U.S. v. Peveler

• Decision Date: 06 February 2004
• Docket Number: No. 02-5778.,02-5778.
• Citation: 359 F.3d 369
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Terry L. PEVELER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

359 F.3d 369

UNITED STATES of America, Plaintiff-Appellee, v. Terry L. PEVELER, Defendant-Appellant.

No. 02-5778.

United States Court of Appeals, Sixth Circuit.

Argued: October 24, 2003.

Decided and Filed: February 6, 2004.

ARGUED: Elizabeth S. Hughes, GESS, MATTINGLY & ATCHISON, Lexington, Kentucky, for Appellant.

Terry M. Cushing, ASSISTANT UNITED STATES ATTORNEY, Louisville, Kentucky, for Appellee.

ON BRIEF: Elizabeth S. Hughes, GESS, MATTINGLY & ATCHISON, Lexington, Kentucky, for Appellant.

Terry M. Cushing, Candace G. Hill, ASSISTANT UNITED STATES ATTORNEYS, Louisville, Kentucky, for Appellee.

Terry L. Peveler, Manchester, Kentucky, pro se.

Before: DAUGHTREY and GILMAN, Circuit Judges; HAYNES, District Judge.^*

OPINION

HAYNES, District Judge.

Appellant Terry L. Peveler appeals the district court's order denying his motion to modify his sentence under 18 U.S.C. § 3582(c)(2). Peveler relies upon the retroactivity of Amendment 599 to U.S.S.G. § 2K2.4 that bars "double counting" of firearm enhancements where, as here, there is conviction under 18 U.S.C. § 924(c) arising from the same underlying offenses. Although originally indicted on 11 counts, Peveler subsequently entered a guilty plea under the former Fed.R.Crim.P. 11(e)(1)(C) to a superceding information charging five counts of drug-trafficking in violation of 21 U.S.C. § 841(a)(1) and a sixth count of carrying a firearm during and in relation to a drug-trafficking crime in violation of 18 U.S.C. § 924(c). Peveler contends that Amendment 599 prohibits the two-level sentence enhancement in his plea agreement that the district court applied to determine his original sentence. Therefore, Peveler moves to modify his sentence by two levels. For the reasons set forth below, we AFFIRM the district court's judgment, but for different reasons.

A. Procedural History

On April 6, 1993 a federal grand jury in Owensboro, Kentucky returned an 11-count indictment against Peveler and three other co-defendants. Peveler was named in seven of the 11 counts, with five of these counts charging him with drug trafficking in violation of 21 U.S.C. § 841(a)(1). The remaining two counts charged Peveler with violating 18 U.S.C. § 924(c) by using or carrying a firearm in relation to drug trafficking crimes on November 12, 1992, and December 18, 1992. Initially, Peveler pled not guilty to all seven counts, but after the district court denied his motion to suppress, he entered into a plea agreement with the government.

The "Rule 11(e)(1)(C)"¹ plea agreement required Peveler to plead guilty to a six-count superseding information that charged him with the same five drug-trafficking counts in the original indictment, but with only one count of violating § 924(c) by using or carrying a firearm in relation to a drug trafficking crime on January 24, 1993. In return, the government agreed to dismiss the two § 924(c) firearm charges and further agreed to recommend a prison sentence and fine at the low end of the applicable guideline ranges. The plea agreement contained an express provision that the total offense level would be 30, based upon specific guideline calculations in the plea agreement. Peveler entered his guilty plea in September 1994, but preserved his right to appeal the district court's denial of his motion to suppress. Peveler received a 181-month prison sentence, with the five drug-trafficking counts accounting for 121 of these months, and the additional 60 months attributable to his § 924(c) firearm conviction.

Peveler then appealed the denial of his motion to suppress. We affirmed the district court's denial of Peveler's motion. United States v. Peveler, 68 F.3d 475, 1995 WL 620961 (6th Cir. Oct.19, 1995), 1995 U.S.App. LEXIS 36888, (unpublished table decision). The Supreme Court denied Peveler's subsequent petition for a writ of certiorari. Peveler v. United States, 516 U.S. 1137, 116 S.Ct. 966, 133 L.Ed.2d 887 (1996).

