United States v. Whisonant
| Decision Date | 03 March 2020 |
| Docket Number | Civil No.: ELH-19-2002,Criminal No. ELH-17-191 |
| Parties | UNITED STATES OF AMERICA, Respondent, v. GREGORY WHISONANT, a/k/a "Geez," Petitioner. |
| Court | U.S. District Court — District of Maryland |
Petitioner Gregory Whisonant has filed a motion under 28 U.S.C. § 2255, seeking to vacate, set aside, or correct sentence. ECF 216. It is supported by a memorandum in excess of 50 pages (ECF 216-1) (collectively, the "Petition"), and several exhibits, including Petitioner's Affidavit. ECF 216-2. In particular, Whisonant asserts multiple claims of ineffective assistance of trial and appellate counsel.
The government opposes the Petition. ECF 235. It asserts, id. at 1: "Whisonant's claims either fail under the performance prong or cannot satisfy the prejudice prong of Strickland v. Washington, 466 U.S. 668, 687 (1984)."
No hearing is necessary to resolve the Petition. For the reasons that follow, I shall deny the Petition.
Whisonant was the leader of a drug trafficking organization ("DTO") in Baltimore that distributed more than one kilogram of heroin. See ECF 149 (Plea Agreement), ¶ 6(a) (Factual Stipulation); Presentence Report ("PSR", ECF 166), ¶ 6. The Drug Enforcement Administration conducted a wiretap investigation into the drug shop, which led to Whisonant's arrest in May 2017. Law enforcement recovered 350 grams of heroin at his residence, along with a loaded firearm, packaging material, and more than $10,000 in cash. Id.
On July 11, 2017, a federal grand jury returned a Superseding Indictment (ECF 63), charging Whisonant and three others with various crimes. In particular, Whisonant was charged as follows: conspiracy to distribute one kilogram or more of heroin from January 2017 through March 21, 2017, in violation of 21 U.S.C. § 846 (Count One); possession with intent to distribute heroin, in violation of 21 U.S.C. § 841(a)(1) (Count Two); possession of a firearm (i.e., a loaded Glock 17, 9mm handgun) in furtherance of a drug trafficking crime, to wit, the offense charged in Count Two, in violation of 18 U.S.C. § 924(c) (Count Three); and possession of a firearm by a prohibited person, in violation of 18 U.S.C. § 922(g)(1) (Count Four). Harry McKnett, a seasoned criminal defense attorney, was appointed to represent Whisonant. See ECF 42.
As the government notes, the offenses "carried stiff penalties." ECF 235 at 2. Moreover, based on Whisonant's criminal history, he was eligible for a sentencing enhancement that, at the time, would have increased his mandatory minimum sentence under Count One from ten years to life imprisonment ("851 Enhancement"). In particular, at the time, 21 U.S.C. § 841(b)(1)(A) (2017) provided: "If any person commits a violation . . . after two or more prior convictions for a felony drug offense have become final, such person shall be sentenced to a mandatory term of life imprisonment without release . . . ." See also ECF 201 (Rearraignment Tr.) at 17-18 ().
Whisonant expressed displeasure with his lawyer. On March 13, 2018, after an attorney inquiry hearing, Ryan Burke, another veteran defense attorney, was appointed to represent him. ECF 137; ECF 140. Soon after, Whisonant entered into a written Plea Agreement with the government. ECF 149.
Pursuant to the Plea Agreement (ECF 149), Petitioner pleaded guilty on April 25, 2018, to Counts One and Three of the Superseding Indictment. ECF 148. Count One carried a ten-year mandatory minimum term of imprisonment, and Count Three carried a mandatory minimum sentence of five years, consecutive. ECF 194, ¶ 3. The government agreed to recommend a "reasonable" sentence after consideration of the final advisory Guidelines range. ECF 149, ¶ 15. Of import here, the government agreed not to seek a § 851 Enhancement. Id. ¶ 10. It also agreed to dismiss the remaining counts. Id. ¶ 15.
During the Rule 11 proceedings, the Court pointed out to Whisonant that the government's agreement to recommend a reasonable sentence was not "a specific promise of any particular sentence." ECF 201 at 20. The defendant indicated he understood. Id. The Court also said, id.: "And also, sir, what you think is reasonable and what the government thinks is reasonable could be worlds apart." Again, the defendant said he understood. Id.
