United States v. Sanders, Case No. 5:08cr12/RS/CJK
| Decision Date | 01 August 2012 |
| Docket Number | 5:09cv273/RS/CJK,Case No. 5:08cr12/RS/CJK |
| Parties | UNITED STATES OF AMERICA, v. JERROD JASON SANDERS, Defendant. |
| Court | U.S. District Court — Northern District of Florida |
This matter is before the court upon defendant's motion to vacate, set aside, or correct sentence (doc. 79), filed pursuant to 28 U.S.C. § 2255. The matter is referred to the undersigned magistrate judge for report and recommendation pursuant to 28 U.S.C. § 636 and NORTHERN DISTRICT OF FLORIDA LOCAL RULE 72.2(B). Having conducted a careful review of the record and the arguments presented, the undersigned concludes that the motion should be denied.
The defendant, Jerrod Jason Sanders, and co-defendant, Michael Louketis, were charged with conspiracy to possess with intent to distribute fifty grams or more of cocaine base (Count I), in violation of 21 U.S.C. §§ 841(b)(1)(A)(iii), and 846. (Doc. 1, p. 1). The defendant and co-defendant were also charged with possession with intent to distribute fifty grams or more of cocaine base (Count II), in violation of 21 U.S.C. § 841(b)(1)(A)(iii), and 18 U.S.C. § 2. (Doc. 1, p. 2). The defendant entered a plea of guilty to all counts as charged (doc. 83, p. 76), and the district court sentenced him to 328 months' imprisonment on Counts I and II (the terms to run concurrently). (Doc. 70, p. 33).
The facts giving rise to the defendant's present motion follow. On October 30, 2006, an undercover police officer arrested coconspirator Jermiah White after conducting a controlled buy of a small quantity of cocaine base (commonly known as crack cocaine) in a Panama City, Florida, hotel room. (PSR ¶ 7).1 Following the arrest, Mr. White admitted that between September 1, 2006, and October 30, 2006, he had traveled to Panama City to assist Jerrod Jason Sanders and Michael Louketis with the distribution of cocaine base. (PSR ¶ 8). Mr. White told police the defendant and co-defendant were residing at Unit 309 of the Edgewater Condominiums in Panama City. (PSR ¶ 9). Mr. White reported seeing multiple ounces of cocaine base in the condominium just days prior to his arrest. (PSR ¶ 9). Mr. White also revealed the defendant was wanted in Georgia on state charges of trafficking in cocaine. (Doc. 83, p. 17).
Based on the information provided by Mr. White, police officers proceeded to the Edgewater Condominiums to arrest the defendant on his outstanding out of state warrant. (Doc. 83, pp. 17-19). After talking with Mr. Louketis, police entered the residence and eventually placed the defendant under arrest. (Doc. 83, p. 43). In a consensual search of the condominium, the police officers seized more than 100 grams of cocaine base, as well as drug paraphernalia associated with the manufacture and distribution of cocaine base. (PSR ¶ 9). On March 18, 2008, the defendant and co-defendant, Louketis, were charged in Counts I and II of the indictment with conspiracy to possess with intent to distribute more than fifty grams of cocaine base, and possession with intent to distribute more than fifty grams of cocaine base. (Doc.1).
The defendant, represented by Edmund Quintana, filed a motion to suppress the evidence seized during the search of the condominium. (Doc. 35). Following the denial of the motion (doc. 83, pp. 61-62), the defendant entered into a plea and cooperation agreement with the U.S. Attorney for the Northern District of Florida, whereby he agreed to plead guilty to Counts I and II of the indictment and cooperate with the government's investigations, while reserving the right to appeal the denial of his motion to suppress. (Doc. 47). The plea and cooperation agreement provided that "[t]he parties agree that the sentence to be imposed is left solely to the discretion of the District Court." (Doc. 47, p. 3). The agreement also specifically provided that "[t]he United States Attorney will not recommend a specific sentence," and "[d]efendant understands that any prediction of the sentence which may be imposed is not a guarantee or a binding promise." (Doc. 47, pp. 3, 6). The agreement concluded, "There are no other agreements between the United States Attorney, Northern District of Florida and the Defendant, and the Defendant enters this agreement knowingly, voluntarily and after having conferred with counsel." (Doc. 47, p. 8).
The court also conducted a model plea colloquy with the defendant. (Doc. 83, pp. 62-78). The defendant confirmed he had discussed the terms of the plea and cooperation agreement with his lawyer and understood them. (Doc. 83, pp. 73-74). The defendant reiterated that his plea and cooperation agreement represented his entire agreement with the government. (Doc. 83, p. 73). The defendant denied that there were any secret or undisclosed promises that had been made to him that were not written in the agreement. (Doc. 83, p. 73). He also denied that anyone had madeany promises to him (other than those in the plea and cooperation agreement) to induce him to plead guilty. (Doc. 83, pp. 73-74). Mr. Sanders expressed his satisfaction with his attorney and had no complaints about the attorney's performance. (Doc. 83, p. 74).
