U.S. v. West

• Decision Date: 31 March 2004
• Docket Number: No. CIV.A.03-884-JJF.,No. CRIM.A.02-031-1-JJF.,CRIM.A.02-031-1-JJF.,CIV.A.03-884-JJF.
• Citation: 312 F.Supp.2d 605
• Parties: UNITED STATES of America, Plaintiff, v. Travis Antonio WEST, Defendant.
• Court: U.S. District Court — District of Delaware

Page 605

312 F.Supp.2d 605

UNITED STATES of America, Plaintiff, v. Travis Antonio WEST, Defendant.

No. CRIM.A.02-031-1-JJF.

No. CIV.A.03-884-JJF.

United States District Court, D. Delaware.

March 31, 2004.

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COPYRIGHT MATERIAL OMITTED

Colm F. Connolly, Esquire, United States Attorney, Anne Y. Park, Esquire, Assistant United States Attorney of the United States Department of Justice, Wilmington, DE, for Plaintiff.

Travis Antonio West, Pro Se Defendant.

MEMORANDUM OPINION

FARNAN, District Judge.

Presently before the Court is a Motion Under 28 U.S.C. § 2255 To Vacate, Set Aside Or Correct Sentence By A Person In Federal Custody (D.I.67) filed by Defendant Travis Antonio West. For the reasons set forth below, the Court will deny Defendant's Motion.

BACKGROUND

On March 15, 2002, Defendant was charged by criminal complaint with conspiracy to distribute five grams or more of cocaine base in violation of 21 U.S.C. §§ 841(b)(1)(B) and 846. A warrant was issued for Defendant's arrest, and he was subsequently apprehended on March 27, 2002.

On April 1, 2002, the Honorable Gregory M. Sleet held a preliminary hearing on the charges. Ronald Marzec, an officer with the Delmar Police Department and a member of the United States Drug Enforcement Administration ("DEA") Task Force, testified on behalf of the Government that he had been conducting an investigation of a crack cocaine distribution organization in the area of Laurel, Delaware. Officer Marzec testified about two undercover buy/bust operations, one on February 16, 2000, and one on March 3, 2000, involving the purchase of crack cocaine by an undercover officer from Defendant. Both of these transactions were monitored by Officer Marzec, because the undercover officer wore a Kel device. The second transaction was also recorded on videotape by the DEA.

Although these transactions occurred in 2000, Defendant was not arrested until 2002, because of an ongoing drug investigation of Defendant and others. The Government also represented to the Court that the police approached Defendant about cooperating with the Government, but Defendant declined.

On April 9, 2002, Defendant and his brother, co-defendant Hitchens, were indicted on charges of (1) conspiracy to distribute cocaine base on February 16, 2000, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C) and 846; (2) distribution of cocaine base on February 16, 2000, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C) and 18 U.S.C. § 2; (3) conspiracy to distribute five grams or more of cocaine base on March 3, 2000, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B) and 846; and (4) distribution of five grams or more of cocaine base on March 3, 2000, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B) and 18 U.S.C. § 2. Shortly after the Indictment issued, the Government sent a letter to Defendant's counsel offering a plea to Count Three of the Indictment. Defendant's counsel was initially unsatisfied with this plea offer, because the charge carried a five year mandatory minimum sentence. However, after several attempts to persuade the Government to offer Defendant a plea to Counts I or II of the Indictment, Defendant's counsel sent a letter to the Government indicating that Defendant had agreed to accept the plea offer and enclosing the signed Memorandum of Plea Agreement.

Defendant entered his guilty plea before the Court on June 19, 2002. Pursuant to the terms of the Plea Agreement, Defendant admitted that he and his co-defendant agreed to sell 12.8 grams of crack to a customer for $700. Defendant negotiated the deal with the customer and his co-defendant delivered the crack and collected the money. The Plea Agreement also apprised Defendant that the penalty for the charges included imprisonment for at least 5 years, but not more than 40 years, a fine of up to $2 million, 4 years of supervised release and a $100 special assessment. Defendant was also placed on notice by the terms of the Plea Agreement that Defendant's sentence would be based upon all his relevant conduct, and the Government intended to argue at sentencing that Defendant was responsible for at least 17.2 grams of crack, which included 4.4 grams from the February 16, 2000 sale and the 12.8 grams from the sale that was the subject of the Plea.

The Court reviewed the Plea Agreement with Defendant at the hearing, and Defendant agreed to the facts as proffered by the Government. The Court accepted Defendant's plea and the matter was scheduled for sentencing.

