U.S. v. Marsh, 3:06cr61/MCR.

• Decision Date: 27 March 2008
• Docket Number: No. 3:06cr61/MCR.,No. 3:07cv367/MCR/MD.,3:06cr61/MCR.,3:07cv367/MCR/MD.
• Citation: 548 F.Supp.2d 1295
• Parties: UNITED STATES of America v. Catrina MARSH.
• Court: U.S. District Court — Northern District of Florida

548 F.Supp.2d 1295

UNITED STATES of America v. Catrina MARSH.

No. 3:06cr61/MCR.

No. 3:07cv367/MCR/MD.

United States District Court, N.D. Florida, Pensacola Division.

March 27, 2008.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

George Francis Murphy, George F. Murphy PA, Valparaiso, FL, for Catrina Marsh.

David L. Goldberg, US Attorney, Pensacola FL, for United States of America.

ORDER

M. CASEY RODGERS, District Judge.

This cause comes on for consideration upon the magistrate judge's report and recommendation dated January 31, 2008. The defendant previously has been furnished a copy of the report and recommendation and has been afforded an opportunity to file objections pursuant to Title 28, United States Code, Section 636(b) (1), and I have made a de novo determination of those portions to which an objection has been made.

Having considered the report and recommendation and all objections thereto timely filed by the parties, I have determined that the report and recommendation should be adopted.

Accordingly, it is now ORDERED as follows:

1. The magistrate judge's report and recommendation is adopted and incorporated by reference in this order.

2. The motion to vacate, set aside, or correct sentence (doc. 93) is DENIED.

DONE AND ORDERED.

REPORT AND RECOMMENDATION

MILES DAVIS, United States Magistrate Judge.

This matter is before the court upon a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255.¹ (Doc. 93). The government has filed a response (doc. 98) and the defendant has not filed a reply, despite having been afforded the opportunity in which to do so. The matter is referred to the undersigned magistrate judge for report and recommendation pursuant to 28 U.S.C. § 636 and N.D. Fla. Loc. R. 72.2(B). After a careful review of the record and the arguments presented, it is the opinion of the undersigned that defendant has not raised any issue requiring an evidentiary hearing, Rules Governing Section 2255 Cases 8(a) and (b), and that the motion should be denied.

I. BACKGROUND

Defendant was charged in a single count information with conspiracy to possess with intent to distribute 5 kilograms or more of a mixture and substance containing a detectable amount of cocaine, and fifty (50) grams or more of a mixture and substance containing cocaine base in violation of 21 U.S.C. § 841(b)(1)(A) (ii) and (iii). (Doc. 76). represented by appointed counsel George F. Murphy, on June 1, 2006 defendant waived her right to be charged by indictment and pleaded guilty to the information pursuant to a standard written plea and cooperation agreement. (Doc. 78-81).

The written statement of facts in support of guilty plea provided that the defendant was part of a criminal organization that imported multiple kilograms of cocaine per month from January 2005 through May of 2006 into the Northern District of Florida. (Doc. 81). This cocaine was distributed in the form of both powder and cocaine base, and co-defendants were caught with both substances as well as firearms. In fact, defendant was the only conspirator not separately charged with using a firearm in connection with a drug trafficking offense.

Sharon Dixon and Rafael Goodwin, two of the co-conspirators in this case, distributed powder and crack cocaine to confidential informants as part of controlled buys. Telephone conversations during which they talked about their drug organization were also intercepted, and they were identified as being armed when conducting their drug transactions. (Doc. 81 at 1-2). Goodwin and Avarah Williams purchased drugs, and distributed some as powder and cooked the rest into crack for distribution. Co-defendants Tabitha Dixon and S. Dixon lived together in multiple homes that were being used as "stash houses" for the cocaine they were distributing. T. Dixon was identified as distributing 20 grams of crack cocaine for the organization and had also been caught with a loaded weapon and a large quantity of cash. (Id. at 3).

Defendant Marsh possessed over 10 grams of crack cocaine at her home upon her arrest. She was identified as the "driving partner" for Sharon Dixon, and as knowingly allowing her home to be used as a "stash house" for S. Dixon. (Doc. 81 at 3). She also was aware of what S. Dixon was doing when they went out selling cocaine together.

The statement of facts noted that Goodwin, S. Dixon, T. Dixon, Marsh and Williams all were working to reap the financial benefits of the distribution of cocaine and cocaine base and "all but Marsh actually possessed handguns in furtherance of such activity." (Doc. 81 at 3). Finally, it provided that the organization distributed "well over 5 kilograms of cocaine and 50 grams of crack cocaine" during the time specified in the indictment. (Doc. 81 at 3-4).

