Wilburn v. United States
| Decision Date | 26 January 2017 |
| Docket Number | 3:11-cr-337-RJC-11,3:16-cv-571-RJC |
| Court | U.S. District Court — Western District of North Carolina |
| Parties | MARVIN RAY WILBURN, Petitioner, v. UNITED STATES OF AMERICA, Respondent. |
THIS MATTER is before the Court on Petitioner's Motion to Vacate, Set Aside or Correct Sentence under 28 U.S.C. § 2255, (Doc. No. 1).
Pro se Petitioner Marvin Ray Wilburn worked as a broker for automobiles and as a real estate agent. (Crim. Case No. 3:11cr337-RJC-11, Doc. No. 413 at ¶ 62: PSR). From 2004 to 2013, he engaged in a conspiracy to launder the proceeds from marijuana trafficking. (Id. at ¶ 5). Petitioner used his bank accounts to launder drug proceeds, and he also accepted cash payments from marijuana traffickers as payment for leases of luxury vehicles, despite knowing that the funds were derived from drug-trafficking. (Id. at ¶ 6). He was known to possess firearms, including a revolver and a pistol. (Id. at ¶ 8).
In 2013, Petitioner was indicted for conspiracy to possess with intent to distribute 1,000 kilograms or more of marijuana, in violation of 21 U.S.C. §§ 841(b)(1)(A), 846 (Count One); conspiracy to commit money laundering by conducting or attempting to conduct "a financial transaction affecting interstate and foreign commerce, which involved the proceeds of a specified unlawful activity, that is, the manufacture, importation, sale, or distribution of a controlled substance, with the intent to promote the carrying on" of this activity and while knowing that the property involved the proceeds of unlawful activity, in violation of 18 U.S.C. § 1956(h) (Count Two); and possession of a firearm during and in relation to a drug-trafficking crime, in violation of 18 U.S.C. § 924(c) (Count Three). (Id., Doc. No. 288: Third Superseding Indictment). The indictment also contained a notice of forfeiture. (Id. at 4).
Petitioner agreed to plead guilty to the money laundering charge in Count Two, admitting that he conspired to launder proceeds from marijuana trafficking, in exchange for the dismissal of the remaining charges. (Id., Doc. No. 325 at ¶¶ 1-2: Plea Agrmt.). As part of the plea agreement, the parties recommended that the Court find that the amount of drug proceeds that was known or reasonably foreseeable to Petitioner was the marijuana equivalent of between 100 and 400 kilograms; that Petitioner's plea was timely entered for purposes of acceptance of responsibility; and that the Government would not oppose a sentence at the bottom of the guidelines range. (Id. at ¶ 7). Petitioner also agreed to forfeit all of the assets listed in the First Superseding Bill of Indictment or seized in a related investigation. (Id. at ¶ 9). Finally, Petitioner waived the right to challenge his conviction or sentence on appeal, or in any post-conviction proceeding, except as to claims of ineffective assistance of counsel or prosecutorial misconduct. (Id. at ¶¶ 18-19).
At the plea hearing, the magistrate judge reviewed the money laundering charge with Petitioner, who testified that he understood the charge and that he was guilty of it. (Id., Doc. No. 485 at 4-6, 9: Plea Tr.). The Government stated that Petitioner agreed that there was a factual basis for his plea, but that the factual basis would be deferred until sentencing. (Id. at 11). The Government also noted that the plea agreement included a forfeiture provision and that therewere no other agreements or understandings between the parties, other than those embodied in the plea agreement. (Id. at 11-13). Petitioner testified that he had reviewed the plea agreement with his attorney, that he understood the terms of the agreement, and that he agreed to those terms. (Id. at 13). He stated that no one had threatened, intimidated, or forced him to plead guilty; that he had had a sufficient opportunity to discuss possible defenses with his attorney; and that he was satisfied with his attorney's services. (Id. at 14). The magistrate judge confirmed that Petitioner understood that he was waiving the right to challenge his conviction or sentence on appeal or in any post-conviction proceeding. (Id. at 13-14). The magistrate judge found that Petitioner's plea was made knowingly and voluntarily. (Id. at 17-18).
In preparation for sentencing, a probation officer prepared a presentence report, recommending a finding that Petitioner's base offense level was 28. (Id., Doc. No. 413 at ¶ 14). This calculation was based on the amount of marijuana involved in the drug offense underlying the money laundering count, as well as a two-level enhancement under U.S.S.G. § 2D1.1(b)(1) for possession of a dangerous weapon. (Id.). Applying a two-level increase under U.S.S.G. § 2S1.1(b)(2)(B) (for convictions under Section 1956), and a three-level reduction for acceptance of responsibility, Petitioner's total offense level was 27. (Id. at ¶¶ 15; 21-23). Petitioner had 14 criminal history points, including one point for a misdemeanor battery conviction, which placed him in criminal history category VI. (Id. at ¶¶ 31; 36). His advisory guidelines range was 130-162 months of imprisonment. (Id. at ¶ 68).
