Green v. United States
| Decision Date | 07 March 2012 |
| Docket Number | No. 1:09-CV-34 CAS,1:09-CV-34 CAS |
| Parties | RANDY P. GREEN, Movant, v. UNITED STATES OF AMERICA, Respondent. |
| Court | U.S. District Court — Eastern District of Missouri |
This matter is before the Court on federal prisoner Randy P. Green's motion pursuant to 28 U.S.C. § 2255 to vacate, set aside or correct sentence ("Motion to Vacate"). The government filed a response in opposition. Movant did not file a traverse, and the time to do so has expired. Therefore, this matter is ready for decision. For the following reasons, movant's motion will be denied.
On January 19, 2006, movant was indicted with a co-defendant and charged with conspiracy to distribute in excess of five hundred (500) grams or more of a mixture or substance containing methamphetamine, in violation of Title 21, U.S. Code, Sections 841 (a)(1) and 841 (b)(1)(A)(viii). Movant's property was also named in a forfeiture count. Attorney Douglas S. Pribble was appointed to represent movant. Mr. Pribble filed four motions for extension of time to file pretrial motions, and on May 8, 2006, movant filed a waiver of pretrial motions.
On May 17, 2006, Mr. Pribble filed a motion to substitute counsel because he had accepted a position with the Missouri Attorney General's office. The motion was granted, and on May 18, 2006, attorney J. Christian Goeke was appointed as movant's new counsel.
On July 28, 2006, the government filed a notice of enhancement of sentence pursuant to 21 U.S.C. § 851, which was based on a 1986 state conviction for felony possession of more than thirty- five grams of marijuana. According to the Presentence Investigation Report ("PSR"), movant had three prior felony drug convictions on his record. The government did not file a notice of enhancement based on the other two convictions.
In August 2006, the parties reached a plea agreement under which movant would plead guilty to the charge against him. Movant signed a written Plea Agreement, Guidelines Recommendations and Stipulations ("Plea Agreement"). Under the Plea Agreement the parties agreed that the base offense level should be at least 32, but that the base level should be increased by four levels under United States Sentencing Guidelines ("U.S.S.G." or "Guidelines") Section 3B1.1(a) because movant was an organizer or leader of a criminal activity that involved five (5) or more participants. See Plea Agreement at 7. The parties also agreed that the base level should be reduced by two levels pursuant to U.S.S.G. Section 3E1.1(a) because movant demonstrated acceptance of responsibility. Id.
In the Plea Agreement the parties agreed "that the extent of relevant conduct in this matter is largely irrelevant given the mandatory minium term of twenty years imprisonment mandated under the penalty provisions of 21 U.S.C. § 841(b)(1)(A)(viii) and § 851." Id. at 9. Movant also agreed and stipulated that he had been previously convicted of a felony drug offense of possession of more than thirty-five grams of marijuana. Id. The Plea Agreement stated that "defendant fully understands that the crime to which a guilty plea is being entered requires a mandatory minimum term of imprisonment of at least twenty (20) years." Id.
With regard to cooperation, the Plea Agreement stated that movant had agreed to assist the government in its ongoing investigation, but that he had not provided substantial assistance as of thedate of the Plea Agreement. Id. at 6. The Plea Agreement further stated that "the government alone will determine whether the defendant's assistance has been substantial enough to warrant the filing of a motion for departure under Section 5K1.1 of the Guidelines or Title 18 U.S.C. Section 3553, or both." Id. at 6.
With regard to representation, the Plea Agreement states that movant was "fully satisfied with the representation he received from his defense counsel," and that movant had "reviewed the government's evidence and discussed the government's case and all possible defenses and defense witnesses with defense counsel." Id. at 16. The Plea Agreement provides that "defense counsel completely and satisfactorily explored all areas [movant] had requested relative to the government's case and any defenses." Id. With respect to coercion, the Plea Agreement states that "neither defense counsel nor the government have made representations which are not included in this document as to the sentence to be imposed." Id. at 3. In addition, the Plea Agreement states that "no person has, directly or indirectly, threatened or coerced [movant] to do or refrain from doing anything in connection with any aspect of this case, including entering a plea of guilty." Id. at 17.
In the Plea Agreement, movant also agreed to waive his right to file an appeal with respect to non-jurisdictional issues. Id. at 3. Movant further waived his right to contest the conviction or sentence in any post-conviction proceeding, except for claims of prosecutorial misconduct or ineffective assistance of counsel. Movant and the government reserved the right to appeal all sentencing issues, "including any issues relating to the determination of the Total Offense Level, the Criminal History Category, and Career Offender Status." Id.
On August 17, 2006, movant appeared with counsel before this Court and pleaded guilty as charged. Movant took an oath to tell the truth and was asked several questions, the purpose of whichwas to establish the voluntariness of his plea. Specifically, movant was asked his age, the extent of his education, whether he was under the influence of alcohol or any drug, and whether he suffered from any mental disease or defect. Hearing Transcript at 2-3. Movant gave appropriate responses to all the questions asked of time. Movant was advised of the charge and the range of punishment, including that he was subject to a statutory mandatory minimum term of twenty years. Id. at 3-4. Movant stated under oath that he understood the charge and the range of punishment. Movant was also asked whether there had been any threats or promises made in exchange for his guilty plea. Id. at 6. Movant responded that there was a letter from the prosecutor stating that if the matter went to trial, the government would file a second §851 notice of enhancement for his two other felony drug convictions, which would increase the statutory mandatory minimum to a term of imprisonment for life. Id. at 7-11. Movant was then asked if, aside from the letter, there were any other threats or promises made by anyone, and movant responded in the negative. Id. at 12. The Court accepted movant's guilty plea, the matter was set for sentencing, and a PSR was ordered.
In the PSR, prepared on November 2, 2006, movant's total offense level was determined to be 33, and his criminal history was calculated to be a category II, based upon a total of five criminal history points. See PSR at 9. The Guidelines' sentencing range was calculated to be 168 to 210 months, however, "since the statutory minimum penalty is twenty years, pursuant to section 5G1.1(b), the guideline range becomes 240 months." Id. at 12.
Movant filed pro se objections to the PRS and moved to withdraw his guilty plea. His motion was formally adopted by his attorney, Mr. Goeke. The undersigned held a sentencing hearing on November 7, 2006. At the hearing, the Court denied movant's motion to withdraw his guilty plea. The Court heard argument regarding movant's objections to the PSR, and movant'sobjections were overruled. The Court also denied movant's request that the Court compel the government to file a substantial assistance motion on movant's behalf. After giving movant an opportunity to be heard, the undersigned sentenced movant to the mandatory minimum term of imprisonment of 240 months pursuant to Title 21, U.S.C. Section 851, followed by 10 years of supervised release.
Movant filed a timely appeal, which was submitted to the Eighth Circuit Court of Appeals on the record of the district court. United States v. Green, 261 Fed. Appx. 922 (8th Cir. 2008). Movant's counsel moved to withdraw, which was denied, and filed a brief under Anders v. California, 386 U.S. 738 (1967). Movant appealed the following issues: (1) the district court erred in denying movant's motion to withdraw his guilty plea prior to sentencing and in not compelling the government to file a downward departure motion based on movant's substantial assistance; (2) the government abused its discretion in refusing to file a Section 5K1.1. motion; and (3) he sentence was unreasonable. On February 4, 2008, the Eighth Circuit Court of Appeals affirmed the judgment of the district court. United States v. Green, 261 Fed. Appx. 922 (8th Cir. Feb. 4, 2008).
In the § 2255 motion presently before the Court, movant asserts four grounds for relief:
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