U.S. v. Sanders

• Decision Date: 04 May 1999
• Docket Number: No. Civ.A.3:96CV267WS.,No. Crim. 3:93-CR-66WS.,Civ.A.3:96CV267WS.,Crim. 3:93-CR-66WS.
• Court: U.S. District Court — Southern District of Mississippi
• Parties: UNITED STATES of America v. Jonny Lamont SANDERS.

74 F.Supp.2d 677

UNITED STATES of America v. Jonny Lamont SANDERS.

No. Civ.A.3:96CV267WS.

No. Crim. 3:93-CR-66WS.

United States District Court, S.D. Mississippi, Jackson Division.

May 4, 1999.

COPYRIGHT MATERIAL OMITTED

Jonny Lamont Sanders, Memphis, TN, plaintiff pro se.

Victoria May, U.S. Attorney's Office, Jackson, MS, for United States of America, defendant.

ORDER DENYING MOTION TO VACATE OR MODIFY SENTENCE

WINGATE, District Judge.

Before the court is the motion of the defendant Jonny Lamont Sanders to vacate or modify his sentence pursuant to Title 28 U.S.C. § 2255.¹ The defendant argues that his 10-year sentence should be vacated or reduced because his guilty plea was involuntary, unknowing, and the result of ineffective counsel. The defendant also argues that this court erred when it accepted the stipulation of the parties that 980 marijuana plants were seized by authorities when the defendant was arrested. The defendant refers to this stipulation as being based on "tainted" evidence because plants without roots may have been included in the count. Finally, defendant says that his trial counsel rendered ineffective assistance when he failed to suppress evidence seized at the defendant's home pursuant to a warrantless search.

The United States suggests that this petition is procedurally barred because the defendant agreed in his Memorandum of Understanding with the United States that he would waive his right to appeal his sentence and any right to seek post-conviction relief in exchange for the United States' promise not to prosecute the defendant as a felon in possession of a firearm. Otherwise, says the United States, the defendant presents no justification for the granting of habeas corpus relief in this case.

I. BACKGROUND

The defendant was convicted in this court on January 24, 1994, of manufacturing in excess of 100 plants² of marijuana in violation of Title 21 U.S.C. § 841(a)(1)³ and was sentenced to serve 120 months (10 years) in the custody of the United States Bureau of Prisons pursuant to Title 21 U.S.C. § 841(b)(1)(B)(vii).⁴ The defendant's ten-year sentence was based upon his knowing and voluntary plea of guilty to the charge of manufacturing over 100 marijuana plants and upon his prior conviction on July 26, 1989, for selling cocaine. In exchange for the defendant's guilty plea, and pursuant to his agreement to waive both the right to appeal his sentence and the right to raise a post-conviction habeas corpus challenge to his conviction and sentence, the United States dismissed its charge against the defendant under Title 18 U.S.C. § 922(g)(1)⁵ which prohibits a convicted felon from possessing a firearm of any kind.

The defendant thereafter moved for modification of this sentence pursuant to Title 18 U.S.C. § 3582,⁶ contending that Amendment 516 to United States Sentencing Guidelines § 2D1.1(c), became effective November 1, 1995, and was given full retroactive effect, if applicable, in accordance with § 1B1.10 of the Sentencing Guidelines which authorizes sentence reductions where guidelines are amended during a defendant's term of imprisonment. Amendment 516 changed the "equivalency" rating for marijuana offenses under Title 21 U.S.C. § 841(b)(1). Prior to Amendment 516, the Sentencing Guidelines followed the statutory equivalency rating of one marijuana plant equals one kilogram of marijuana. See United States Sentencing Guidelines § 2D1.1(c)(4) (1994); and Title 21 U.S.C. § 841(b)(1)(A)(vii) (1994). Amendment 516, however, reduced the equivalency to one plant equals 0.1 kilogram or 100 grams of marijuana. The defendant asked this court to apply Amendment 516 and reduce his sentence, notwithstanding that the weight of the marijuana plants in his possession at the time of his arrest had no bearing on his sentence. This court found that the defendant was sentenced pursuant to the applicable statutory minimum under Title 21 U.S.C. § 841(b)(1)(B)(vii) for manufacturing over 100 marijuana plants, regardless of weight. This court further found that any argument contending that the weight of the marijuana was or should be a factor in the defendant's sentence ignored the phrase "regardless of weight" found at Title 21 U.S.C. § 841(b)(1)(B)(vii).⁷ Thus, inasmuch as the defendant's sentence was based on a stipulation between the government and the defendant that over 100(980) marijuana plants were being cultivated by the defendant at the time of his arrest, and not upon the weight of some mixture or substance containing marijuana, this court concluded that the weight of the marijuana discovered in the defendant's possession had no bearing on his sentence. Defendant's motion to modify his sentence on this basis was found to be without merit and was denied. Subsequently, the defendant filed the instant petition for habeas corpus relief pursuant to Title 28 U.S.C. § 2255.

