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United States v. Jones

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

December 3, 2019

UNITED STATES OF AMERICA
v.
RAHMYENE S. JONES, Defendant.

          MEMORANDUM OPINION

          ELIZABETH K. DILLON UNITED STATES DISTRICT JUDGE

         Defendant Rahmyene S. Jones moves to vacate his sentence pursuant to 28 U.S.C. § 2255. (Dkt. No. 48.)[1] The government moves to dismiss Jones' motion. (Dkt. No. 59.) For the reasons stated below, the court will grant the government's motion and dismiss Jones' motion.[2]

         I. BACKGROUND

         On January 28, 2016, a Roanoke grand jury indicted Jones for one count of distributing cocaine (Count I) and two counts of possessing heroin with the intent to distribute (Counts II and III) in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). (Dkt. No. 14.) On March 22, 2016, Jones pled guilty to Count II of the indictment pursuant to a written plea agreement. (Dkt. No. 32.) In exchange for Jones's plea, the government dismissed Counts I and III. As part of the plea agreement, Jones agreed to be categorized as a career offender under Section 4B1.1(b)(3) of the Federal Sentencing Guidelines. (See Dkt. No. 33 at 3.) Additionally, Jones waived his right to appeal the sentence under 18 U.S.C. § 3742(a) and his right to collaterally attack the plea or sentence for any reason other than for ineffective assistance of counsel. (See Id. at 7.) On July 13, 2016, the court sentenced Jones to a 126-month term of imprisonment and a subsequent three-year term of supervised released. (Dkt. No. 43.) The court entered an Order of Judgment on July 20, 2016. (See 7/20/16 Order, Dkt. No. 44.) Jones did not file a notice of appeal.

         Jones filed this pro se motion to vacate his sentence pursuant to 28 U.S.C. § 2255 on August 2, 2017, alleging (1) ineffective assistance of counsel, and (2) actual innocence of his career offender designation. (See Dkt. No. 48-1 at 5.)[3] The government moves to dismiss Jones's motion on both procedural and meritorious grounds.

         II. DISCUSSION

         Under § 2255, a prisoner in federal custody may collaterally attack his sentence if (1) “the sentence was imposed in violation of the Constitution or laws of the United States;” (2) “the court was without jurisdiction to impose such sentence;” (3) “the sentence was in excess of the maximum authorized by law;” or (4) the sentence “is otherwise subject to collateral attack.” 28 U.S.C. § 2255(a). Jones must prove the grounds for his attack by a preponderance of the evidence. Townes v. United States, No. 4:12-cr-00033, 2019 WL 5580957, at *1 (W.D. Va. Oct. 29, 2019) (citing Miller v. United States, 261 F.2d 546, 547 (4th Cir. 1958)). Before considering the merits of Jones's claims, the court must first address the government's argument that his motion is untimely under 28 U.S.C. § 2255(f)(1).

         A. Timeliness of Jones' § 2255 Motion

         Section 2255(f)(1) imposes a one-year period of limitation from the date on which the judgment of conviction becomes final. 28 U.S.C. § 2255(f)(1). The government takes the position that because the court entered its Order of Judgment on July 20, 2016, Jones's time for filing his § 2255 motion expired on July 20, 2017. However, Jones had fourteen days from the date the judgment was entered to appeal the judgment pursuant to Federal Rule of Appellate Procedure 4(b)(1)(A)(i).

         When a criminal defendant appeals from a judgment of conviction, the judgment becomes final when a court “affirms a conviction on the merits on direct review or denies a petition for a writ of certiorari, or when the time for filing a certiorari petition expires.” Clay v. United States, 537 U.S. 522, 527 (2003). Where, as here, a defendant does not appeal his judgment from the district court, the one-year period of limitation begins when the time for filing a notice of appeal expires, not when the order of judgment is entered. See, e.g., United States v. Osborne, 452 Fed.Appx. 294, 295 (4th Cir. 2011) (“[Defendant] was required to file his § 2255 motion within one year from the date on which the judgment of conviction became final by the conclusion of direct review or expiration of the time for seeking such review.”) (emphasis added); Canady v. United States, No. 4:09cr10, 4:12cv40, 2014 WL 12521300, at *3 (E.D. Va. Apr. 14, 2014) (“For purposes of § 2255(f)(1), Petitioner's judgment became final . . . when the time for filing [a] notice of appeal expired.”). The time for Jones to file a notice of appeal expired on August 3, 2016, fourteen days after the July 20, 2016 entry of judgment. Jones filed no such notice. Accordingly, the judgment of conviction became final on August 3, 2016, and Jones had until August 3, 2017, to file his § 2255 motion. Jones filed his motion on July 19, 2017, by placing it in the prison mailing system. (See Dkt. No. 48-1 at 12.); see Fed. R. Gov. § 2255 Proc. 3(d) (“A paper filed by an inmate confined in an institution is timely if deposited in the institution's internal mailing system on or before the last day for filing.”).

         Jones's appeal waiver in the written plea agreement does not dispense with his Rule 4(b) extension of time to appeal. The Supreme Court has unequivocally stated that a defendant's waiver of his right to appeal does not bar all appellate claims. See Garza v. Idaho, 139 S.Ct. 738, 748-50 (2019) (“Garza did retain a right to his appeal; he simply had fewer possible claims than some other appellants . . . . [E]ven the broadest appeal waiver does not deprive a defendant of all appellate claims.”). Filing a notice of appeal is always “within the defendant's prerogative.” Id. at 746. “[A] defendant who has signed an appeal waiver does not, in directing counsel to file a notice of appeal, necessarily undertake a quixotic or frivolous quest.” Id. at 745; see also United States v. Linder, 552 F.3d 391, 396 (4th Cir. 2009) (“A defendant who forswears appellate review as part of a plea bargain remains entitled to file a notice of appeal.”).[4]

         Jones retained his right to file a notice of appeal notwithstanding the plea agreement's appeal waiver. Accordingly, Jones's § 2255 motion filed on August 2, 2017, is timely.

