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Mack v. United States

United States District Court, D. Maryland, Northern Division

August 27, 2015

TANYA MACK, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent

          Tanya Valencia Mack, Petitioner, Pro se, Danbury, CT.

          MEMORANDUM OPINION

         William D. Quarles, Jr., United States District Judge.

         Tanya Mack was convicted of conspiracy to distribute 500 grams or more of cocaine hydrochloride and 50 grams or more of cocaine base. The Court sentenced Mack to 240 months imprisonment and ten years supervised release. Pending is Mack's supplemental motion to vacate under § 2255.[1] On August 26, 2015, the Court held a hearing on Mack's claims of ineffective assistance of counsel. For the following reasons, Macks's supplemental motion will be granted.

         I. Background

         On July 24, 2008, a federal grand jury returned an indictment charging Tanya

Page 503

Mack with conspiracy to distribute 500 grams or more of cocaine hydrochloride and 50 grams or more of cocaine base between January 2008 until March 2008.[2] ECF No. 1. On February 4, 2011, the Government filed a notice of enhanced penalty under 21 U.S.C. § 851 which increased the mandatory minimum sentence for the offense from ten years to twenty years without the possibility of parole. ECF No. 222. On February 17, 2011, a jury found Tanya Mack guilty. ECF No. 242. On June 28, 2011, the Court sentenced Mack to 240 months imprisonment and ten years supervised release. ECF No. 253.

         On July 29, 2013, Mack, pro se, filed a motion to vacate her sentence pursuant to 28 U.S.C. § 2255. ECF No. 280. Mack argued that her sentence violated Alleyne v. United States, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), because the jury never found the exact amount of drugs attributable to Mack. ECF No. 280 at 3. The Government argued that the verdict sheet contained factual findings by the jury about the amount of drugs attributable to Mack, and that her sentence was in accordance with the sentencing enhancement under 21 U.S.C. § 851. ECF No. 282 at 34. Contrary to Mack's argument, the Court determined that the indictment charged her with conspiring to distribute a specific amount of drugs (500 grams or more of cocaine hydrochloride and 50 grams or more of cocaine base). ECF Nos. 79, 311. Further, the jury verdict sheet contains factual findings from the jury that she was guilty of conspiring to distribute these amounts. ECF Nos. 242, 311. Accordingly, on March 24, 2014, the Court found that there was no merit to Mack's original argument. ECF No. 311.

         However, in Mack's reply to the Government's opposition, she stated that she had been unaware of the § 851 enhancement, and, if the enhancement had been communicated to her prior to trial, she would have considered a guilty plea. ECF No. 282 at 1-2. The Court interpreted this statement as a new claim for relief based on ineffective assistance of counsel. See ECF No. 311. The Court ordered appointment of counsel under the Criminal Justice Act and a hearing was scheduled to determine if counsel failed to communicate the § 851 enhancement. ECF Nos. 311, 314.

         On July 7, 2015, Mack's counsel filed a supplemental motion to vacate under 28 U.S.C. § 2255.[3] ECF No. 313. On August 10, 2015, the Court ordered the government to respond to the supplemental motion. ECF No. 316. On August 17, 2015, the government opposed the motion. ECF No. 317. On August 18, 2015, Mack replied. ECF No. 318.

         On August 26, 2015, the Court held a hearing on the § 2255 claims.[4] At the hearing, Mack withdrew her argument that her trial counsel was ineffective for failing to communicate the § 851 enhancement. Mack, however, called prior counsel, William

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Welch, Esq., to testify on the issues in the supplemental motion.

         II. ...


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