United States v. Murdock
| Decision Date | 07 February 2022 |
| Docket Number | 6:16-CR-60015-SOH-MEF-1 |
| Parties | UNITED STATES OF AMERICA PLAINTIFF/RESPONDENT v. RASHEEN MURDOCK, DEFENDANT/MOVANT |
| Court | U.S. District Court — Western District of Arkansas |
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
Before the Court is Defendant/Movant's Motion Under 28 U.S.C § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody filed on July 7, 2021. (ECF No 151). The United States filed its response on August 11 2021. (ECF No. 153). Defendant/Movant has not filed a reply. The matter is ready for report and recommendation.
On May 11, 2016, Defendant/Movant, Rasheen Murdock (“Murdock”), was named in an Indictment charging him with conspiracy to distribute methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 846. (ECF No. 1). Murdock was arrested in Modesto, California on August 19, 2016 (ECF No. 33), and Rule 5 documents were received from the Eastern District of California on August 29, 2016 (ECF No. 26). Murdock appeared for arraignment on October 3, 2016, at which time he entered a not guilty plea to the Indictment. (ECF No. 29). Travis J. Morrissey (“Morrissey”), a CJA Panel attorney, was appointed to represent Murdock. (ECF No. 29; Text Only Order entered October 3, 2016). The case was set for jury trial on October 26, 2016. (ECF No. 30). Morrissey filed a Motion for Continuance (ECF No. 31) on October 3, 2016, and it was granted by an Order (ECF No. 32) entered on October 4, 2016. The jury trial was reset for February 2, 2017.
On January 26, 2017, Morrissey filed a second Motion for Continuance (ECF No. 42), indicating that he was involved in plea negotiations with the United States Attorney and needed more time to review any proposed plea agreement. The continuance was granted on January 27, 2017, and the jury trial was reset for May 3, 2017. (ECF No. 43). On April 24, 2017, Morrissey filed a third Motion for Continuance (ECF No. 51), again indicating he was involved in plea negotiations with the United States Attorney and needed more time to review any proposed plea agreement. The continuance was granted on the same date, and the jury trial was reset for August 9, 2017. (ECF No. 52). A similar Motion for Continuance (ECF No. 55) was filed by Morrissey on July 18, 2017, and it was granted by Order entered on July 19, 2017 (ECF No. 56), with the jury trial being reset for September 25, 2017.
On September 13, 2017, a Superseding Indictment was issued by the Grand Jury charging Murdock with one count of conspiracy to distribute methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 846, and one count of aiding and abetting in the distribution of more than 50 grams of actual methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(viii), and 18 U.S.C. § 2. (ECF No. 57). The following day, Morrissey filed a Motion for Continuance of the jury trial set for September 25, 2017, so he could confer with Murdock about the Superseding Indictment. (ECF No. 61). The continuance was granted by Order entered on September 15, 2017, and the jury trial was reset for December 7, 2017. (ECF No. 62). Murdock was arraigned on the Superseding Indictment on September 21, 2017, and he entered a not guilty plea to the Superseding Indictment. (ECF No. 65).
On November 20, 2017, Morrissey filed a Motion for Continuance (ECF No. 66), indicating that a short continuance of the jury trial may prove to be fruitful in plea negotiations. A continuance was granted on November 27, 2017, with the jury trial being reset for February 26, 2018. (ECF No. 67).
Morrissey filed a Motion for Detention Hearing on January 12, 2018. (ECF No. 69). A detention hearing was held by Magistrate Judge Barry A. Bryant on January 25, 2018. (ECF No. 73). Murdock was ordered detained (Id.), and a separate Order for Detention (ECF No. 74) was entered on January 25, 2018.
On February 15, 2018, Morrissey filed a Motion for Continuance (ECF No. 82), in which he referred to a letter (ECF No. 82-1) received by the United States Attorney from Co-Defendant, Remando Dorn, stating that Murdock was innocent of any crime relating to the investigation, and indicating that the Government may be looking to file an additional charge claiming the letter was obtained through coercion. Morrissey requested more time to confer with Murdock regarding this development, to prepare for a potential new charge, and to determine if Murdock wished to continue to reject any plea offers. A continuance was granted on February 16, 2018, and the jury trial was reset for April 23, 2018. (ECF No. 83).
