Erwin v. United States

• Decision Date: 30 September 2020
• Docket Number: 5:18-cr-00021-KDB-DCK-1,5:19-cv-00135-KDB
• Parties: JUSTIN LAMAR ERWIN, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
• Court: U.S. District Court — Western District of North Carolina

JUSTIN LAMAR ERWIN, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

5:19-cv-00135-KDB

5:18-cr-00021-KDB-DCK-1

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NORTH CAROLINA STATESVILLE DIVISION

September 30, 2020

ORDER

THIS MATTER is before the Court on Petitioner's Motion to Vacate, Set Aside or Correct Sentence under 28 U.S.C. § 2255. [CV Doc. 1].¹

I. BACKGROUND

On April 4, 2018, Pro se Petitioner Justin Lamar Erwin ("Petitioner") was charged in a Bill of Information with one count of possession with intent to distribute heroin in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C) (Count One) and one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) (Count Two). [CR Doc. 1: Bill of Information]. On the same day, the Government filed an Information Pursuant to 21 U.S.C. § 851 setting forth Petitioner's two previous felony drug convictions in Criminal Case No. 5:11-cv-17-RLV, described more fully below. [See CR Doc. 2: § 851 Information]. The parties reached a plea agreement pursuant to which Petitioner agreed to plead guilty to Counts One and Two in exchangefor certain defined charging concessions by the Government. [CR Doc. 4 at 1: Plea Agreement]. The plea agreement provided, in part, as follows:

2. The Defendant understands that the charging concessions made by the government were made in exchange for the Defendant's agreement to plead guilty. The United States could have charged the Defendant with a violation of 18 U.S. Code Section 924(c) that would have carried a mandatory-minimum sentence of 25 years imprisonment that would have to run consecutive to every other count of conviction.

3. The Defendant will admit the violations in the SRV Petition (Document 40) in Docket Number 5:11-cr-17-RLV,²and agrees to a sentence at the statutory maximum of five (5) years of imprisonment, to be served consecutive to the sentence in this new, above-captioned case.

...

6. The Defendant is aware that the statutory minimum and maximum sentences for each count are as follows:

...

In this case, the Government has filed an Information regarding one or more felony drug convictions pursuant to 21 U.S.C. 851. The Defendant stipulates, agrees, and affirms that the Information is accurate and valid for purposes of 21 U.S.C. 851, and that the Defendant has no challenge to the same. Thus, the Defendant is facing a statutory sentence of not more than thirty (30) years imprisonment.

...

9. Pursuant to Rule 11(c)(1)(B), the parties agree that they will jointly recommend that the Court make the following findings and conclusions as to the U.S.S.G.:

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b. With regard to Count Two, the base offense level is 20 pursuant to U.S.S.G. § 2K2.1(a)(4) a 2-level enhancement applies, because the Defendant possessed a stolen firearm; and a 4-level enhancement applies, because the Defendant possessed the firearm in connection with and in furtherance of a drug trafficking crime, pursuant to U.S.S.G. § 2K2.1(b)(6)(B).

[Id. at 1-2 (emphases in original)]. In the plea agreement, Petitioner also stipulated to the factual basis that was filed with his plea agreement and agreed that it could be used by the Court and the U.S. Probation Office "without objection by Defendant to determine the applicable advisory guideline range or the appropriate sentence under 18 U.S.C. § 3553(a)." [Id. at 5]. The factual basis provided, in pertinent part, as follows:

1. On January 11, 2018, during the arrest of [Petitioner] on an outstanding warrant and the lawful search of his residence located on West Wood Drive in Statesville, North Carolina, within the Western District of North Carolina (WDNC), law enforcement officials recovered several plastic bags containing a total of approximately 40 grams of heroin; approximately $7,000 in U.S. currency; and a stolen Glock, model 19, 9mm semi-automatic pistol.

2. [Petitioner] possessed the heroin with intent to distribute and possessed the firearm in furtherance of drug trafficking. Moreover, the handgun was manufactured outside the State of North Carolina and, thus, traveled in and effected interstate commerce. Finally, [Petitioner] has previously been convicted of offenses punishable by imprisonment for more than one year, in WDNC Docket Number 5:11-cr-17, and [Petitioner] has not been pardoned, so he was prohibited from possessing the firearm in this case.

[CR Doc. 3 at 1: Factual Basis].

The Magistrate Judge conducted Petitioner's Rule 11 hearing on April 9, 2018. [CR Doc. 6]. At that time, Petitioner testified under oath that he was guilty of the charges to which he was pleading guilty, that he had spoken with his attorney about how the U.S. Sentencing Guidelinesmay apply to his case, that the Court could not determine the applicable guidelines range until after Petitioner's Presentence Investigation Report (PSR) was prepared, that he understood and agreed to be bound by the terms of his plea agreement, and that he had read, understood and agreed with the factual basis. [CR Doc. 6 at ¶¶ 13, 14, 24, 26, 30-31]. Petitioner also testified that he understood the rights he was waiving by pleading guilty, including his right to appeal and to challenge his conviction or sentence in post-conviction proceedings. [See id. at ¶¶ 27-28]. Finally, Petitioner testified that he was satisfied with the services of his attorney. [Id. at ¶ 36]. The Magistrate Judge accepted Petitioner's guilty plea, finding that it was knowingly and voluntarily made. [Id. at p. 4].

