United States v. Eversole

• Decision Date: 03 October 2016
• Docket Number: Criminal Action No. 6:13-7-DCR-CJS,Civil Action No. 6:16-93-DCR-CJS
• Parties: UNITED STATES OF AMERICA, Plaintiff, v. BRENDA EVERSOLE, Defendant.
• Court: U.S. District Court — Eastern District of Kentucky

UNITED STATES OF AMERICA, Plaintiff,
v.
BRENDA EVERSOLE, Defendant.

Criminal Action No. 6:13-7-DCR-CJS
Civil Action No. 6:16-93-DCR-CJS

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY NORTHERN DIVISION (at London)

October 3, 2016

REPORT AND RECOMMENDATION

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On May 31, 2016, Defendant Brenda Eversole, pro se, filed a Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255. (R. 372). The United States filed a Response to the Motion (R. 387), to which Defendant filed a Reply. (R. 392). Having all relevant documents before the Court, the matter is ripe for consideration and issuance of a Report and Recommendation. 28 U.S.C. § 636(b). For the reasons stated below, it will be recommended that Defendant's Motion to Vacate, Set Aside, or Correct Sentence (R. 372) be denied.¹

I. FACTUAL HISTORY

The relevant facts supporting Eversole's guilty plea and conviction can be found in her Presentence Report ("PSR"). (R. 357).² In the summer of 2012, law enforcement in Laurel County,

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Kentucky, began receiving complaints about methamphetamine trafficking occurring in the area. (Id. at 3). Specifically, Shane Begley, Deborah Vaughn, and Robert L. Sisco were identified as individuals who were transporting large quantities of high-grade methamphetamine into Kentucky from Georgia. (Id.). Eversole was eventually identified as a distributor who received most of her supply from Begley. (Id.). Her role in the conspiracy started around September 2012, when she began buying at least two, sometimes up to three, ounces of methamphetamine from Begley approximately every four days until her arrest in January 2013 (approximately thirty-five occasions).³ (Id. at 7). She paid Begley for the drugs in advance and, after receiving the drugs, she would distribute a portion to co-conspirators and keep a portion for her own personal use. (Id.).

II. PROCEDURAL BACKGROUND

On February 28, 2013, a federal grand jury returned an indictment against Eversole⁴ charging her with Conspiracy to Distribute 500 Grams or More of a Mixture or Substance Containing Methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and 21 U.S.C. § 846, as well as a forfeiture allegation. (R. 1). Eversole was ultimately arrested in March of 2013. At her arraignment proceeding on March 12, 2013, Eversole pleaded not guilty and a trial was set for May 28, 2013, before District Judge Danny C. Reeves. (R. 51).

A. Guilty Plea and Sentencing

On May 15, 2013, Eversole filed a Motion for Rearraignment. (R. 112). The Court granted the Motion and rearraignment was held on June 14, 2013. (R. 119). Eversole appeared with counsel at the rearraignment hearing to enter a guilty plea to the single count Indictment and the forfeiture

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allegation. (R. 149). Eversole did not enter into a written plea agreement; however, the United States agreed to move for a three-level reduction in recognition of Eversole's acceptance of responsibility. (Id.). As there was no plea agreement, Eversole did not waive her right to appeal.

At the rearraignment hearing, Eversole was placed under oath. (R. 267 at 2-3). The District Court questioned Eversole extensively to ensure that she was competent to plead guilty, understood the rights she was giving up by pleading guilty, and was aware of the factors the Court considers when imposing a sentence. (Id. at 3-31). Counsel for Eversole confirmed that Eversole wished to proceed with her guilty plea without the benefit of a written plea agreement. (Id. at 4). The Court asked Eversole if anyone had made any promises to her to induce or persuade her to enter a plea of guilty, to which she responded, "No, sir." (Id. at 9). Eversole denied that anyone had made any threats or in any way forced her to enter a plea of guilty in the case. (Id. at 9-10).

The Court went over the potential penalties Eversole faced by pleading guilty in order to ensure that she understood the maximum penalties that could be imposed by law. (Id. at 10-11). The Court further explained how the sentencing guidelines operate and how they may be applied in Eversole's case. (Id. at 13-17). Specifically, Eversole was informed that the sentencing guidelines are based upon two primary factors, the first being the offense level for the crime charged and the second being defendant's criminal history, if any. (Id. at 14). The Court advised Eversole that those two factors would be taken together to determine a guideline range for the Court to consider, in conjunction with other factors, when imposing sentence on her. (Id. at 14-17).