After the defendant and his attorney received a copy of the presentence investigation report, they raised two objections relevant to the present motion. First, the defendant objected to the amount of cocaine base attributed to him in the presentence investigation report. (Doc. 87-2, pp. 1-2). The defendant asserted he was not responsible for 8.5 kilograms of cocaine base during the duration of the conspiracy. Prior to the sentencing hearing, Mr. Quintana discussed this objection with the prosecutor and withdrew it because the threshold amount for the same sentencing level was 4.5 kilograms of cocaine base and the defendant's own interview with law enforcement implicated a quantity exceeding that amount. (Doc. 70, p. 12; Doc. 87-5, pp. 2-4; PSR ¶ 18).
The defendant's other objection to the presentence investigation report concerned the offense level adjustment for his role in the offense. (Doc. 87-2, p. 2). Defendant contended it was improper for him to be considered a manager or supervisor of criminal activity that involved five or more participants or was otherwise extensive. (Doc. 87-2, p. 2); U.S. SENTENCING GUIDELINES MANUAL § 3B1.1(b) (2007). Defendant's counsel continued to voice this objection at the sentencing hearing. (Doc. 70, pp. 4, 29-30). The court denied the objection after listening to testimony from DEA Special Agent Michael Clear concerning the nature of the conspiracy and the defendant's role in it. (Doc. 70, pp. 12-31).
At the sentencing hearing on August 13, 2008, Mr. Quintana requested thedefendant receive a sentence below that recommended by the sentencing guidelines. (Doc. 70, p. 31). Mr. Quintana argued that a sentence of fourteen to eighteen years, a sentence closer in length to the one received by Mr. Louketis, would be more appropriate than the one provided for in the guidelines. (Doc. 70, p. 31). The court sentenced the defendant to 328 months' imprisonment, within the guideline range of 292 to 365 months. (Doc. 70, pp. 33-34). Mr. Quintana did not raise any objections to the sentence other than those that he had previously mentioned. (Doc. 70, p. 36). The court informed the defendant of his right to appeal his sentence. (Doc. 70, p. 36). The court asked the defendant if he had any questions and the defendant replied that he did not. (Doc. 70, p. 36). The court then concluded the sentencing hearing. (Doc. 70, p. 36).
The defendant submitted notice of his intent to appeal on August 19, 2008. (Docs. 62 & 63). The defendant subsequently filed a motion to dismiss the appeal with prejudice on October 31, 2008. (Doc. 87-3). The Court of Appeals for the Eleventh Circuit granted the motion to dismiss on November 26, 2008. (Doc. 76).
Pursuant to 28 U.S.C. § 2255, the defendant timely filed the instant motion to vacate, set aside, or correct sentence (doc. 79), asserting four grounds on which he believes he is being held in violation of the Constitution, laws, or treaties of the United States. The government filed a response in opposition (doc. 87), and the defendant filed a reply to the response. (Doc. 91). The defendant contends trial counsel rendered ineffective assistance by: (1) failing to reduce the government's alleged plea offer of ten years into writing pursuant to FEDERAL RULE OF CRIMINAL PROCEDURE 11 (c)(1)(C), and advising defendant not to reveal the ten-year plea offerto the court; (2) failing to object to the amount of cocaine base attributed to the defendant; (3) failing to object to the defendant's sentence enhancement as a manager or supervisor of criminal activity; and (4) failing to ask the sentencing judge to exercise his discretion in cases involving cocaine base, as established by Kimbrough v. United States, 552 U.S. 85 (2007). (Doc. 79, pp. 17-30).
As a preliminary matter, the court notes certain general rules applicable in § 2255 proceedings following direct appeals, as well as the distinction between review under § 2255 and direct appeal. "Generally speaking, an available challenge to a criminal conviction or sentence must be advanced on direct appeal or else it will be considered procedurally barred in a § 2255 proceeding." Mills v. United States, 36 F.3d 1052, 1055 (11th Cir. 1994). "A ground of error is usually 'available' on direct appeal when its merits can be reviewed without further factual development." Id. "A claim not raised on direct appeal is procedurally defaulted unless the petitioner can establish cause and prejudice for his failure to assert his claims on direct appeal." McCoy v. United States, 266 F.3d 1245, 1258 (11th Cir. 2001). "Further, a § 2255 movant cannot argue as the causal basis for his failure to advance an argument on direct appeal that the argument only became known to the movant due to...
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