Prior to sentencing the Government learned of additional relevant conduct on the part of Defendant as a result of the cooperation of his co-defendant. Defense counsel objected to the use of this additional relevant conduct in calculating Defendant's sentencing range under the Guidelines, and the Government agreed to withdraw the additional relevant conduct. However, the Government sought a two point enhancement pursuant to U.S.S.G. § 3B1.1(c) based on Defendant's role as an organizer leader, manager or supervisor in the offense, and Defendant's counsel moved for a downward departure (1) pursuant to U.S.S.G. § 4A1.3 on the grounds that Defendant's criminal history category of II overrepresented the seriousness of his past criminal conduct and the likeliness that he would commit other crimes, and (2) pursuant to U.S.S.G. §§ 5K2.0 and 5H1.6 on the grounds of extraordinary family circumstances. Based on the amount of cocaine involved in the offense, the two point enhancement for his role in the offense, and a three point reduction for the acceptance of responsibility, the Probation Office calculated Defendant's total offense level at 25. With a criminal history category of II, Defendant's guideline range was 63 to 78 months. Without the two point enhancement, Defendant would have an offense level of 23 which would put him at the guideline range of 51 to 63 months.

At the sentencing hearing, the Court denied the Government's request for a two-point enhancement finding that the preponderance of the evidence did not support the Government's assertion that Defendant was an organizer, manager or leader in the offense. The Court also denied Defendant's request for a downward departure. Consistent with the request of Defendant's counsel at the hearing, the Court sentenced Defendant to the mandatory minimum sentence of five years or sixty months imprisonment, and four years of supervised release.

Defendant did not appeal his sentence, but timely filed the instant Section 2255 Motion. By his Motion, Defendant contends that (1) he did not make a knowing, intelligent and voluntary guilty plea; (2) the Indictment violated Apprendi by failing to charge Defendant with the essential elements of the offense; (3) the audio and video recordings of the undercover drug transaction were obtained in violation of Title III and the Fourth Amendment and should be suppressed; and (4) the Court should grant a downward departure based on the Government's misconduct, Defendant's personal characteristics and his post-sentencing rehabilitation efforts. Defendant also contends that his counsel provided ineffective assistance by (1) advising him to plead guilty without investigation; (2) failing to inform him of the mandatory minimum penalty and the essential elements of the offense to which he pled guilty; and (3) failing to raise the above-mentioned arguments to the Court. The Government has filed a response to the motion contending that Defendant's claims are either procedurally barred, not cognizable for collateral review or without merit. Defendant has also filed a Traverse to the Government's Response. Accordingly, this matter is ripe for the Court's review.

DISCUSSION

Although Defendant has not requested an evidentiary hearing, as a preliminary matter, the Court must determine whether an evidentiary hearing is required in this case. Pursuant to Rule 8(a) of the Rules Governing Section 2255 Proceedings, the Court has reviewed the Motion, Answer Brief, Traverse, transcripts and other documents submitted by the parties and concludes that the record is sufficient for the Court to fully evaluate the issues presented by Defendant. Government of the Virgin Islands v. Forte, 865 F.2d 59, 62 (3d Cir.1989) (holding evidentiary hearing not required where motion and record conclusively show movant is not entitled to relief and decision to order hearing is committed to sound discretion of district court); Soto v. United States, 369 F.Supp. 232, 241-242 (E.D.Pa.1973) (holding that crucial inquiry in determining whether to hold hearing is whether additional facts are required for fair adjudication); aff'd, 504 F.2d 1339 (3d Cir.1974). Accordingly the Court concludes that an evidentiary hearing is not required in this case.

I. Whether Defendant's Plea Was Voluntary

By his Motion, Defendant contends that his guilty plea was entered involuntarily as a result of (1) counsel's failure to investigate his case, and (2) his lack of understanding concerning his sentence and the rights he would be waiving by pleading guilty. Defendant did not file a direct appeal, and therefore, his claims were not raised before the Third Circuit. However, Defendant alleges in his Motion that his procedural default should be excused as a result of the ineffective assistance of his counsel.

It is well-established that Section 2255 may not be utilized as a substitute for direct appeal. United States v. Frady, 456 U.S. 152, 165, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982) (collecting cases). Accordingly, federal courts apply a procedural default rule to bar consideration of claims which a defendant could have raised on direct appeal, but did not. Id. at 168, 102 S.Ct. 1584. In order to overcome the procedural bar, a defendant must show "cause" excusing the procedural default and "actual prejudice" resulting from the errors of which he or she complains. Id. at 167-68, 102 S.Ct. 1584. In further defining the "cause and actual prejudice...