableness under prevailing professional norms.'" Gray. 529 F.3d at 228 (quoting Strickland. 466 U.S. at 688). The court must judge counsel "on the facts of the particular case, " and assess counsel's performance "from counsel's perspective at the time." Strickland, 466 U.S. at 689.

         To satisfy the prejudice prong of Strickland, a defendant must show that there is a reasonable probability that, but for counsel's unprofessional error, the outcome of the proceeding would have been different. Id. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id.

         (1) Erroneous ...

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