Peveler then filed a pro se petition under 28 U.S.C. § 2255 for relief from his sentence, alleging that he pled guilty to the firearm count based upon his belief that he could be convicted under § 924(c) for storing firearms in proximity to illegal drugs. After his conviction, the Supreme Court in Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), held that a conviction for using a firearm in relation to a drug-trafficking crime can only arise if the defendant "actively employed" the firearm. The district court referred Peveler's petition to the magistrate judge. The magistrate judge recommended that the district court vacate Peveler's firearm conviction. This recommendation was based on the government's concession that Peveler's guilty plea to the firearm count was no longer valid after Bailey. The government, however, withdrew its concession shortly after Bousley v. United States, 523 U.S. 614, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998), in which the Supreme Court held that to assert a Bailey challenge successfully, a movant must show "cause and prejudice" to avoid procedural default or demonstrate his actual innocence on the § 924(c) charge and any other more serious charges that were dismissed during plea bargaining. After Bousley, the district court remanded the action to the magistrate judge for a recommendation on the firearm charges.

The magistrate judge conducted an evidentiary hearing, at which the government conceded Peveler's actual innocence of the firearm charge in the superseding information. The hearing focused on whether Peveler had committed the other firearm charges in the original indictment, that is, whether Peveler used or carried a firearm in relation to drug-trafficking crimes on November 12, 1992, and December 18, 1992. After the hearing, the magistrate judge recommended that Peveler's request for relief from his conviction and sentence on the firearm count in the superseding information be denied. The district court overruled Peveler's objections, adopted the magistrate judge's recommendation and denied a certificate of appealability. However, we granted a certificate of appealability, but affirmed the district court's decision.

On August 3, 2001, Peveler filed a motion to modify his sentence pursuant to 18 U.S.C. § 3582(c). The district court referred the motion to a magistrate judge, who recommended denying Peveler's motion. The district judge adopted the magistrate's finding and denied the motion. In essence, the district court adopted the magistrate judge's conclusion that a reduction was not warranted because the two-level enhancement was not for Peveler's drug convictions, but for his possession of a firearm on a different month and year from the drug offenses. Peveler then appealed the district court's decision and filed a pro se brief in this court. We appointed counsel, who filed a brief on Peveler's behalf, to which the government has responded.

B. Factual Background

In September 1992, the Kentucky State Police and the police department in Livermore, Kentucky, began investigating Peveler and his codefendants for suspected drug trafficking. This investigation commenced after a confidential source informed both law enforcement agencies that Peveler was using and selling illegal drugs in Western Kentucky.

About the time of the investigation of Peveler, Livermore Police Chief Charles Cobb arrested Larry Blanford for attempted theft of a motorcycle. Blanford agreed to serve as a confidential informant and to purchase drugs from Peveler in exchange for cash payments and the dismissal of his theft charge.

Pursuant to this arrangement, Blanford informed Cobb and Kentucky State Police Detective Charles Brown that he purchased marijuana from Peveler on November 12, 1992, and again on December 18, 1992, and that he saw Peveler weigh and package various quantities of cocaine on January 24, 1993. Blanford reported seeing firearms openly displayed in the rooms of Peveler's trailer home where the marijuana sales took place in 1992 and further stated that he saw firearms in the closet of Peveler's bedroom where the cocaine packaging occurred in 1993. Based on the information provided by Blanford, warrants were issued to arrest Peveler and to search his trailer. The search resulted in the recovery of 1.5 pounds of cocaine, 12 pounds of marijuana, and four firearms.

C. The Plea Agreement

Peveler eventually entered into a plea agreement that required Peveler to plead guilty to a six-count superseding information with the same five drug-trafficking counts included in the original indictment, but with only one count of violating § 924(c) by using or carrying a firearm in relation to a drug trafficking crime on January 24, 1993. Essentially, the only difference between the original indictment and the superseding information was that the two § 924(c) firearm charges on November 12, 1992 and December 18, 1992, were dropped in exchange for the single § 924(c) count on January 24, 1993.

The plea agreement was under then Fed.R.Crim.P. 11(e)(1)(C) and expressly provided that the sentencing level would be 30, but based upon certain findings to be made by the Court under the guidelines. The plea agreement provides, in pertinent part:

Pursuant to Rule 11(e)(1)(C) and 11(a)(2) of the Federal Rules of Criminal Procedure,

4. Defendant understands that the charge to which he will plead guilty carries a combined maximum term of imprisonment of 65 years, a combined maximum fine of three million dollars, and a 4 year term of supervised released. Defendant understands that an additional term of imprisonment may be ordered if the terms of the supervised released are violated, as explained in 18 U.S.C. § 3583. There is not a mutual mistake here, but rather a retroactive application of a guideline.

* * *

10. At the time of sentencing, the United States will recommend a sentence of imprisonment at the low end of the applicable Guideline Range, but not less than any mandatory minimum term of imprisonment required...