Under the Plea Agreement, Whisonant agreed as follows: (1) he was subject to a 4-level enhancement under U.S.S.G. § 3B1.1(a) because he led a drug organization that involved five or more participants; (2) at sentencing, the government could introduce evidence of Whisonant's advance knowledge of a murder committed by another member of the drug shop; and (3) he waived his right to appeal his sentence and conviction. See ECF 149, ¶¶ 6(b)(i), 8, 16. Whisonant also agreed that he qualified as a Career Offender, and, as to Count One, he therefore had a base offense level of 37 under § 4B1.1(b)(1) of the advisory United States Sentencing Guidelines ("Guidelines" or "U.S.S.G."). Id. ¶ 6(b)(i). Further, Whisonant agreed that, as to the firearms offense, his Guidelines were governed by U.S.S.G. § 4B1.1. ECF 149, ¶ 6(b)(ii). And, the parties agreed that, under § 4B1.1(c)(3), his advisory sentencing Guidelines range was 360 months to life imprisonment. Id.
By statute, Petitioner faced at least a 15-year mandatory minimum sentence, with a maximum possible sentence of life imprisonment. As the government puts it, ECF 235 at 3: "The sum of these agreements allowed Whisonant to avoid a mandatory life sentence—under the scheme in effect at the time of his sentencing—while also allowing Whisonant to argue for a sentence as low as 15 years' imprisonment."
The PSR (ECF 166) determined that Whisonant qualified as a Career Offender, with a base offense level of 37 for Count One. Id. ¶ 20. In effect, this rendered moot the four-level enhancement under § 3B1.1(a). After deductions for acceptance of responsibility under § 3E1.1(a), (b). Whisonant's final offense level for Count One was 34. Id. ¶ 23.
As a Career Offender, Whisonant had a criminal history category of VI. See ECF 166, ¶ 49. The PSR noted, however, that even if Whisonant were not a Career Offender, his criminal history was still a Category VI. Id. ¶ 46.
The PSR reflected that Whisonant had numerous prior convictions. See ECF 166, ¶¶ 28-45. These included a 1997 conviction in Maryland for possession with intent to distribute CDS. Id. ¶ 29. Also, the PSR added two points under U.S.S.G. § 4A1.1(d), because Whisonant committed the underlying federal offenses while on probation in Maryland for a 2013 conviction for possession with intent to distribute CDS. See id. ¶¶ 29, 47. Therefore, defendant had a total of 17 criminal history points. Id. ¶ 48.1
According to the PSR, Whisonant's Guidelines range for both counts called for a period of incarceration ranging from 322 to 387 months. Id. ¶ 114. This differed from the Plea Agreement. The government acknowledged the corrected Guidelines in its presentence memorandum. See ECF 175 at 4.
Sentencing took place on July 19, 2018. See ECF 178. The Court determined that Whisonant qualified as a Career Offender. ECF 202 at 10. The Court also reviewed the discrepancy in the Guidelines range, as between the Plea Agreement (360 months to life) and the PSR (322 to 387 months). The Court agreed with the calculations in the PSR. See ECF 202 at 7-11.
The government recommended a sentence of 360 months of incarceration. Whisonant advocated for a 180-month sentence, which was the lowest possible sentence he could receive, given the mandatory minimums applicable to Count One and Count Three. ECF 174; ECF 175.
As contemplated by the Plea Agreement, the government also presented evidence of intercepted, recorded telephone calls, including a call that captured in real time the murder of Donya Rigby, a young, street-level drug dealer for Whisonant's DTO. See ECF 202 (Sentencing Tr.) at 15-21.
According to the government, the defendant knew of the DTO's plan to kill Rigby, and he went to the scene to witness the murder. However, the defendant disputed any involvement in Rigby's murder. ECF 202 at 21-23. Defense counsel said, id. at 23: "Quite frankly, my client couldn't even pick Mr. Rigby out of a photo array . . . ." The recorded phone calls are discussed in more detail, infra.
Before imposing sentence, the Court expressly considered the objectives of sentencing, the facts of the case, the defendant's prior record, and the personal circumstances of the defendant. See ECF 202 at 34-43. For example, the Court took note of defendant's "very difficult childhood that was plagued by economic disadvantage, drug-addicted parents, [and] an abusive father." ECF 202 at 36. Further, the Court noted the defendant's early drug use. Id. As for the murder of Rigby, the Court concluded that the defendant "knew in advance" and "didn't stop it." Id. at 42-43. But, the Court also said "that would be the limit of what [the evidence] shows." Id.
The Court sentenced the defendant to a total term of 360 months' imprisonment: 300 months' imprisonment for Count One and 60 months' imprisonment, consecutive, for Count Three. Id. at 11, 43. That sentence essentially fell in the middle of the advisory sentencing Guidelines range.
Whisonant filed a notice of appeal the next day. See ECF 182. However, he subsequently dismissed his appeal. ECF 208.
Five months after Whisonant's sentencing, on December 21, 2018, the President signed the First Step Act. Among other things, it reduced the sentencing exposure for § 851 enhancements by imposing a mandatory minimum of 25 years' imprisonment, rather than a mandatory life sentence. See 18 U.S.C. § 841(b)(1)(A) (2019) (...
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