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United States v. Hill

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

August 26, 2019

UNITED STATES OF AMERICA
v.
ANDRELL HILL, Petitioner.

          MEMORANDUM OPINION (DENYING 28 U.S.C. § 2255 MOTION)

          HENRY E. HUDSON, SENIOR UNITED STATES DISTRICT JUDGE

         Andrell Hill, a federal inmate proceeding pro se, submitted this motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence ("§ 2255 Motion," ECF No. 47).[1]Hill contends that he experienced ineffective assistance of counsel[2] and demands relief on the following grounds:

Claim One: "First trial counsel" rendered ineffective assistance because counsel failed to file a suppression motion and failed to advise Hill "of the option to seek suppression," rendering Hill's guilty plea "unknowing and involuntary." (§ 2255 Mot. 4.)
Claim Two: (a) "First trial counsel failed to appropriately explain conspiracy liability which led to [Hill's] erroneous 'admission' of conduct that was the basis" for the "recommendation against the reduction for acceptance of responsibility under [United States Sentencing Guidelines ("USSG") section] 4E1.1" in the Amended Pre-Sentence Investigation Report ("PSR").[3] (Id. at 5.) (b) Sentencing counsel rendered ineffective assistance because counsel failed to object to "the recommendation against the reduction for acceptance of responsibility" in the PSR. (Id.)

         The Government responded, asserting that Hill's claims lack merit. (ECF No. 54.) Hill has filed a Reply. (ECF No. 58.) For the reasons set forth below, Hill's § 2255 Motion (ECF No. 47) will be denied.

         I. PROCEDURAL HISTORY

         A. Criminal Complaint, Criminal Information, and Guilty Plea

         On July 24, 2014, a Criminal Complaint was filed in this Court, charging Hill with one count of conspiracy to distribute and possess with intent to distribute Oxycodone, a Schedule II controlled substance. (Crim. Compl. 1, ECF No. 1.) Hill was arrested on July 28, 2014. (ECF No. 3.) Later that same day, at Hill's initial appearance, the Government moved to detain Hill pending trial. (ECF No. 4.) Subsequently, a detention hearing was held, and Hill was released on pretrial supervision, subject to conditions imposed by the Court, pending trial. (ECF Nos. 7, 8.)

         On December 15, 2014, Hill was charged in a one-count Criminal Information with conspiracy to distribute and possess with intent to distribute Oxycodone, a Schedule II controlled substance. (Crim. Information 1, ECF No. 12.) On January 5, 2015, Hill waived his right to prosecution by indictment and pled guilty to the one-count Criminal Information. (Waiver Indictment 1, ECF No. 17; Plea Agreement ¶ 1, ECF No. 18.)

         In the Plea Agreement, Hill agreed that he was pleading guilty because he was in fact guilty of the charged offense, "admit[ted] the facts set forth in the statement of facts filed with this plea agreement[, ] and agree[d] that those facts establish guilt of the offense charged beyond a reasonable doubt." (Plea Agreement ¶ 2.) Hill agreed that "[t]he penalties for this offense are a maximum term of imprisonment for twenty years" (id. ¶ 1), and "that the Court has jurisdiction and authority to impose any sentence within the statutory maximum" (Id. ¶ 4.) The Plea Agreement provided that "[t]he United States makes no promise or representation concerning what sentence the defendant will receive." (Id.) Hill also agreed that he understood that he was waiving his right to appeal his conviction and "any sentence within the statutory maximum described above (or the manner in which that sentence was determined) ...." (Id. ¶ 5.)

         In the accompanying Statement of Facts, Hill agreed that the following facts were true and correct:

