Barnett v. United States

• Decision Date: 12 June 2020
• Docket Number: 3:12-cr-188-FDW-DSC-2,3:17-cv-477-FDW
• Court: U.S. District Court — Western District of North Carolina
• Parties: ALAN BOYD DONTA BARNETT, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

ALAN BOYD DONTA BARNETT, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

3:17-cv-477-FDW

3:12-cr-188-FDW-DSC-2

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NORTH CAROLINA CHARLOTTE DIVISION

June 12, 2020

ORDER

THIS MATTER is before the Court on Petitioner's pro se Amended Motion to Vacate, Set Aside or Correct Sentence under 28 U.S.C. § 2255, (Doc. No. 7).

I. BACKGROUND

Petitioner was charged in the underlying criminal case along with 27 co-defendants for their alleged involvement with multiple offenses involving the United Blood Nation ("UBN") gang. The charges pertaining to Petitioner are: Count (1), conspiracy to participate in racketeering activity (18 U.S.C. § 1962(d)); Count (2), conspiracy to distribute and possession with intent to distribute cocaine base (21 U.S.C. §§ 846, 841(a)(1)); Count (3) illegal use of communication facility (21 U.S.C. § 843(b)); Count (4) distribution of cocaine base (21 U.S.C. § 841(a)(1), 18 U.S.C. § 2);¹ Count (14), conspiracy to commit murder in aid of racketeering activity (18 U.S.C. § 1959(a)(5)); and Counts (24), (27), conspiracy to commit Hobbs Act robbery (18 U.S.C. § 1951). (3:12-cr-188, Doc. No. 280).

Petitioner and co-defendant Samantha Williams proceeded to a joint trial. At the start of trial, the Court asked the parties to place on the record the status of any plea offer. Petitioner's counsel explained in open court that Petitioner had the same offer throughout the case for the RICO charge. Counsel further explained that such a plea was unacceptable to Petitioner because, due to his criminal record and background, there is a possibility that he would be left "facing such a sentence that he may never go home." (Id., Doc. No. 805 at 5). Petitioner initially stated that he did not recall a plea offer, but the following then transpired after a recess:

MR. ZOLOT: Your Honor, I can - the offer is going to be plead to the RICO conspiracy and stipulate to the cross reference for murder - for conspiracy to commit murder, for drug trafficking over 280 grams of crack cocaine and the two Hobbs Act robberies...

THE COURT: That is the offer.

MR. ZOLOT: That's the offer.

THE COURT: You pulled it off your email.

MR. ZOLOT: That is the offer currently today as we stand here.

THE COURT: Okay. So that is the last offer.

MR. SHELLA: And Judge, I would note after our meeting in July when the court had reset this case, it was June or July, I went back to the jail since my client wasn't brought over. I spoke to him. I relayed to him that they wanted him to plead guilty to the RICO charge. As we sit here right now, he's saying he's not quite sure that he remembers that. But it is his wish to - it was his wish since then to go forward as well.

THE COURT: All right. Mr. Barnett, would you please stand.

So does all of this refresh your recollection -

DEFENDANT BARNETT: Yes, sir.

THE COURT: -- of the event?

So you've heard what Mr. Zolot is offering right now. You have to make the decision whether to accept or reject that.

DEFENDANT BARNETT: I reject it.

THE COURT: You reject it.

DEFENDANT BARNETT: Yes, sir.

THE COURT: All right. If you had been given the opportunity merely to plead to the RICO charge, would you have pled to that?

DEFENDANT BARNETT: No, sir.

(Id., Doc. No. 805 at 6-7).

The Government the presented evidence at trial that established the following facts:

UBN was founded in 1993 at Rikers Island Prison in New York City, when two prisoners brought together several smaller groups affiliated with the Bloods gang. UBN originally consisted of eight groups, called "sets," including the Gangster Killer Bloods, commonly known as "G-Shine." J.A. 262. At present, UBN's power structure remains in New York, but its membership has spread to other prisons and communities along the East Coast. The leader, or "godfather," of each set serves on the central council for the gang and directs set leaders in each state. J.A. 263. The gang operates through a hierarchical structure and a strict set of rules.

Defendant Barnett was the second highest ranking member of the G-Shine set in North Carolina. In the G-Shine hierarchy, Barnett was directly under Franklin Robbs, the leader of G-Shine in North Carolina, who in turn reported to Daryl Wilkinson. Wilkinson—also known as "OG Powerful," "Infinity Q45," and by various other names—was the godfather of G-Shine during the relevant time period and was incarcerated in New York.

The government monitored a wiretap on Barnett's phone for roughly 90 days and surveilled Barnett and other UBN members for years. At trial, the government submitted audio recordings of over two dozen calls collected as part of the wiretap. On one of those phone calls, ... Barnett and other UBN members discussed a plan for a UBN member to attack an individual named Deray Jackson. Additionally, numerous witnesses, including several UBN members charged as co-conspirators, testified to Barnett's leadership role in G-Shine and his participation in robberies and drug trafficking. Several law enforcement officers also testified regarding instances in which they purchased drugs from Barnett using undercover agents.....