The Court informed Eversole that, after the plea but before sentencing, a PSR would be prepared by the Probation Office and that she would be able to review it with counsel and file any objections she may have to its contents. (Id. at 14). Eversole was advised that her objections to the

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report, if any, would be ruled upon prior to sentencing and that, until the objections were ruled upon, it would be impossible to know the sentencing guideline range applicable to her case. (Id. at 14-15). The Court informed Eversole of the rights she was giving up by pleading guilty, including the right to a speedy trial by jury, right of confrontation of witnesses, and the right to remain silent. (Id. at 18-20). When Eversole was asked if she understood that she was giving up these rights by pleading guilty, she responded in the affirmative. (Id. at 20).

Turning to the facts of this case, the Court asked Eversole to state in her own words the conduct that rendered her guilty of the charge against her. (Id. at 22). She responded, "I had - - was propositioned by Shane Begley, and I conspired with him, and I purchased dope off him, and then sold it to someone else." (Id.). Eversole admitted that her conduct occurred sometime between January 2010 and January 21, 2013, and that at least part of the conduct occurred in Laurel County, Kentucky. (Id. at 22-23). The Court advised Eversole that, if her case were to proceed to trial, the United States would be required to prove that two or more persons conspired or agreed to knowingly and intentionally distribute 500 grams or more of a mixture or substance containing a detectable amount of methamphetamine and that Eversole knowingly and voluntarily joined in that conspiracy. (Id. at 24-25). When asked if she believed that the Government could prove those elements against her, as far as her involvement in the crime was concerned, she again replied, "Yes, sir." (Id. at 25).

After the colloquy, the Court concluded that Eversole was fully competent and capable of entering an informed plea. (Id. at 27). The Court further found that the plea was knowing and voluntary, and supported by an independent basis in fact containing the essential elements of the offense charged. (Id.). As such, the Court accepted Eversole's plea and adjudged her guilty of the substantive count as well as the forfeiture allegation and set a date for sentencing. (Id.).

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Following Eversole's rearraignment and prior to her sentencing hearing, the Probation Office prepared the PSR. (R. 357). The PSR contained an extensive review of the facts of this case and provided that, based on Eversole's statement to law enforcement, she was responsible for approximately 2.060 kilograms of methamphetamine during the conspiracy. (Id. at 8, ¶ 25). This calculation placed Eversole at a base offense level of 34.⁵ (Id. at 12, ¶ 52). With the three level reduction for acceptance of responsibility, Eversole's final base offense level was 31. (Id. at 13, ¶ 55). The PSR also contained an analysis of Eversole's background, including her criminal history. (Id. at 19-22, 13-19). Eversole's criminal history yielded a criminal history score of 12 and a criminal history category of V. (Id. at 17, ¶ 73). Based on Eversole's total offense level of 31 and criminal history category of V, she had a Sentencing Guidelines range of 168 to 210 months of imprisonment.

On October 25, 2013, Eversole appeared with counsel for sentencing.⁶ (R. 212). Although Eversole did not file any written objections to the contents of the PSR, counsel for Defendant made an oral objection to the quantity of methamphetamine that was attributed to Eversole. (R. 268 at 9-11). Counsel argued that Eversole was under the influence of methamphetamine at the time she made her statement to law enforcement that she was receiving approximately two ounces of the drug

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per week. (Id. at 10). According to counsel, Eversole was actually only receiving about half of that amount and, if the Court subtracted the amount of methamphetamine that Eversole had been using herself, the amount would drop down below 1.5 kilograms which would reduce her base offense level, and therefore the length of her sentence. (Id. at 10-11).

With respect to the PSR's conclusions on this point, the Court heard testimony from Probation Officer Robinson, who credited Eversole's initial statement to police, which was corroborated by two of her co-conspirators, to the effect that Eversole was receiving two ounces of methamphetamine from Begley approximately every four days. (Id. at 13-15). Officer Robinson further testified that he had calculated that two ounces, or fifty-six grams, multiplied by thirty-five, the approximate number of occasions Defendant received drugs from Begley during the conspiracy, totaled 1.960 kilograms.⁷ (Id.). After hearing the testimony, the Court overruled the objection, finding by a preponderance of the evidence that the quantity of drugs had been properly attributed to Eversole in the PSR. (Id. at 15-16). The Court stated it believed the calculation of the amount of drugs distributed to Eversole to be correct and, even with a reduction for her personal use, such a reduction would not change the Sentencing Guidelines range. (Id. at 15). Eversole made no further objections to the PSR; the Court sentenced her to a term of incarceration of 190 months. (Id. at 30).

B. Direct Appeal

Eversole appealed...