1. Beginning in or before June 2012, and continuing up through and including June 27, 2014, in the Eastern District of Virginia and elsewhere within the jurisdiction of this Court, the defendant, ANDRELL HILL, did knowingly, intentionally, and unlawfully, combine, conspire, confederate, and agree with others, known and unknown, to distribute and possess with the intent to distribute Oxycodone, a Schedule II controlled substance, in violation of Title 21, United States Code, Sections 841(a)(1), 841(b)(1)(C), and 846.
2. In approximately January[] 2014, law enforcement officers became aware of the drug trafficking activities involving ANDRELL HILL and others. According to information received, HILL was obtaining and illegally distributing Oxycodone, a Schedule II controlled substance.
3. Law enforcement's investigation revealed that HILL was purchasing Oxycodone from known and unknown co-conspirators, and then distributing Oxycodone pills and prescriptions to his sub-dealers in the Eastern District of Virginia.
4. Beginning in January[] 2014 and continuing into May[] 2014, a series of controlled purchases of Oxycodone were made from a coconspirator of HILL's utilizing a confidential informant who was acting under the direction of law enforcement. Each of the controlled purchases was for Oxycodone.
5. In June[] 2014, another of HILL's co-conspirators was approached by law enforcement. This individual agreed to cooperate with law enforcement, and made controlled purchases of Oxycodone, Methadone, and an Oxycodone prescription from HILL.
6. Under the direction of law enforcement, the second coconspirator who is referenced in paragraph five above met with HILL at an undisclosed location. The cooperator handed HILL United States currency and in exchange, HILL handed the cooperator a prescription for 180 Oxycodone pills valued at $3, 060.00. HILL also "fronted" the cooperator 60 Methadone pills and an additional 180 Oxycodone pills, having a total value of $3, 180.00.
7. A few days later, while acting under the direction of law enforcement, the cooperator met with HILL and paid HILL $3, 180.00 for the pills HILL had sold to the cooperator.
8. Law enforcement approached HILL immediately after the meeting. He was not under arrest, and was advised that he was free to leave at any time. During a pat-down of HILL, law enforcement recovered the $3, 180.00 in United States currency that HILL had been paid for the drug transaction described in paragraphs 5 and 6 above.
9. HILL advised that he had been buying and redistributing Oxycodone pills and Oxycodone prescriptions during the two-year time period preceding June 2014.
10. HILL further advised that during that same time period, he had obtained multiple prescriptions each week for 180 Oxycodone pills per prescription. HILL then had the prescriptions filled and sold the pills to his customers, or, in the alternative, sold the prescriptions themselves.
11. HILL advised that he kept the proceeds from his Oxycodone sales in a safe.
12. On June 27, 2014, law enforcement officers applied for, and received authorization to execute a search warrant for a residence that was owned by HILL and his wife.
13. During the execution of the search warrant, law enforcement officers recovered three firearms, including: a Taurus .357 Magnum revolver; a Strum Ruger semi-automatic SR 9; and a .22 Magnum pistol. Each of these firearms was recovered from HILL's master bedroom closet, which was in close proximity to approximately $20, 000.00 in United States currency (which was found hidden under the mattress in the master bedroom).
14. Also located in HILL's bedroom in close proximity to the firearms and currency was a prescription bottle containing approximately 180 Oxycodone pills. Additional prescriptions for Contin and another medication, as well as empty Oxycodone pill bottles were found inside the residence.
15. Each of the firearms described in paragraph 13 above is a firearm within the meaning of the law in that each is designed to expel a projectile by means of an explosive. The parties stipulate that the three firearms were manufactured outside of the Commonwealth of Virginia, and as such, traveled in interstate or foreign commerce.
16. For purposes of relevant conduct, the parties agree that HILL distributed approximately 3, 000 pills each month during the one year time period preceding his arrest for a total of 36, 000 pills distributed. The parties further agree that at 30 mg per pill, this quantity converts to 7, 236 kilograms of marijuana. Pursuant to the November[] 2014 United States Sentencing Guidelines, this results in an Offense Level of 32.
17. The parties further stipulate and agree that there are no aggravating or mitigating facts that would call for a sentence outside of the advisory guideline range.
18. The parties stipulate and agree that a two-level increase for possession of a dangerous weapon with drugs ... is appropriate in this case.
19. This Statement of Facts includes those facts necessary to support the plea agreement between the defendant and the United States. It does not include each and every fact known to the defendant or to the United States, and it is not intended to be a full enumeration of all of the facts surrounding the defendant's case.
20. The actions of the defendant as recounted herein were in all respects knowing and deliberate, and were not committed by accident, mistake, or other innocent reason.

(Statement of Facts ¶¶ 1-20, ECF No. 19.)[4]

         During the Rule 11 proceedings on January 5, 2015, Hill confirmed his understanding of the charge and the penalties for the charge. (See, e.g., Jan. 5, 2015 Tr. 6-8, 16-19, ECF No. 52.) When asked if "[p]rior to coming to court [for his guilty plea], ... [he] had an ample opportunity to discuss [his] case in detail with [his] attorney," Hill responded in the affirmative. (Jan. 5, 2015 Tr. 5.) Hill agreed that he was "entirely satisfied with [counsel's] services" and that counsel had "done everything reasonable [Hill had] asked [counsel] to do in connection with [Hill's] case." (Jan. 5, 2015 Tr. 5.)