A factual basis was filed before sentencing. (Id., Doc. No. 378). Petitioner's counsel signed the factual basis, confirming that he had read and discussed it, the indictment, and the plea agreement, with Petitioner and was satisfied that Petitioner understood these documents. (Id. at 2). At sentencing, Petitioner stated that he had read the PSR, reviewed it with hisattorney, and understood it. . This Court overruled defense counsel's motion for a downward variance, citing Petitioner's very serious criminal history and his long-term involvement in the present offense, and sentenced Petitioner to 130 months of imprisonment. (Id. at 14-15).
The Fourth Circuit affirmed Petitioner's conviction and sentence on appeal, rejecting counsel's assertion that the district court had not adequately considered the injuries Petitioner sustained in a prior robbery offense, as well as Petitioner's pro se arguments that the factual basis was insufficient to support his conviction and was invalid because he did not sign it. United States v. Wilburn, 596 F. App'x 241, 242 (4th Cir. 2015), cert. denied, 136 S. Ct. 263 (2015). Petitioner timely filed the present motion to vacate on July 26, 2016, raising numerous claims of ineffective assistance of counsel, as well as a challenge to the calculation of his criminal history. The Government filed its Response on September 29, 2016, and, after receiving two extensions of time, Petitioner filed his Reply on November 30, 2016. (Doc. Nos. 4; 9).
Rule 4(b) of the Rules Governing Section 2255 Proceedings provides that courts are to promptly examine motions to vacate, along with "any attached exhibits and the record of prior proceedings . . ." in order to determine whether the petitioner is entitled to any relief on the claims set forth therein. After examining the record in this matter, the Court finds that the argument presented by Petitioner can be resolved without an evidentiary hearing based on the record and governing case law. See Raines v. United States, 423 F.2d 526, 529 (4th Cir. 1970).
The Sixth Amendment to the U.S. Constitution guarantees that in all criminal prosecutions, the accused has the right to the assistance of counsel for his defense. See U.S. CONST. amend. VI. To show ineffective assistance of counsel, Petitioner must first establish a deficient performance by counsel and, second, that the deficient performance prejudiced him. See Strickland v. Washington, 466 U.S. 668, 687-88 (1984). In making this determination, there is "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689; see also United States v. Luck, 611 F.3d 183, 186 (4th Cir. 2010). Furthermore, in considering the prejudice prong of the analysis, the Court "can only grant relief under . . . Strickland if the 'result of the proceeding was fundamentally unfair or unreliable.'" Sexton v. French, 163 F.3d 874, 882 (4th Cir. 1998) (quoting Lockhart v. Fretwell, 506 U.S. 364, 369 (1993)). Under these circumstances, the petitioner "bears the burden of affirmatively proving prejudice." Bowie v. Branker, 512 F.3d 112, 120 (4th Cir. 2008). If the petitioner fails to meet this burden, a "reviewing court need not even consider the performance prong." United States v. Rhynes, 196 F.3d 207, 232 (4th Cir. 1999), opinion vacated on other grounds, 218 F.3d 310 (4th Cir. 2000).
To establish prejudice in the context of a guilty plea, a petitioner must show that "there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Meyer v. Branker, 506 F.3d 358, 369 (4th Cir. 2007) (quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985)). In evaluating such a claim, statements made by a defendant under oath at the plea hearing carry a "strong presumption of verity" and present a "formidable barrier" to subsequent collateral attacks. Blackledge v. Allison, 431 U.S. 63, 73-74 (1977). Indeed, "in the absence of extraordinary circumstances, the truth of sworn statements made during a Rule 11 colloquy is conclusively established, and a district court should dismiss . .. any § 2255 motion that necessarily relies on allegations that contradict the sworn statements." United States v. Lemaster, 403 F.3d 216, 221-22 (4th Cir. 2005).
Petitioner raises the following grounds of ineffective assistance of counsel: (1) failure to challenge the sufficiency of the indictment; (2) negotiating a plea agreement containing a forfeiture clause; (3) counseling Petitioner to accept a plea that allowed the Government to defer the factual basis until sentencing; and (4) failing to challenge the sentence enhancement for possessing a firearm. Pe...
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