United States v. Barnett, 660 F. App'x 235, 238-40 (4^th Cir. 2016).

The jury found Petitioner guilty as charged. (3:12-cr-188, Doc. No. 681).

The presentence investigation report ("PSR") grouped the Counts into four groups pursuant to U.S. Sentencing Guidelines § 3D1.2(d). Group 1, comprised of Counts (1) through (4), resulted in the highest offense level. The base offense level for Group 1 was 34, based on conspiracy to possess or deliver 2.1 kilograms (more than 840 grams but not more than 2.8 kilograms) of crack cocaine. (Id., Doc. No. 909 at ¶ 48). Two levels were added because a weapon was possessed during the conspiracy, two levels were added because Petitioner committed the offense as part of a pattern of criminal conduct engaged in as a livelihood, and four levels were added because Petitioner was an organizer or leader of a criminal activity involving five or more participants or was otherwise extensive. (Id., Doc. No. 909 at ¶¶ 49, 50, 51). This resulted in adjusted offense level subtotal for Group 1 of 42. (Id., Doc. No. 909 at ¶ 53). The total number of units was 1.5 and the greater of the adjusted offense levels was 42. (Id., Doc. No. 909 at ¶¶ 77, 78). The offense level was increased by one, resulting in a combined adjusted offense level of 43. (Id., Doc. No. 909 at ¶¶ 79, 80). In addition, Petitioner qualified as a career offender because the instant offense is a felony crime of violence or controlled substance offense and Petitioner had at least two prior felony convictions for crimes of violence (conspiracy to commit robbery with a dangerous weapon and first-degree burglary). (Id., Doc. No. 909 at ¶ 81). The PSR's criminal history section scored 15 criminal history points and a criminal history category of VI. (Id., Doc. No. 909 at ¶¶ 93-94). In addition, the criminal history category for career offenders is VI. (Id., Doc. No. 909 at ¶ 94). The advisory imprisonment range was life. (Id., Doc. No. 909 at ¶ 140).

Defense counsel filed objections to the PSR challenging, inter alia, the amount of drugs for which Petitioner should be held responsible should not exceed one kilo, that the career offenderdesignation was based on felonies that are not within the applicable time period for counting purposes, and the criminal history points were miscalculated. (Id., Doc. No. 901).

At the sentencing hearing, the Government argued that the crack cocaine amount is supported by the following evidence that was presented at trial:

[F]rom the recordings, which were Governments Exhibit 3B, 3E, 3K, 3P, 3R, 4A, 4B and 4C, it was 265 grams of crack presented to the jury. There's another 25 grams from Government's Exhibit 16, which was the controlled purchase from Mr. Barnett. Mr. Knox testified to another 378 grams of crack that he transacted with Mr. Barnett. Maurice Robinson testified that he, for about a year on a conservative estimate, purchased about 9 ounces per week from Mr. Barnett of crack. And then Mr. Camp and Mr. Meeks both also testified to numerous transactions involving crack with Mr. Barnett.

(Id., Doc. No. 970 at 6-7).

Petitioner's counsel argued that the prosecution's amount was too high because the evidence from Robinson reflects purchases of just over one kilo and that the other witnesses may have been double-counting Petitioner as a buyer and supplier. (Id., Doc. No. 970 at 7).

The Court found by the preponderance of the evidence that Petitioner was either involved in or reasonably foresaw his co-conspirators being involved in at least 840 grams of cocaine base. (Id., Doc. No. 970 at 8). The Court further found that the applicable base offense level for group 1 is 32, and that the enhancement for a criminal livelihood was inapplicable. The adjusted offense level for Group 1 was therefore 38. With regards to the multiple count adjustment, Group 2 was one unit and Group 3 was .4 units for a total of 2.5 units, resulting in a 3-level increase in offense level, resulting in a combined adjusted offense level of 41. The Court found that Petitioner qualified as a career offender and that the total offense level of 41. The Court found that Petitioner did commit conspiracy to commit murder in aid of racketeering in the Deray Jackson event as well as with an unindicted co-conspirator. The Court further found that Petitioner would still be a career offender without the conviction in paragraph 87, and that this conviction was within 15 years ofthe commission of the instant offense. See (Id., Doc. No. 970 at 64-65). The Court entertained Petitioner's argument about his criminal history calculation and found that Petitioner was properly scored with 15 criminal history points. (Id., Doc. No. 970 at 29). The resulting total offense level was 41 and the criminal history category was VI, resulting in an advisory guideline range of 360 months to life imprisonment. See (Id., Doc. No. 947).

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