US v. Tayman

• Decision Date: 01 May 1995
• Docket Number: Civ. A. No. 94-1575-AM. Cr. A. No. 92-112-A.
• Citation: 885 F. Supp. 832
• Court: U.S. District Court — Eastern District of Virginia
• Parties: UNITED STATES of America v. Stephen E. TAYMAN, Defendant.

885 F. Supp. 832

UNITED STATES of America v. Stephen E. TAYMAN, Defendant.

Civ. A. No. 94-1575-AM. Cr. A. No. 92-112-A.

United States District Court, E.D. Virginia.

May 1, 1995.

Helen F. Fahey, U.S. Atty., Kevin C. Quin, Special Asst. U.S. Atty., Alexandria, VA, for U.S.

Robert H. Ellis, Stephen L. Lauer, Lauer & Lauer, P.C., Fairfax, VA, for defendant.

MEMORANDUM OPINION

ELLIS, District Judge.

Stephen E. Tayman received a mandatory minimum sentence of five years under 21 U.S.C. § 841 for having conspired to distribute one hundred or more kilograms of marijuana, which sentence he now attacks by a motion pursuant to 28 U.S.C. § 2255. After Tayman's conviction and sentence became final, it was decided in United States v. Irvin, 2 F.3d 72 (4th Cir.1993) cert. denied, ___ U.S. ___, 114 S.Ct. 1086, 127 L.Ed.2d 401 (1994), that mandatory minimum sentences imposed under § 841 must be based on the amount of drugs that was reasonably foreseeable to the defendant, rather than on the entire amount distributed by the conspiracy. Tayman alleges that, had a reasonable foreseeability determination been made at his sentencing as required by Irvin, far less than one hundred kilograms of marijuana would have been attributed to him. If this allegation is true, Tayman is entitled to relief under § 2255 because (i) Irvin announced a rule of substantive criminal law that applies retroactively to cases on collateral review, (ii) the fundamental error in sentencing alleged by Tayman presents exceptional circumstances warranting collateral relief, and (iii) Tayman has shown "cause and prejudice" excusing his failure to object earlier to the drug quantity attributed to him at sentencing. As a result, a hearing is necessary to determine whether Tayman was held accountable for drug quantities that were not reasonably foreseeable to him. If so, Tayman's § 2255 motion must be granted, his sentence must be vacated, and a new sentence imposed.

I.

In late 1989, Emery Wisenbaker and several other individuals began a conspiracy to transport marijuana from Houston and other locations to northern Virginia for distribution. Tayman rented a room to Wisenbaker, and because Wisenbaker did not have a driver's license, Tayman drove him on errands in exchange for meals and marijuana. Wisenbaker eventually recruited Tayman as a distributor of marijuana. During the three to four months he was involved in the conspiracy, Tayman received one pound of marijuana from Wisenbaker approximately every ten days, which amount he then distributed. Tayman also participated in the conspiracy by wiring money for Wisenbaker to a drug source in Houston, and by purchasing an airline ticket for Wisenbaker to travel to Texas in connection with the conspiracy's activities.

On February 25, 1992, Tayman was arrested at his house. Police executed a search warrant for the house and found drug trafficking paraphernalia and marijuana packaged for distribution. On March 19, Tayman pled guilty to a one-count criminal information charging him with conspiracy to possess and distribute one hundred kilograms or more of marijuana, in violation of 21 U.S.C. § 841(a)(1) and § 846. Neither the criminal information nor the plea agreement and accompanying statement of facts specified the quantity of drugs attributable to the conspiracy that was reasonably foreseeable to Tayman.

Tayman was sentenced on May 22, 1992. Prior to the sentencing hearing, the probation officer prepared a Pre-Sentence Investigation Report, which Tayman and his counsel reviewed. The report recommended that Tayman receive a base offense level of 26, the level appropriate for an offense involving one hundred to four hundred kilograms of marijuana. See United States Sentencing Guidelines ("U.S.S.G.") § 2D1.1. The report recommended the one hundred kilogram figure because Tayman "pled guilty to Conspiracy to Distribute 100 Kilograms or More of Marijuana." Tayman's counsel submitted a number of proposed corrections and additions to the report, and requested a downward adjustment for "mitigating role" pursuant to U.S.S.G. § 3B1.2. At the hearing, defense counsel withdrew the proposed changes and the objection, except that he requested the report reflect that Tayman personally distributed only ten to twelve pounds of marijuana. The Assistant United States Attorney at the sentencing had no objection to the addition of this fact to the report. The Court accepted the change, noting that the addition "doesn't change the guidelines because Tayman is chargeable in the conspiracy with what he reasonably should have known, which is the full amount of the conspiracy." Tayman's counsel immediately expressed his agreement with the Court's understanding. Ultimately, Tayman's base offense level was fixed at 26, his total offense level at 24,¹ and his criminal history score at category I, resulting in a sentencing range of 51 to 63 months. See U.S.S.G. § 5A. A statutory mandatory minimum sentence of five years trumped the guidelines range in the absence of a downward departure. See 21 U.S.C. § 841(b)(1)(B)(vii). Neither party having moved for a downward departure, the Court sentenced Tayman to sixty months imprisonment, four years supervised release, one hundred hours of community service, and a $50 special assessment.