Prior to Petitioner's sentencing, a probation officer prepared a PSR. [CR Doc. 17: PSR]. In the PSR, the probation officer recommended a Base Offense Level of 20 on Count Two, with a four-level enhancement for use of a firearm in connection with the drug-trafficking charge, U.S.S.G. §2K2.1(b)(6)(B); a two-level enhancement because the firearm was stolen, U.S.S.G. §2K2.1(b)(4)(A); and a three-level reduction for acceptance of responsibility, U.S.S.G. §3E1.1(a), (b); for a Total Offense Level (TOL) of 23. [Id. at ¶¶ 8-10, 18-20]. Together with a Criminal History Category of III, a TOL of 23 yielded a recommended guidelines range of 57 to 71 months' imprisonment. [Id. at ¶¶ 28, 59]. The PSR also noted Petitioner's agreement to admit to the violations in the SRV Petition in Criminal Case No. 5:11-cr-17 and to a sentence at the statutory maximum of five (5) years' imprisonment for those violations, to be served consecutive to the sentence in the instant underlying criminal proceedings. [Id. at ¶ 60].

On October 19, 2018, the Court sentenced Petitioner to a term of imprisonment of 57 months on each of Counts One and Two, to run concurrently to each other and to run consecutively to the sentence imposed in Criminal Case No. 5:11-cr-17 and any pending state court matter. [CRDoc. 21 at 2: Judgment]. In accordance with the plea agreement, Petitioner was sentenced to a term of 60 months' imprisonment, to run consecutively to his concurrent 57-month sentences, for his supervised release violations. [Case No. 5:11-cr-17, Doc. 50 at 2: SRV Judgment]. Petitioner did not directly appeal his conviction or sentence in either of these criminal matters.

Petitioner timely filed the pending motion under 28 U.S.C. § 2255 to vacate, set aside or correct sentence. [CV Doc. 1]. Petitioner claims three grounds for relief in his motion: (1) the Court erred under Federal Rule of Criminal Procedure 11(b)(3) in accepting Petitioner's guilty plea where the Government did not prove he knew that he was a felon when he possessed the firearm on the § 922(g) charge under Rehaif v. United States, 139 S. Ct. 2191 (2019)³; (2) his counsel was ineffective in failing to recognize that Petitioner was subject to a four-level sentencing enhancement for using a firearm in furtherance of the heroin charge despite the Government's concession to charge Petitioner with a violation of 18 U.S.C. § 924(c); and (3) his counsel was ineffective for failing to challenge the five-year term of imprisonment on Petitioner's supervised release violation. [CV Doc. 1-1 at 3].

The Court ordered the Government to respond to Petitioner's motion, [CV Doc. 2], and the Government timely responded [CV Doc. 4]. Petitioner did not reply.

This matter is ripe for adjudication.

II. STANDARD OF REVIEW

Rule 4(b) of the Rules Governing Section 2255 Proceedings provides that courts are to promptly examine motions to vacate, along with "any attached exhibits and the record of prior proceedings . . ." in order to determine whether the petitioner is entitled to any relief on the claimsset forth therein. After examining the record in this matter, the Court finds that the arguments presented by Petitioner can be resolved without an evidentiary hearing based on the record and governing case law. See Raines v. United States, 423 F.2d 526, 529 (4th Cir. 1970).

III. DISCUSSION

A. Rule 11 Rehaif Claim

"[A] guilty plea constitutes a waiver of all nonjurisdictional defects, including the right to contest the factual merits of the charges." United States v. Willis, 992 F.2d 489, 490 (4th Cir. 1993). Thus, after a guilty plea, defendant may not "raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea." Blackledge v. Perry, 417 U.S. 21, 29-30 (1974). Rather, he is limited "to attacks on the voluntary and intelligent nature of the guilty plea, through proof that the advice received from counsel was not within the range of competence demanded of attorneys in criminal case." Id.

An appellate waiver is generally enforceable where the waiver was knowingly and voluntarily made. United States v. Marin, 961 F.2d 493, 496 (4th Cir. 1992). The Fourth Circuit does not distinguish between the enforceability of a waiver of direct-appeal rights from a waiver of collateral-attack rights in a plea agreement. See United States v. Lemaster, 403 F.3d 216, 220 (4th Cir. 2005). There are narrow exceptions to the enforceability of plea waivers such that "even a knowing and voluntary waiver...