Henry v. United States
| Docket Number | 3:23-cv-00559-FDW,20-cr-00038-FDW-DSC-1 |
| Decision Date | 15 September 2023 |
| Parties | DUSTIN BLAIR HENRY, Petitioner, v. UNITED STATES OF AMERICA, Respondent. |
| Court | U.S. District Court — Western District of North Carolina |
THIS MATTER is before the Court on Petitioner's Pro Se Motion to Vacate, Set Aside or Correct Sentence under 28 U.S.C. § 2255. [CV Doc. 1].[1]
On February 13, 2020, Petitioner was charged in a Bill of Information with one count of conspiracy to possess with intent to distribute 500 grams or more of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A) and 846 (Count One); one count of distribution and possession with intent to distribute methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C) (Count Two); and one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) (Count Three). [CR Doc. 14: Bill of Information]. The same day, Petitioner agreed to plead guilty to these three counts in exchange for certain charging concessions by the Government, including foregoing a charge under 18 U.S.C. § 924(c), and the Government filed the factual basis. [CR Doc. 16 at ¶¶ 1-2 Plea Agreement]. Pursuant to the terms of the plea agreement, the parties agreed that more than 5,000 but less than 15,000 grams of methamphetamine were reasonably foreseeable to Petitioner, resulting in a base offense level of 34. [Id. at ¶ 8(a)]. Petitioner stipulated that there was a factual basis for his guilty plea. [Id. at ¶ 11]. The parties reserved the ability to argue specific offense characteristics, enhancements, and departures and variances from the applicable guidelines range. [Id. at ¶ 8(d)]. The Government agreed not to oppose a sentence at the bottom end of the applicable guidelines range determined by the District Court “[b]ecause the Defendant is entering a pre-indictment plea of guilty.” [Id. at ¶ 8(e)]. Petitioner agreed that the factual basis did “not necessarily represent all conduct relevant to sentencing” and that the U.S. Probation Office may submit a statement of relevant conduct. [Id. at ¶ 12]. Petitioner waived his right to challenge his conviction or sentence through a direct appeal or post-conviction action, except for claims of ineffective assistance of counsel and prosecutorial misconduct. [Id. at ¶ 17].
On February 26, 2020, Petitioner waived indictment and a magistrate judge conducted his initial appearance and a Rule 11 colloquy. [CR Doc. 17: Waiver of Indictment; CR Doc. 18: Entry and Acceptance of Guilty Plea]. At the hearing, the magistrate judge confirmed that Attorney David Brown, who was there with Petitioner, had been appointed to represent the Petitioner. [CR Doc. 62 at 7: Plea Tr.]. Petitioner testified that he was “satisfied with Mr. Brown's services ... so far” and that he “wish[ed] for him to continue as [Petitioner's] lawyer.” [Id.]. Petitioner affirmed that he wanted to waive his right to indictment and proceed on the Bill of Information. [Id. at 8]. The magistrate judge reviewed all three charges, including the maximum penalties for each. [Id. at 3-6, 11-12]. Petitioner testified that he had spoken with his attorney about the charges and understood them and the maximum penalties that could apply to those charges. [Id. at 6, 13, 16].
Petitioner testified that he wanted the Court to accept his guilty plea to Counts One, Two, and Three of the Bill of Information. [Id. at 10]. Petitioner testified that he had spoken to his attorney about how the U.S. Sentencing Guidelines might apply to his case and that he understood that the District Judge would not be able to determine his sentence until a presentence report was prepared. [Id. at 13-14]. Petitioner testified that he understood that his sentence may be higher or lower than that called for by the guidelines. [Id. at 14]. Petitioner testified that he understood that, if the sentence is more severe that he expects or the Court does not accept the Government's recommendation, he will still be bound by the plea and would have no right to withdraw it. [Id.]. Petitioner testified that he was in fact guilty of the charges he was pleading guilty to. [Id. at 16]. The Government then reviewed the terms of the plea agreement in detail. [Id. at 16-18]. Among other things, the Government discussed the parties' agreement to jointly recommend that more than 5,000 grams but less than 15,000 grams of methamphetamine were reasonably foreseeable to Petitioner. [Id. at 17]. The Government discussed the parties' agreement that either may argue their respective positions on specific offense characteristics, cross-references, special instructions, enhancements, and adjustments, as well as departures or variances from the applicable guideline range determined by the Court at sentencing. [Id.]. The Government noted that, because Petitioner was entering into a pre-indictment guilty plea, it would not oppose a sentence at the bottom end of the applicable guidelines range determined by the Court at sentencing. [Id.]. The Government noted that Petitioner was aware of his limited rights to withdraw a plea of guilty, had discussed these rights with his attorney, and “knowingly and voluntarily waive[d] any right to withdraw his plea once the magistrate judge has accepted it.” [Id.]. The Government noted that Petitioner had waived all rights to contest his conviction and sentence in any appeal or post-conviction action except for claims of ineffective assistance of counsel and prosecutorial misconduct. [Id. at 18].
