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Wade v. United States

United States District Court, Fourth Circuit

June 19, 2013

CHARLES W. WADE
v.
UNITED STATES OF AMERICA. Criminal No. DKC 10-0574.

MEMORANDUM OPINION

DEBORAH K. CHASANOW, District Judge.

Presently pending and ready for resolution are motions filed by Petitioner Charles W. Wade for reduction of sentence (ECF Nos. 38, 62) and to vacate, set aside, or correct sentence (ECF No. 42). The issues are fully briefed and the court now rules pursuant to Local Rule 105.6, no hearing being deemed necessary. For the reasons that follow, both motions will be denied.[1]

I. Background

Petitioner was charged by a three-count indictment with possession of a firearm after a felony conviction, in violation of 18 U.S.C. § 922(g); possession with intent to distribute cocaine base, in violation of 21 U.S.C. § 841(a) ("count two"); and possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c) ("count three"). On June 27, 2011, he entered into an agreement with the government, pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C), to plead guilty to counts two and three in exchange for "a sentence of 144 months imprisonment, consisting of 84 months imprisonment on Count Two and a 60-month consecutive sentence of imprisonment for Count Three[.]" (ECF No. 28 ¶ 7).

In the written plea agreement, Petitioner acknowledged his understanding that the court would "determine a sentencing guidelines range for this case" and "impose a sentence... tak[ing] into account the advisory guidelines range[.]" ( Id. at ¶ 5). In setting forth the guidelines factors applicable to count two, the parties stipulated that "[t]he base offense level is 24 pursuant to U.S.S.G. § 2D1.1, because at least 22.4 grams but less than 28 grams of cocaine base were foreseeable to the [Petitioner] and within his possession." ( Id. at ¶ 6.a). The government agreed not to oppose a two-level reduction for Petitioner's acceptance of responsibility, resulting in an adjusted offense level of 22. ( Id. at ¶ 6.b). As to count three, the parties agreed that "the conviction for possession of a firearm in furtherance of a drug trafficking offense carries a mandatory term of five years imprisonment, to run consecutive to the sentence imposed for the drug trafficking offense, pursuant to U.S.S.G. §§ 2K2.4(b) and 18 U.S.C. § 924(e)." ( Id. at ¶ 6.c). Based on a pre-plea criminal history report, the parties stipulated that Petitioner was "not a career offender and that his criminal history category is VI pursuant to U.S.S.G. § 4A1.1." ( Id. at ¶ 7). The agreement further provided that, if the court imposed the contemplated sentence, both parties would waive their respective rights to appeal.

Attached to the agreement was a stipulation of facts, which described, inter alia, the circumstances of Petitioner's arrest:

On or about May 13, 2010, the Drug Enforcement Administration (DEA) and the Prince George's County Narcotics Enforcement Division executed a search and seizure warrant at the residence of [Petitioner]...[, who] was asleep in a basement bedroom when investigators arrived at the residence. During the search, investigators recovered approximately 23.3 grams of cocaine base, more commonly known as crack cocaine. Also recovered were cocaine packaging materials, two digital scales, razors and a glass dish with cocaine residue. Under the mattress of the bed on which [Petitioner] had been sleeping was a Nambu Model 94, 8 mm pistol, bearing serial number 59057.
[Petitioner] was advised of rights by DEA Special Agent Stephen Krukar and voluntarily agreed to speak with law enforcement. [Petitioner] acknowledged that he lived in the bedroom and that he would "take responsibility" for all the items recovered in the basement. Agent Krukar asked [Petitioner] if he owned the gun found under the mattress. [Petitioner] initially declined to answer, but then acknowledged that he had the firearm "basically for home protection."

(ECF No. 28-1).

Petitioner signed the statement of facts, acknowledging that he had "carefully reviewed" it with his attorney and that it was "true and correct." ( Id. ). By separately signing the plea agreement, he affirmed that he had "carefully reviewed every part of it with [his] attorney"; that he understood and "voluntarily agree[d] to it"; and that he was "completely satisfied with the representation" provided by his counsel. (ECF No. 28, at 8).

At the Rule 11 hearing, held June 29, 2011, Petitioner was placed under oath, stated his desire to plead guilty to counts two and three, and confirmed his understanding of the litany of rights he would be required to waive. After explaining the offense charged in count two, the court advised, "if you are found guilty of that charge, based upon the law in effect at the time of this alleged offense, you would be subject to imprisonment for a minimum term of five years and a maximum term of 40 years." (ECF No. 49, at 8).[2] Petitioner briefly consulted with his counsel before acknowledging that he understood. He also confirmed his understanding of the offense charged and possible penalties for count three, and the court reviewed the elements of both offenses.

The prosecutor then read aloud the statement of facts attached to the plea agreement, after which the court asked Petitioner if he agreed that they were true. Petitioner responded, "[n]o, I don't [agree with] that." ( Id. at 16). After consultation with his counsel, he clarified that he disagreed with the allegation that he made a statement to Agent Krukar regarding the gun. The following colloquy ensued:

THE COURT: Okay. You mean you deny that you made that statement, but you understand that [A]gent Krukar would testify to that if the case were to go to trial? [PETITIONER]: Yes, ma'am.
THE COURT: Okay. Do you acknowledge that you in fact possessed that firearm that was found under the mattress?
[PETITIONER]: Yes, ma'am.
THE COURT: Do you acknowledge that you possessed it in furtherance of your drug trafficking activities?
[PETITIONER]: Yes, ma'am.
THE COURT: Okay. But are there any other aspects of the statement of facts? You were sleeping in the basement bedroom?
[PETITIONER]: Yes, ma'am.
THE COURT: Twenty-three point three grams of crack were recovered down there?
[PETITIONER]: Yes, ma'am.
THE COURT: Along with packaging materials, scales, razors and a glass dish?
[PETITIONER]: Yes, ma'am.
THE COURT: And you acknowledge that you were living there and that those items are yours?
[PETITIONER]: Yes, ...

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