United States v. Crockett

• Decision Date: 31 December 2013
• Docket Number: Civil Action No. 11-cv-02612-CMA,Criminal Action No. 07-cr-00172-CMA-6
• Parties: UNITED STATES OF AMERICA, Plaintiff, v. BREVELLE CROCKETT, Defendant/Movant.
• Court: U.S. District Court — District of Colorado

UNITED STATES OF AMERICA, Plaintiff, v. BREVELLE CROCKETT, Defendant/Movant.

Civil Action No. 11-cv-02612-CMA

Criminal Action No. 07-cr-00172-CMA-6

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

DATED: December 31, 2013

Judge Christine M. Arguello

ORDER DENYING § 2255 HABEAS PETITION

This matter is before the Court on Petitioner Brevelle Crockett's pro se Motion to Vacate His Sentence pursuant to § 28 U.S.C. § 2255 (Doc. # 1636). For the reasons stated below, this Court denies the motion.

I. BACKGROUND

In April of 2007, a 102-count indictment was returned against Mr. Crockett and 23 co-defendants, detailing all of the defendants' participation in a wide-ranging conspiracy to distribute mainly crack and powder cocaine. Thereafter, in July of 2007, a 113-count superseding indictment was returned, which comprised many of the same allegations. (Doc. ## 1; 372)

In January 2008, two separate motions to suppress electronic surveillance evidence were filed by co-defendants of Mr. Crockett. Mr. Crockett joined in those motions but both were denied by the Court. (Doc. ## 486, 614, 819, 864, 866).

On June 7, 2008, Crockett filed another Motion to Suppress. His motion was denied as moot, however, at a motion hearing held on June 18, 2008, after he filed a Notice of Disposition and a Statement in Advance of Plea of Guilty. (Doc. ## 1111; 1156; 1157; 1160.)

Thereafter, on June 25, 2008, Crockett pled guilty to Count 100 of the Superseding Indictment by admitting that he knowingly possessed with intent to distribute more than 500 grams of a substance and mixture containing a detectable amount of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B) and 18 U.S.C. § 2. He also confessed to the forfeiture allegation contained in Count 102 of the Superseding Indictment. (Doc. ## 1175; 1180; 1181). In exchange for his guilty plea, the government dismissed all remaining charges against him. (Doc. # 1363; 1367.)

This Court conducted a change of plea hearing to determine whether Mr. Crockett was entering his plea in accord with protections afforded criminal defendants under the Constitution. At the hearing, Mr. Crockett stated he was "satisfied with the counsel, representation, and advice" of his counsel and had no "complaints about his [counsel's] work for [him]." (Doc. # 1647, at 21). Crockett further notified the Court that he had discussed with his counsel: (1) whether or not he should enter a guilty plea; (2) his right to go to trial as well as other constitutional rights; (3) his plea bargain; and the nature and elements of the crime. (Id. at 21-22.)

The Court then explained to Mr. Crockett that he could be sentenced to a term of imprisonment of up to 40 years but no less than 5 years, and that at sentencing it would consider the Pre-Sentence Investigation Report ("PSR") and the sentencing guidelines in order to determine an appropriate sentence. The Court noted that Mr. Crockett'sguideline range "could be as high as 210 to 262 months" and as low as "37 to 46 months," but that, regardless of the final determination, the guideline range was not "binding on the Court," and the Court could impose any sentence it found to be reasonable as long as it was within the "statutory maximum" sentence of 40 years. (Id. at 24-28.) Mr. Crockett acknowledged that this sentencing regime would apply to his case. (Id. at 24-25).

Next, the Court asked the government to summarize what its evidence would be if Crockett were to proceed to trial. The government responded as follows:

[T]he defendant engaged in a pattern of acquiring kilogram quantities of cocaine, converting kilogram quantities into crack cocaine, and then distributing those quantities of crack cocaine over a period of time.

[T]he defendant conspired with Courtney McCoy, Rusty Martinez, and other persons both known and unknown to the Government to distribute and to possess with the intent to distribute cocaine and crack cocaine. And specifically, the Government contends that the evidence would show that during this conspiracy, that [Mr. Crockett] was a member and involved with the possession and distribution of more than 5 kilograms of cocaine and more than 4.5 kilograms of crack cocaine.

In furtherance of the conspiracy, the evidence would show that [Mr. Crockett] purchased cocaine from Courtney McCoy, the transactions starting with 4 ½ ounces of crack cocaine in 2004, and moving eventually up to kilos of powder cocaine.

The evidence would also show that [Mr. Crockett] purchased an average of 1 to 2 kilos of cocaine per week from Rusty Martinez in 2006. The evidence also showed that in furtherance of the conspiracy, that [Mr. Crockett] directed a taxi driver to take him to deliveries on several occasions, and this was observed by [police] surveillance.