A Second Superseding Indictment was filed on March 6, 2018, charging Murdock with one count of conspiracy to distribute methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 846, one count of aiding and abetting in the distribution of more than 50 grams of actual methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(viii), and 18 U.S.C. § 2, and one count of witness tampering, in violation of 18 U.S.C. § 1512(b)(1). (ECF No. 84). On March 15, 2018, the Government filed its Notice of Intention to Seek Enhancement Pursuant to 21 U.S.C. § 851(a)(1), and Murdock was arraigned on the Second Superseding Indictment, at which time he entered a plea of not guilty. (ECF Nos. 92, 93).
A three-day jury trial was held on April 23-25, 2018. (ECF Nos. 100, 102, 103, 143). The jury returned verdicts of guilty on all three counts charged in the Second Superseding Indictment. (ECF No. 109).
An initial Presentence Investigation Report (“PSR”) was prepared by the United States Probation Office on August 24, 2018. (ECF No. 121). Timely objections to the PSR were made by both Murdock and the Government. (ECF Nos. 125, 128). The PSR was revised to resolve all the objections offered by the Government. (ECF No. 129-1, p. 1). Murdock's objection to the PSR's incorrect reference to a plea agreement in paragraph 23 resulted in revision to that paragraph. Id., p. 2. No changes to the PSR were made in response to Murdock's other objections. Id., pp. 2-4.
A final PSR was submitted to the Court on October 25, 2018. (ECF No. 129). The PSR determined that Murdock was accountable for 326.0389 grams of actual methamphetamine. Id., ¶¶ 33, 44. Based on that drug quantity, Murdock's base offense level on Count One, conspiracy to distribute methamphetamine, was determined to be 32. Id., ¶ 44. A two-level enhancement was applied as Murdock was determined to be an organizer, leader, manager, or supervisor of the criminal activity. Id., ¶ 47. A two-level enhancement was also applied for obstruction of justice. Id., ¶ 48. No reduction was given for acceptance of responsibility. Id., ¶ 51. Murdock's total offense level was determined to be 36. Id., ¶ 52. Murdock had six criminal history points placing him in criminal history category III. Id., ¶ 58. The statutory maximum term of imprisonment on Count One (conspiracy to distribute methamphetamine) was 20 years; the mandatory minimum term of imprisonment on Count Two (distribution of more than 50 grams of actual methamphetamine) was 20 years, with the statutory maximum being life imprisonment; and the statutory maximum term of imprisonment on Count Three (witness tampering) was 20 years. Id., ¶ 80. Based upon a total offense level of 36 and a criminal history category of III, Murdock's advisory guidelines imprisonment range was reported to be 240 to 293 months. Id., ¶¶ 79, 81.
Murdock appeared with his counsel for sentencing on June 12, 2019. (ECF Nos. 134, 144). Upon inquiry by the Court, Murdock stated that he was satisfied with his counsel. (ECF No. 144, p. 5). The Government moved to withdraw its notice of intent to seek a § 851(a)(1) enhancement, and the Court granted the motion. Id., p. 12. This resulted in a mandatory minimum sentence of 10 years, instead of 20 years, on Count Two. Id., pp. 12-13. The Court determined that Murdock had an opportunity to read and discuss the PSR and revisions with his counsel. Id., pp. 14. The Court noted that the Government's objections to the initial PSR had been resolved by the Probation Officer, which the Court found to be appropriate. Id., pp. 14-16. The Court then addressed Murdock's 11 objections to the PSR, finding they had all been properly addressed by the Probation Officer and that no further changes to the PSR were warranted, except that the guidelines range should be adjusted from 240-293 months imprisonment down to 235-293 months imprisonment because of the Government's withdrawal of the § 851(a)(1) enhancement. Id., pp. 16-27. The Court then summarized the guidelines range and statutory penalties, to which counsel agreed. Id., pp. 27-29.
Following argument from counsel and a brief statement from Murdock, the Court discussed the § 3553(a) factors and found that no downward departure or variance was warranted. (ECF No. 144, p. 41-44). The Court imposed a low-end guidelines sentence of 240 months imprisonment on each count of conviction, to run concurrently, followed by five years[1] of supervised release, no fine, no restitution, and a $100 special assessment on each count of conviction. (ECF No. 134; ECF No. 144, pp. 43-44). Judgment was entered by the Court on June 20, 2019. (ECF No. 136).
Murdock timely filed a direct appeal to the Eighth Circuit Court of Appeals. (ECF No. 138). Morrissey moved to withdraw and filed a brief under Anders v. California, 386 U.S. 738 (1967), arguing that Murdock's sentence was substantively unreasonable. (ECF No. 146-2). In a pro se brief, Murdock raised several issues related to the pre-trial proceedings the trial, and sentencing. Id. In an Opinion and Judgment filed on March 16, 2020, the Eighth Circuit affirmed Murdock's convictions and...
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