The plea proceeding for defendant and co-conspirators Rafeal Goodwin, Sharon Dixon, Avarah Williams, and Tabitha Dixon was held on June 1, 2006. The charging documents charged each defendant with conspiracy to possess with intent to distribute a controlled substance and each defendant except defendant Marsh with using or carrying a firearm in furtherance of a drug trafficking crime. (Doc. 97 at 6-7). When asked by the court, defense counsel indicated that he had gone over the defendant's plea and cooperation agreement in considerable detail with her, as well as the statement of facts. (Doc. 97 at 40). The court went over some of the provisions of the agreements, in particular emphasizing that any predictions of sentence or suggestions that a defendant might be eligible for a substantial assistance motion were not binding or guaranteed. (Id. at 50-52). The court warned the defendants that they were bound by the facts presented in the statement of facts but that the government could come forward at sentencing to introduce additional facts to try to support an adjustment in the sentence. (Id. at 64). Defendant Marsh accepted the statement of facts as presented as it pertained to her. (Id. at 66).

In the PSR, defendant was held accountable for distribution of 5.6 kilograms of crack cocaine, yielding a base offense level of 38. She received a two level decrease pursuant to § 2D 1.1(b)(7)² because she met the criteria set forth in subdivisions (1)-(5) of subsection (a) of § 5C1.2 (Limitation on Applicability of Statutory Minimum Sentences in Certain Cases). She also received a two level increase pursuant to § 2D1.1 (b)(1) due to the seizure of firearms and ammunition from her residence and storage unit and her awareness of the purpose of these items. She received a three level reduction for acceptance of responsibility pursuant to § 3E 1.1(b) for a total offense level of 35. With defendant's criminal history category of I, the applicable advisory guidelines range was 168 to 210 months.

At sentencing counsel noted that defendant did not remember making the quantity of trips listed in the PSR, although this did not affect the guidelines calculation, and stated that the PSR could be relied upon for sentencing. (Doc. 98, exh. 2 at 4). The application of the safety valve was discussed, as well as the fact that it was essentially offset by the adjustment for co-conspirator possession of a firearm. (Id. at 6-8). On August 23, 2006, defendant was sentenced to a term of 168 months imprisonment, at the low end the applicable guidelines range to take into account her cooperation, her education and her lack of significant criminal history. (Id. at 9). She did not appeal. The present motion was timely filed on August 22, 2007.

II. LEGAL ANALYSIS

Because collateral review is not a substitute for direct appeal, the grounds for collateral attack on final judgments pursuant to § 2255 are extremely limited. A prisoner is entitled to relief under section 2255 if the court imposed a sentence that (1) violated the Constitution or laws of the United States, (2) exceeded its jurisdiction, (3) exceeded the maximum authorized by law or (4) is otherwise subject to collateral attack. 28 U.S.C. § 2255; Thomas v. Crosby, 371 F.3d 782, 811 (11th Cir.2004); United States v. Phillips, 225 F.3d 1198, 1199 (11th Cir.2000); United States v. Walker, 198 F.3d 811, 813 n. 5 (11th Cir.1999). "Relief under 28 U.S.C. § 2255 `is reserved for transgressions of constitutional rights and for that narrow compass of other injury that could not have been raised in direct appeal and would, if condoned, result in a complete miscarriage of justice.'" Lynn v. United States, 365 F.3d 1225, 1232 (11th Cir.2004) (citations omitted). "[A] non-constitutional error that may justify reversal on direct appeal does not generally support a collateral attack on a final judgment, unless the error (1) could not have been raised on direct appeal and (2) would, if condoned, result in a complete miscarriage of justice." Lynn, 365 F.3d at 1232-33 (citations omitted); Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962) (error of law does not provide basis for collateral attack unless claimed error constituted a "fundamental defect which inherently results in a complete miscarriage of justice."). The "fundamental miscarriage of justice" exception recognized in Murray v. Carrier, 477 U.S. 478, 496, 106 S.Ct. 2639, 2649, 91 L.Ed.2d 397 (1986), provides that it must be shown that the alleged constitutional violation "has probably resulted in the conviction of one who is actually innocent...."

Although section 2255 mandates that the court conduct an evidentiary hearing "unless the motion and files and records conclusively show that the prisoner is entitled to no relief," a defendant must support his allegations with at least a proffer of some credible supporting evidence. See Chandler v. McDonough, 471 F.3d 1360 (11th Cir.2006) (citing Drew v. Dept. of Corrections, 297 F.3d 1278, 1293 (11th Cir.2002)) (referring to "our clear precedent establishing that such allegations are not enough to warrant an evidentiary hearing in the absence of any...