[I]ntercepted communications [between the co-conspirators] showed that [Mr. Crockett] depended on the taxi driver, identified as Weldon Pleas[,] to take him to these transactions. When [Mr. Crockett] was arrested, investigators also found 11 ounces of crack cocaine at the residence where he was arrested.

There were communications that were intercepted in conjunction with the wiretap investigation in which Mr. Crockett . . . spoke with Courtney McCoy. On one such occasion, on May 25[,] 2006, agents intercepted Courtney McCoy and [Mr. Crockett] discussing the cooking of crack cocaine, the problems that Mr. Crockett was having cooking up that crack cocaine, and following that Mr. McCoy would come over and assist him in basically fixing this problem.

The defendant also obtained his cocaine supplies from Rusty Martinez. And as to the specific count to which he's pleaded guilty in this case, [on] January 29, 2007, agents intercepted a telephone call between Rusty Martinez, one of his sources, who agreed to sell [Mr. Crockett] 1 kilogram of cocaine for $16,000. Then agents intercepted a call in which Rusty Martinez directed an unknown male to sell to [Mr. Crockett] his kilo and collect the money from him. Following that phone call, surveillance observed [Mr. Crockett] arrive at the arranged address discussed on the phone to complete the transaction. He arrived at the meeting in a taxicab. After the meeting [Mr. Crockett] returned to the cab and went into the trunk. Shortly thereafter, surveillance conducted a traffic stop of the taxicab and discovered approximately 1 kilogram of cocaine in the car. They also found a handgun in the cab. The gun was under the front seat of the cab, and [Mr. Crockett] was sitting in the back seat of the cab. The cocaine was located inside a coat that was found in the trunk.

And the driver of the cab stated at the time that the handgun belonged to him. The cocaine was sent to a lab for a number of tests. Authorized lab found that in fact the substance that was seized from the cab was cocaine and was in excess of 500 grams. And in addition, the forensic investigator acquired a latent print from the gray duct tape in which the kilogram of cocaine was wrapped, and a latent fingerprint matching the left middle finger of [Mr. Crockett] was found.

In addition, there were calls that were intercepted by agents after the stop occurred between [Mr. Crockett] and Rusty Martinez discussing the seizure of the cocaine.

(Id. at 41-44.)

The Court then asked Mr. Crockett if he disagreed with the government's description of the evidence it would admit against him. In turn, Mr. Crockett responded that he did not know Mr. McCoy, a co-conspirator, in 2004, but only first met him in 2006. Mr. Crocket further clarified that he disagreed with what the other defendants hadalleged about the amount of drugs Mr. Crockett had helped to distribute, suggesting that instead of cocaine he sometimes purchased only marijuana from other co-conspirators. Neither of these disagreements would substantively have impacted the charge to which Mr. Crockett pleaded guilty. (Id. at 53-54.) Further, when the Court asked Mr. Crockett if he was "pleading guilty freely and voluntarily because [he] was guilty of [the] crime and for no other reason," Mr. Crockett responded "Yes." (Id. at 54.)

Prior to sentencing, the probation officer prepared a PSR, which calculated Mr. Crockett's base offense level at 38. (Doc. # 1638). Noting that the Court could subtract two points if it found the "safety valve" provision applicable and that three more points should be subtracted for timely acceptance of responsibility, the PSR calculated the contingent total offense level at 33. With Crockett's criminal history category I, the PSR noted that the advisory Guideline range was 135 to 168 months. (Id. at 13-15, 20.) Neither Crockett nor the Government objected to the PSR or any of its contents. (Doc. # 1648).

At sentencing, the Court determined that Mr. Crockett's base offense level was 38. The Court then applied a two-level "safety valve" decrease and a three-level decrease for timely acceptance of responsibility, yielding a total offense level of 33. (Doc. # 1488, at 18-19.) With his criminal history category of I, Crockett's advisory Guideline range was 135 to 168 months. Id. at 19. In the absence of any downward departure request or motion for variance, after consideration of sentencing factors pursuant to 18 U.S.C. § 3553(a), the court sentenced Crockett to 135 months' imprisonment. (Id. at 4, 19.)

II. DISCUSSION

A. STANDARD OF REVIEW FOR A 2255 PETITION

Mr. Crockett, invoking 28 U.S.C. § 2255, advances a number of challenges to the sentence he received for his role in the drug conspiracy. Pursuant to 28 U.S.C. § 2255(b), Mr. Crockett is entitled to relief "[i]f the court finds that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack . . . ." Here, Mr. Crockett alleges that the denial of his constitutional rights arises from...