         B. Jones's Career Offender Designation Pursuant to Section 4B1.1(b)(3)

         Because both of Jones's claims are directly related to his career offender designation under the Federal Sentencing Guidelines, the court will briefly discuss this designation. To be considered a “career offender” under the Guidelines, (1) the defendant must be at least eighteen years old at the time the defendant committed the offense; (2) the offense must be a felony that is either “a crime of violence or a controlled substance offense;” and (3) the defendant must have at least two prior felony convictions of either a crime of violence or a controlled substance offense. U.S. Sentencing Guidelines Manual § 4B1.1(b)(3). Jones does not dispute that the instant conviction is a “controlled substance” offense under 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C).

         The court ordered a Pre-Sentence Investigation Report (PSR) prior to Jones's sentencing and confirmed that Jones had three prior felony convictions for controlled substance offenses: a 2006 conviction in Roanoke City Circuit Court for possession of cocaine with intent to distribute in violation of Virginia Code § 18.2-248, a 2011 conviction in Wythe County Circuit Court for possession with intent to distribute a Schedule II controlled substance, and a 2011 conviction in Pulaski Circuit Court for distribution of cocaine in violation of Virginia Code § 18.2-248. (See Dkt. No. 46 at 5.) Accordingly, Jones was eligible for the career offender enhancement pursuant to Section 4B1.1(b)(3) with a base offense level of 32 and an advisory guideline range of 151 to 188 months.[5] The court varied downward from the advisory guideline range after considering the factors set forth in 18 U.S.C. § 3553(a) and sentenced Jones to 126 months with a three-year term of supervised release. (See Dkt. No. 54 at 20.)

         C. Jones's Claim of “Actual Innocence” as a Career Offender

         Jones challenges his career offender designation on the basis that “controlled substance offense” as defined in Section 4B1.2(b) of the Federal Sentencing Guidelines encompasses a narrower breadth of conduct than the state statute under which Jones was convicted for two of his three prior controlled substance offenses. According to Jones, Virginia Code § 18.2-248 proscribes “giving drugs for no [remuneration] and offering to sell drugs, ” while the Guidelines contain no such language. (See Dkt. No. 48-1 at 10.) Jones cites Descamps v. United States, 570 U.S. 254 (2013), for the proposition that if a statute under which a defendant is convicted “sweeps more broadly than the generic crime, a conviction under that law cannot count as a . . . predicate” felony for purposes of the career offender enhancement. Id. at 261. Thus, under Descamps, a prior conviction qualifies as a predicate offense only if the elements of the crime of conviction are the same as-or narrower than-those of the generic crime. Without classifying two of Jones's previous convictions as “controlled substance offenses, ” Section 4B1.2(b) would not apply and the court could not have sentenced Jones as a career offender. Jones's argument fails for several reasons.

         First, Descamps and its successor, Mathis v. United States, 136 S.Ct. 2243 (2016), involved defendants challenging their sentences under the violent felony provision of the Armed Career Criminal Act of 1984, (ACCA), 18 U.S.C. § 924(e)(2)(B)(ii). Because Jones was convicted under 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C) and sentenced as a career offender pursuant to Section 4B1.2(b) of the Federal Sentencing Guidelines, the court doubts that Descamps is relevant here at all. See United States v. Brunson, No. 3:12CR113, 2017 WL 1250996, at *2 (E.D. Va. Apr. 3, 2017) (“Because [Defendant] was not sentenced under the violent felony provision of the ACCA, Mathis does not apply.”); United States v. Jeffrey, No. 14-cr-20427-01, 2017 WL 764608, at *2 (E.D. Mich. Feb. 28, 2017) (“Jeffrey was not sentenced under the violent criminal provision of the ACCA. Rather, he was sentenced under the prior controlled substance convictions provision of the Sentencing Guidelines. Because of that important distinction, the Mathis, Descamps, and Johnson [v. United States, 135 S.Ct. 2551 (2015), ] decisions are not directly applicable to Jeffrey.”); but see United States v. Hinkle, 832 F.3d 569, 574 (5th Cir. 2016) (applying the Supreme Court's reasoning in Mathis to the prior controlled substance convictions provision of the Sentencing Guidelines).

         Moreover, even if Descamps and Mathis are applicable, Jones's argument that the Commonwealth's definition of “controlled substance offense” in Virginia Code § 18.2-248 is broader than the generic definition under the Federal Sentencing Guidelines is erroneous. Giving drugs away for no remuneration and offering to sell drugs fall well within the scope of the Guidelines' definition of a “controlled substance offense.” Section 4B1.2(b) reads:

The term “controlled substance offense” means an offense under federal or state law, punishable by imprisonment for a term exceeding one year, that prohibits the manufacture, import, export, distribution, or dispending of a controlled substance . . . or the possession of a controlled substance . . . with intent to manufacture, import, export, distribute, or dispense.

(emphasis added). There is ample case law to support the proposition that “sharing drugs with another constitutes distribution.” See, e.g., United States v. Washington, 41 F.3d 917, 919 (4th Cir. 1994) (concluding that Washington's plan to share his cocaine with a friend “is sufficient for a court to find that he possessed drugs with intent to distribute”); United States v. Cormier, 468 F.3d 63, 70 n.3 (1st Cir. 2006) (“It is well accepted that drugs may be distributed by giving them away for free; 21 U.S.C. § 841(a)(1) imposes no requirement that a sale take place.”). Thus, the state statute under ...


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