II. THE PLEA AGREEMENT: IS THERE A PROCEDURAL BAR BASED ON DEFENDANT'S WAIVER OF APPEAL AND COLLATERAL RELIEF

The United States contends that this petition is procedurally barred because of the defendant's agreement not to seek collateral relief which is contained in the aforesaid Memorandum of Understanding entered into between the defendant and the United States.

Plea bargain agreements are "contractual in nature and are to be construed accordingly." United States v. Moulder, 141 F.3d 568, 571 (5th Cir.1998), citing Hentz v. Hargett, 71 F.3d 1169, 1173 (5th Cir.), cert. denied, 517 U.S. 1225, 116 S.Ct. 1858, 134 L.Ed.2d 957 (1996); and United States v. Ballis, 28 F.3d 1399, 1409 (5th Cir.1994). An informed and voluntary waiver of post-conviction relief is effective to bar such relief, and the appropriateness of such waivers in proper circumstances is beyond question. See United States v. Wilkes, 20 F.3d 651, 653 (5th Cir.1994), citing United States v. Abarca, 985 F.2d 1012, 1014 (9th Cir.1993), cert. denied, 508 U.S. 979, 113 S.Ct. 2980, 125 L.Ed.2d 677 (1993). However, such waivers may not always apply to collateral attacks based upon ineffective assistance of counsel. Id. at 653; and see United States v. Henderson, 72 F.3d 463, 465 (5th Cir.1995) (dismissal of an appeal based on a waiver in the plea agreement is inappropriate where the defendant's motion to withdraw the plea incorporates a claim that the waiver was tainted by ineffective assistance of counsel). In view of the exception set forth in Henderson, and inasmuch as the defendant's petition claims that he received ineffective assistance of counsel, this court concludes that the petition is not procedurally barred.

III. DEFENDANT'S CLAIM THAT HIS PLEA WAS INVOLUNTARY

a. The Plea Agreement was Knowing and Voluntary

The defendant blames his attorney for his guilty plea, contending that counsel should have known that a prior drug-related felony conviction in state court would be used to "enhance" the defendant's sentence. Defendant is referring to the provision of Title 21 U.S.C. § 841(b)(1)(B) (see footnote 4) which provides that the five-year sentence ordinarily imposed under that statute will be doubled to ten years where the defendant has a prior conviction for a felony drug offense which has become final. According to the defendant, counsel and the United States forced the defendant to enter a plea under Title 21 U.S.C. § 841(b) in violation of the defendant's rights under the Fifth⁸ and Fourteenth⁹ Amendments to the United States Constitution. The defendant contends that he was forced to incriminate himself, and that his guilty plea, as well as his waiver of appeal and post-conviction relief, were unknowing and involuntary because, according to the defendant, he did not know his punishment could be "enhanced" or increased. However, as shall be shown below, the plaintiff knew prior to entering into a plea agreement with the United States that he was charged with manufacturing in excess of 100 plants of marijuana in violation of Title 21 U.S.C. § 841(a)(1); that he also was charged as a convicted felon in possession of a firearm in violation of Title 18 U.S.C. § 922(g)(1); that a sentence of at least thirty years could be imposed if the defendant went to trial and was convicted; and that the United States would recommend a sentence not in excess of ten years if the defendant would enter a guilty plea.

The defendant offers no evidence to support either his contention that he did not understand the crimes with which he was charged and the possible maximum sentence he faced when he entered his guilty plea, or that he was misinformed regarding these matters by counsel and the United States and forced to enter a plea. Moreover, the transcript of the defendant's plea proceedings undermines these contentions. Prior to the defendant's guilty plea, the following exchanges took place between the court, the United States, and the defendant:

THE COURT: Now, you and your attorney have been talking to Mr. Dowdy this morning about a potential plea. Then you understand that if there are some aspects of the plea that interest you, then you should pursue it. On the other hand, if you are not interested in it, then, of course, trial will be set for you. And I believe your case is going to be first on the trial calendar. So, you understand that?

THE DEFENDANT: Yes, sir.

THE COURT: All right. And the next thing is you should, as much as possible, try to determine what the appropriate sentence guideline range will be. Now, you might not be able to do it with the same mathematical precision that the probation officer will do it, but you and your attorney should try to get a ballpark figure as to what the guideline range would be so you would know what you are confronted with, you see?

THE DEFENDANT: Yes, sir.

THE COURT: And also, you should know what the recommendation would be and how that would affect the guideline range. Understand that?

THE DEFENDANT: Yes, sir. My attorney and I, we had talked and we got, like I said, a ballpark figure of how much time I would...