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Cox v. United States

United States District Court, D. Maryland

March 19, 2015

JOHN WILLIS COX
v.
UNITED STATES OF AMERICA Criminal Action No. 08-328

MEMORANDUM OPINION

DEBORAH K. CHASANOW, District Judge.

Presently pending and ready for resolution in this case are motions filed by Petitioner John Willis Cox ("Mr. Cox" or "Petitioner") for reduction of sentence (ECF No. 705), [1] to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255 (ECF No. 748), and to amend his habeas petition (ECF No. 817). The issues have been fully briefed, and the court now rules, no hearing being deemed necessary. Local Rule 105.6. For the following reasons, all three motions will be denied.

I. Background

As a result of extensive drug-related criminal activities, Petitioner was charged with multiple charges in a six-count multi-defendant superseding indictment. Specifically, on August 31, 2009, a grand jury returned a superseding indictment charging Petitioner and others with conspiracy to distribute five kilograms or more of cocaine and 50 grams or more of cocaine base between February 2007 and February 2009, and charging him individually in five other substantive counts with drug trafficking and firearms offenses. ( See ECF No. 339). Multiple attorneys were appointed to represent Petitioner throughout the course of the case; Robert Waldman eventually was appointed to represent Petitioner, and indeed represented him through the remainder of the case.

On October 19, 2009, the court scheduled an eight week trial to begin on April 6, 2010. (ECF No. 409). On March 11, 2010, the trial for the then-eight remaining defendants was rescheduled to begin on May 4, 2010. ( See ECF No. 459). On April 29, 2010, Petitioner signed a plea agreement and appeared for a Rule 11 hearing. ( See ECF No. 503). At the Rule 11 hearing held on April 29, 2010, Petitioner pled guilty to counts one and six of the superseding indictment, charging him with conspiracy to distribute and possess with intent to distribute cocaine and cocaine base in violation of 21 U.S.C. § 846 (count one), and possession of a firearm by a felon, in violation of 18 U.S.C. § 922(g) (count six).[2]

In the plea agreement, the parties stipulated to a base offense level of 34 as to the drug conspiracy because Mr. Cox was responsible for 15 kilograms but less than 50 kilograms of cocaine. ( See ECF No. 758-3, at 4). The parties agreed that if it was determined that Petitioner was a career offender, the offense level would be 37. ( Id. ). A two-level upward adjustment applied because Mr. Cox possessed a dangerous weapon. As for the firearms offense, the parties stipulated to a base offense of 24 because Mr. Cox committed the offense after sustaining two convictions of a controlled substance offense. The plea agreement stated that the drug and gun offenses are closely related offenses pursuant to U.S.S.G. § 3D1.2(c). The plea agreement further advised that the Government would not oppose a two level reduction in Petitioner's adjusted offense level based on acceptance of responsibility. Earlier in the case, the Government filed a notice informing the court of Petitioner's two prior felony convictions. ( See ECF No. 229). In exchange for Petitioner's guilty plea, the Government agreed to withdraw the notice of the two prior felony drug convictions. (ECF No. 758-2, at 23).

On May 2, 2011, Petitioner was sentenced to 168 months imprisonment on count one, to run concurrently with 120 months imprisonment on count six, followed by five years of supervised release on count one, to run concurrently with three years on count six. (ECF No. 661).

On September 15, 2011, Petitioner filed a motion for reduction of sentence pursuant to 18 U.S.C. § 3582. (ECF No. 705). He received correspondence on September 19, 2011 advising him that the court "is examining the retroactive application of the guidelines and is developing a mechanism to provide counsel to those who may benefit from the Amendment." (ECF No. 706). Petitioner filed the instant habeas petition on January 24, 2012. (ECF No. 748). The Government opposed the motion, (ECF No. 758), and Petitioner replied (ECF No. 761). On July 2, 2013, Petitioner moved to amend his motion to vacate, set aside, or correct sentence. (ECF No. 817). The Government did not respond to that motion.[3]

II. Motion to Vacate, Set Aside, or Correct Sentence

A. Standard of Review

28 U.S.C. § 2255 requires a petitioner asserting constitutional error to prove by a preponderance of the evidence that "the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law." If the Section 2255 motion, along with the files and records of the case, conclusively shows that petitioner is not entitled to relief, a hearing on the motion is unnecessary and the claims raised in the motion may be summarily denied. See 28 U.S.C. § 2255(b).

B. Analysis

Petitioner asserts two grounds for relief in the instant motion. First, he argues that the court should resentence him pursuant to the Fair Sentencing Act of 2010 ("FSA"). Second, he contends that his attorney, Mr. Waldman, rendered ineffective assistance by not giving him time to review the plea agreement, pressuring him into pleading guilty, and assuring him that he would receive a lower sentence than he actually received.

1. Fair Sentencing Act

Petitioner argues that the FSA applies retroactively to his case and that his sentence should be reduced to reflect the new ratio for crack cocaine. Petitioner contends, in relevant part:

The Fair Sentencing Act of 2010 [] established a[n] 18-1 ratio of crack to powder cocaine. Applying this ratio to the Petitioner's 464.4 grams of crack the conversion to marijuana is 1440 kilograms of marijuana. This added to the converted amount of powder cocaine the Petitioner is held responsible for in the Plea Agreement, will result in a Guideline of 30 [and] a potential 120 month sentence. []Petitioner was sentence[d] to the 120 month mandatory minimum for the gun charge, which was concurrent with [the] drug charge. Therefore, in the re-sentencing the combined sentence should result in a sentence of 120 months.

(ECF No. 748, at 21).

Petitioner's arguments are misplaced. Judge Hollander explained:

The purpose of the FSA and the related amendments to the guidelines [i.e., Amendments 748 (eff. Nov. 1, 2010), 750 (eff. Nov. 1, 2011), and 759 (eff. Nov. 1, 2011)] was to partially alleviate the socalled " crack v. powder disparity, " by which defendants who were convicted of a drug offense involving a given amount of cocaine base (a.k.a. "crack") were exposed to substantially higher guidelines sentences and statutory maximum sentences than defendants convicted of offenses involving the same amount of powder cocaine. See United v. Bullard, 645 F.3d 237, 245 & n.4[] (4th Cir.), cert. denied, 132 S.C.t 356 (2011). The FSA lowered the disparity but did not eliminate it. Id. The disparity now corresponds to a weight ratio of approximately 18:1 ( i.e., it takes approximately 18 times as much powder cocaine as crack to trigger a given statutory minimum sentence or guidelines base offense level); under prior law, the ratio was 100:1. With respect to the Sentencing Guidelines, the reduction of the crack/powder disparity was accomplished by amending the "Drug Quantity Table" in U.S.S.G. § 2D1.1(c), which establishes the base offense levels for conviction of an ...

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