Tayman did not appeal his conviction or sentence. Although he provided some assistance to the government, the government did not file a motion to reduce his sentence pursuant to Rule 35, Fed.R.Crim.P., in part because it was discovered that he had failed to disclose his involvement in several additional marijuana transactions.²

Tayman now collaterally attacks his sentence pursuant to 28 U.S.C. § 2255. He alleges that no more than thirty pounds (approximately 18.75 kilograms) of marijuana were reasonably foreseeable to him. If true, Tayman's proper sentencing range would have been 15 to 21 months, far less than the five-year sentence he in fact received.³ In other words, Tayman claims that, had a proper sentence been imposed, he would have left prison well over a year ago.

II.

As a threshold matter, it is necessary to address the government's contention that Tayman has waived the right to seek relief under § 2255. In his plea agreement, Tayman waived his right to appeal his sentence.⁴ Yet, the plea agreement contained no reference to § 2255 or other collateral remedies. The government agrees that the appeal waiver "technically" does not apply here, but argues that the provision should be construed beyond its literal terms to bar Tayman from obtaining § 2255 relief. In the government's view, allowing Tayman to obtain review of his sentence under § 2255 would subvert the plea agreement's spirit.

A plea agreement is a contract. Plain and unambiguous terms must be enforced as they are written. Neither the government nor the defendant "should be able, any more than would be private contracting parties, unilaterally to renege or seek modification simply because of uninduced mistake or change of mind." United States v. Harvey, 791 F.2d 294, 300 (4th Cir.1986). Because plea agreements affect defendants' constitutional rights and the public's confidence in the criminal justice system, the government has a special "responsibility for insuring precision in the agreement." Id. at 301. It is not difficult for the government to write plea agreements that explicitly waive both appeal and § 2255 rights.⁵ Where the government does not do so, courts must conclude that the defendant has not waived his right to bring a § 2255 motion. See United States v. Pruitt, 32 F.3d 431, 433 (9th Cir.1994); United States v. Rutan, 956 F.2d 827, 829 (8th Cir. 1992); cf. United States v. Clenney, 25 F.3d 1041, 1994 WL 233296 (4th Cir.1994) (unpublished) (suggesting in dictum that waiver of right to appeal does not waive rights under § 2255).⁶ Under plea agreements, "the government gets what it bargains for but nothing more." Pruitt, 32 F.3d at 433. Tayman's plea agreement literally and plainly provides only that he waived his right to appeal. It therefore does not preclude this motion under § 2255.

III.

In this § 2255 motion, Tayman attacks the mandatory minimum sentence that was imposed on him pursuant to 21 U.S.C. § 841(b)(1). He received a five-year sentence, appropriate for an offense involving one hundred kilograms or more of marijuana. He argues that the Court imposed the five-year mandatory minimum sentence without considering whether the one hundred kilogram amount was reasonably foreseeable to him. Although the conspiracy as a whole involved well over one hundred kilograms, Tayman contends that he neither personally distributed that amount, nor could have reasonably foreseen the distribution of such an amount. Instead, he claims that less than twenty kilograms of marijuana was reasonably foreseeable to him.

Simply put, Tayman seeks to take advantage of the holding in United States v. Irvin, 2 F.3d 72 (4th Cir.1993), a decision rendered after his conviction and sentence became final.⁷ In Irvin, a unanimous panel of the Fourth Circuit held that a district court must determine the quantity of narcotics reasonably foreseeable to the defendant before applying the mandatory minimum sentence provisions of 21 U.S.C. § 841. In other words, mandatory minimum sentences under § 841 must be based on the amount of drugs that was reasonably foreseeable to the individual co-conspirator being sentenced, rather than on the entire amount of drugs attributable to the conspiracy as a whole.⁸ The central question here is one of retroactivity: May a defendant rely on Irvin in collaterally attacking his sentence where, as here, his conviction became final before Irvin was decided?

The long and well-established traditional principle is that judicial decisions, unlike legislative enactments, generally apply retroactively as well as prospectively. This approach is "overwhelmingly the norm, and is in keeping with the traditional function of the courts...