United States v. Evans
| Decision Date | 29 June 2018 |
| Docket Number | Civil No. 17-1336,Criminal No. 15-252 |
| Parties | UNITED STATES OF AMERICA, v. RONDELL EVANS, Defendant. |
| Court | U.S. District Court — Western District of Pennsylvania |
MEMORANDUM OPINION
This matter is before the Court on a Motion to Vacate, Set Aside or Correct Sentence under 28 U.S.C. § 2255, ("Motion"), filed by pro se Defendant Rondell Evans ("Defendant"), (Docket Nos. 149), his Brief in Support, (Docket No. 150), and the Government's opposition thereto, (Docket No. 163). Defendant maintains that his sentence should be vacated and that he should be resentenced as the Court erroneously assessed criminal history points for a prior youthful offender adjudication under New York law. (Docket Nos. 149; 150). The Government contends that the motion is procedurally defective and otherwise without merit as Defendant was sentenced to 72 months' incarceration pursuant to his Rule 11(c)(1)(C) plea agreement with the Government and the alleged error in computing his criminal history had no bearing the advisory guidelines range in his case, which was 60 months' incarceration due to the mandatory minimum penalty of the offense of conviction. (Docket No. 163). After careful consideration of the parties' submissions and for the following reasons, Defendant's Motion [149] is denied.
A federal grand jury returned a three count indictment against Defendant and several other individuals on November 19, 2015 charging him with two counts: (Count One) conspiracy to distribute and possess with intent to distribute 28 grams or more of crack cocaine, contrary to the provisions of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(iii), and in violation of 21 U.S.C. § 846, from January 2015 through November 2015; and (Count Two) possession with intent to distribute 28 grams or more of crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(iii), on or about November 2, 2015. (Docket No. 1). The potential penalties for such offense included a mandatory minimum penalty of five years' incarceration and up to a term of forty years' incarceration. See 18 U.S.C. §§ 841(a)(1), (b)(1)(B)(iii). There was no pretrial litigation in this case, with the only motion being filed a request by the defense for a Pre-Plea Presentence Investigation Report, which was produced and provided to the parties without any objections being lodged to same. (See Docket Nos. 64; 67).
On April 20, 2016, Defendant appeared before the Court and pled guilty to Count One of the Indictment pursuant to a plea agreement with the Government wherein the parties stipulated that the appropriate sentence in this case includes: a term of imprisonment of six years (or 72 months), a term of supervised release of 4 years, a special assessment of $100 and any fine to be determined by the Court. (See Docket Nos. 81; 82; 163-1 (Plea Letter dated 4/4/16)). As is the Court's practice, it conducted an extensive colloquy with Defendant to confirm that he was competent, understood the Constitutional and other rights that he was waiving by entering a guilty plea, and that he was knowingly and voluntarily pleading guilty to Count One. (See Docket No. 156 at 4-7). The Court then addressed the terms of the plea agreement directly with Defendant, who assented, under oath, that: he had discussed all relevant matters pertaining to the plea agreement with his counsel; to the extent that he had not consulted with his counsel on a particular point, he was provided the opportunity to do so at the hearing; and, he was knowingly and voluntarily accepting the terms of the plea agreement and the waivers contained therein,including waiving his right to appeal the judgment and sentence to the Court of Appeals. (Docket No. 156 at 19-23). The Court deferred acceptance of the parties' plea agreement until reviewing the Presentence Investigation Report, ("PIR"). (Id. at 24). Although the prior youthful offender adjudication was not specifically brought up during the hearing, at the Court's request, the prosecutor stated that he believed the advisory guidelines range in the case was 46 to 57 months' incarceration to which defense counsel responded "[w]hat [the prosecutor] says is what Mr. Evans and I had gone over based upon what was known to us for prior record score and the offense level we are dealing with here." (Id. at 34-5). Defendant asserted to the Court that he understood that the Court was not bound by any sentencing recommendations, that he could be sentenced up to the maximum penalty permitted by statute, and acknowledged that he was subject to a mandatory minimum penalty of 5 years and up to 40 years' incarceration. (Id. at 29, 35). After confirming that Defendant was fully informed of the charges, the potential penalties for same, and the rights that he was waiving, the Court accepted his guilty plea to Count One. (See id.).
