United States District Court, E.D. Virginia, Richmond Division
MEMORANDUM OPINION (DENYING 28 U.S.C. § 2255
E. HUDSON, SENIOR UNITED STATES DISTRICT JUDGE
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).Hill contends that he experienced
ineffective assistance of counsel and demands relief on the
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.
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"). (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.
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.
Criminal Complaint, Criminal Information, and Guilty
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.)
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.
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.)
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
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
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
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
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.
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.)
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.)
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.)
Modification of Conditions of Pretrial Release and Revocation
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.
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 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.,
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