         Further, Hill agreed that he was "pleading guilty because [he was] in fact guilty" of the charged offense. (Jan. 5, 2015 Tr. 9.) Hill also agreed that he had discussed whether he had "any legal defenses or any legitimate way [he] [could] avoid conviction on this charge" with his counsel. (Jan. 5, 2015 Tr. 8-9.) When asked if anyone had "threatened [him] or forced [him] in any way to enter into [the] plea agreement," Hill responded: "No, sir." (Jan. 5, 2015 Tr. 11-12.) Hill agreed that he was pleading guilty "freely and voluntarily" (Jan. 5, 2015 Tr. 12), and that no one had "instructed [him] how to answer any of [the Court's] questions." (Jan. 5, 2015 Tr. 23.) Further, Hill agreed that his answers to the Court's questions were his own. (Jan. 5, 2015 Tr. 23.)

         The Court explained that Hill's maximum sentence was twenty years of incarceration and that the exact sentence would depend upon the sentencing guidelines and Hill's criminal history. (Jan. 5, 2015 Tr. 16-18.) Hill agreed that counsel had discussed potential sentences with him and that he understood that these potential sentences were predictions not promises. (Jan. 5, 2015 Tr. 18.) Hill also agreed that he could not withdraw his guilty plea if he received a harsher sentence than expected. (Jan. 5, 2015 Tr. 18.) The Court accepted Hill's guilty plea, finding that it was knowing and voluntary and supported by an independent basis of fact. (Jan. 5, 2015 Tr. 22-23.)

         B. Modification of Conditions of Pretrial Release and Revocation of Bond

         On April 1, 2015, Hill and his counsel met with "the United States Attorney's office and agents with the Federal Bureau of Investigation" for a scheduled meeting. (ECF No. 27, at 1.) During the meeting, Hill "was provided with evidence, including documents and other investigatory materials showing his continued involvement in the distribution of Oxycodone" between July 2014 and March 2015, which was while Hill was on pretrial release. (ECF No. 64-1, at 20; see Wyant Aff. ¶ 29, ECF No. 64-2.)[5]

         Specifically, during their investigation of Hill's continued involvement in the distribution of Oxycodone, law enforcement officers, inter alia, used the Prescription Monitoring Program ("PMP"), which "is a database for all Drug Enforcement Administration (DEA) Schedule II, III, and IV controlled substances filled at pharmacies in the Commonwealth of Virginia," (Wyant Aff. ¶ 11), and determined that "multiple individuals who had been recruited by HILL to fill Oxycodone prescriptions were still obtaining and continuing to fill Oxycodone prescriptions written by Scranage[6] even after HILL had been released on pretrial supervision on July 30, 2014." (Id. ¶ 12.) Additionally, in the course of their investigation, law enforcement officers found the following evidence of Hill's continued involvement in the distribution of Oxycodone:

On December 4, 2014, December 5, 2014, and January 13, 2015, a check by law enforcement of the Virginia Employment Commission database and a check of PMP reports revealed that the following individuals had worked at Hill Phoenix Inc., [7] Colonial Heights, Virginia, and had . . . received prescriptions for Oxycodone pills from Scranage: Andrell HILL, K.B., N.B., C.B, S.B., A.D., and M.F.
During his October 16, 2014 interview with [Agent Wyant], HILL only identified M.F. as an individual whom HILL had recruited to fill prescriptions written by Scranage.
[Agent Wyant's] review of the PMP report for Scranage from July 28, 2014 to March 2015 (after HILL's arrest) showed the following: K.B. had obtained six prescriptions, each for 180 oxycodone pills; N.B. had obtained six prescriptions, each for 180 oxycodone pills; and A.D. had obtained three prescriptions, each for 180 oxycodone pills.
The detailed report of HILL's telephone number revealed that K.B.'s telephone was HILL's tenth most frequent caller; A.D. was HILL's eleventh most frequent caller; M.F. was HILL's thirty-fifth most frequent caller; and N.B. was HILL's forty-first most frequent caller.
On February 24, 2015, Confidential Source #2 hereinafter referred to as CS#2 . . ., an individual HILL had referenced during his October 16, 2014 interview, advised that CS#2 had been receiving prescriptions for Oxycodone from Scranage for approximately 2 years. CS#2 has been filling the prescriptions at local pharmacies and then selling the Oxycodone pills to HILL.
Since approximately August 2014 and continuing through January 2015, while HILL was on pretrial release, CS#2 advised that on the majority of occasions, HILL had CS#2 travel to HILL's residence on Eagle Pass Drive in Chesterfield, VA to pick up cash to cover payments to ...

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