Finally, the Government noted the section “on assistance to the Government wherein [Petitioner] agree[d] to cooperate should the United States so request.” [Id.].
Petitioner testified that he understood the terms of the plea agreement and agreed to those terms. [Id. at 19]. Petitioner also affirmed that he understood he was waiving his right to appeal and to challenge his conviction and/or sentence in a post-conviction proceeding. [Id. at 19]. Petitioner affirmed that he had read, understood, and agreed with the factual basis. [Id. at 20]. Petitioner testified that no one had “threatened, intimidated, or forced [him] to enter [his] guilty plea today” and that no one made him any promises of leniency or a light sentence to get him to plead guilty.” [Id.]. Petitioner testified that he was satisfied with the services of his lawyer and that the services “were good.” [Id. at 21]. Finally, Petitioner's attorney, Brown, affirmed that he had reviewed the case with Petitioner, particularly the terms of the plea agreement, and that he, Brown, was satisfied that Petitioner understood its terms “and knows what he's doing.” [Id.]. After finding that Petitioner's plea was knowingly and voluntarily made, the magistrate judge accepted it. [Id. at 22; CR Doc. 18 at 4: Acceptance and Entry of Guilty Plea].
Before sentencing, a probation officer prepared a Presentence Investigation Report (PSR). [CR Doc. 23: PSR]. On Counts One and Two, the probation officer recommended a base offense level of 34 based on Petitioner's responsibility for at least 5,000 grams but less than 15,000 grams of methamphetamine. [Id. at ¶ 19 (citing U.S.S.G. §2D1.1(a)(5))]. The probation officer recommended a two-level firearm enhancement and a two-level enhancement for making a credible threat of violence during a drug transaction,[2] yielding an adjusted offense level of 38. [Id. at ¶¶ 20-21 (citing U.S.S.G. §§ 2D1.1(b)(1), 2K2.1(b)(2))]. After cross-reference under §2K2.1(c)(1)(A), the adjusted offense level for the three counts was 38. [Id. at ¶ 29]. After a three-level reduction for acceptance of responsibility, the total offense level was 35. [Id. at ¶¶ 3537]. With a criminal history category of IV, the guidelines yielded a sentencing range of 235 to 293 months' imprisonment. [Id. at ¶¶ 54, 89]. Petitioner objected to the two-level credible-threat-of-violence enhancement, arguing that his having the weapon in his waistband and moving his shirt to show it to the female victim during a drug transaction was not a credible threat of violence. [CR Docs. 25, 38].
On May 20, 2021, Petitioner filed a pro se letter with the Court seeking new counsel and to withdraw his guilty plea. [CR Doc. 28]. In this letter, Petitioner voiced numerous issues with his attorney and the proceedings. [See id.]. He claimed that he was “under duress and felt pressured into” pleading guilty; that he unsuccessfully tried to contact and have his family contact his attorney within the 14-day grace period to withdraw his plea; that the drug amount he agreed to, 0 to 500 grams, changed to 5,000 to 15,000 grams at the time he signed the plea agreement; that Attorney Brown told him his criminal history category was III and his offense level 32, but these changed “after getting [his] PSR back” to IV and 34, respectively; that Brown failed to explain what an appeal was or the appeal process; that Brown failed to explain the plea agreement “to where [Petitioner] understood it” and Petitioner did not know what he was signing; that there was a conflict of interest because Brown and Assistant United States Attorney (AUSA) Kaufman, the prosecutor, were “really close friends” and Brown had been Kaufman's boss; and that communication with Brown was an “ongoing issue” throughout the representation. [Id. at 1-2]. Petitioner asked for a new attorney and to withdraw his plea agreement. [Id. at 3]. The Court deferred ruling on Petitioner's motions until they were properly submitted by Petitioner's counsel of record. [5/21/2021 Text order].
On June 17, 2021, Petitioner filed a counseled motion for inquiry of status of counsel. [CR Doc. 29]. In this motion Petitioner's attorney painted a very different picture. [Seeid.]. ...
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