The Probation Office included three criminal history points for the youthful offender adjudication as part of its computations of Defendant's criminal history score, which resulted in a total criminal history score of six and criminal history category of III. (PIR at ¶ 27). With respect to the advisory guidelines range, the PIR clearly states that:
Guideline Provisions: Based upon a total offense level of 21 and a criminal history category of III, the guideline imprisonment range is 46 months to 57 months. However, the statutorily required minimum sentence of 5 years is greater than the maximum of the applicable guideline range; the guideline term of imprisonment is 60 months. USSG §5G1.1(b).
(PIR at ¶ 46). No objections were raised challenging the Probation Office's computations of the advisory guidelines, or to any other aspect of the PIR, and the Court set forth the samecomputations in its Tentative Findings and Rulings issued on August 8, 2016. (Docket No. 114).
At sentencing, no objections were lodged to the PIR or the Tentative Findings and Rulings, which were adopted as the Court's final rulings on the advisory guidelines range. (Docket No. 148 at 6-7). The Court also stated that the advisory guidelines range was 60 months because of the mandatory minimum penalty but that the parties had agreed to a sentence of 72 months' incarceration per the plea agreement. (Id. at 7). Both parties advocated that the Court accept their plea agreement and impose the agreed upon sentence. (Id. at 8-9). During the proceedings, Defendant objected to the assertion that he was on parole during the offense conduct and, after much discussion between he, counsel, the Court and the Probation Officer, it was explained to him that he pled guilty to a conspiracy count which spanned the time frame including when he was on parole in July of 2015. (Id. at 13-15). The Court asked Defendant if he understood to which he responded, "Yeah, it's cool." (Id. at 15). After careful consideration of the § 3553(a) factors, and for reasons detailed on the record, the Court accepted the parties' plea agreement and imposed their agreed-upon sentence of 72 months' incarceration; 4 years' supervised release; and $100 special assessment. A fine was waived given Defendant's inability to pay and the Court dismissed Count 2 upon an oral motion by the Government. All told, the record reveals that at no time prior to the imposition of sentence did Defendant raise any objection to the assessment of criminal history points for the youthful offender adjudication.
Defendant did not appeal his conviction or sentence to the Court of Appeals. (See generally Docket Report 15-252). In January and March of 2017, Defendant filed two motions seeking free copies of transcripts of the change-of-plea and sentencing hearings for the purposes of pursuing a motion under 28 U.S.C. § 2255. Both motions were denied because Defendant failed to demonstrate an entitlement to free transcripts pursuant to 28 U.S.C. § 753(f) andapplicable precedent. (Docket Nos. 140; 146). In the initial Order entered on January 5, 2017, the Court noted that Defendant had failed to articulate any basis upon which a potential motion under § 2255 would rely. (Docket No. 140). The Court stated in the Order entered on March 17, 2017 that Defendant claimed that he was entitled to free transcripts to pursue a claim that his counsel was ineffective for failing to file a notice of appeal upon his direction. (Docket No. 146). The Court once again rejected such arguments, holding that Defendant had knowingly and voluntarily: pled guilty to Count One; agreed to a sentence of 72 months' incarceration pursuant to Rule 11(c)(1)(C) which was above the advisory guidelines range of 60 months' incarceration, i.e., the mandatory minimum sentence, pursuant to his plea agreement with the Government; and, waived his appellate rights. (Id.). The Court further noted that it is not ineffective assistance for his counsel to not file an appeal which would have constituted a material breach of the plea agreement. (Id. at 3 ().
On October 17, 2017, Defendant filed his § 2255 Motion and Brief in Support. (Docket No. 149; 150). Defendant's submissions are all dated July 24, 2017 and he claims that he had placed such materials in the prison mail around that time but they were not delivered for some unknown reason. (Id.). The Court advised Defendant of his rights under United States v. Miller, 197 F.3d 644 (3d Cir. 1999) and he requested an opportunity to amend his § 2255 Motion, which the Court granted, setting a deadline of March 14, 2018 for Defendant to submit an amendment. (Docket Nos. 151; 154; 155). No such amendme...
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