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Cox v. United States

United States District Court, D. Maryland

November 2, 2016

DONTAY LEROY DOUGLASS COX, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent. Crim. No. ELH-13-0056

          MEMORANDUM

          Ellen L. Hollander, United States District Judge.

         Dontay Cox, who is self-represented, filed a motion under 28 U.S.C. § 2255, seeking to vacate, set aside, or correct his sentence of 144 months, imposed on January 13, 2014. ECF 57, (the “Petition”). The Petition was docketed on July 5, 2016.[1] The government initially filed a motion to dismiss the Petition as untimely. ECF 60 (“Motion”). Thereafter, it filed a response in opposition to the merits. ECF 62 (“Opposition”). Petitioner has not replied, and the time to do so has expired.

         Under 28 U.S.C. § 2255(b), a hearing is required “[u]nless the motion and the files and records of the case conclusively show the prisoner is entitled to no relief . . . .” This is such a case. No hearing is necessary. For the reasons that follow, I shall deny the Petition.

         I. Procedural and Factual Background

         Cox was indicted on February 12, 2013 (ECF 1) on charges of distribution and possession with intent to distribute cocaine base or “crack, ” in violation of 21 U.S.C. § 841(a)(1).

         In particular, in Count One he was charged with distribution of 28 grams or more of cocaine base, on or about March 26, 2012. In Count Two, he was charged with possession with intent to distribute 28 grams or more of cocaine base, on or about April 3, 2012.

         On October 15, 2013, Cox entered a plea of guilty to Count One and Count Two (ECF 49), pursuant to a written Plea Agreement. See ECF 46. Each count carried a mandatory minimum penalty of five years' imprisonment and a maximum term of forty years' incarceration. Id. ¶ 3.

         Notably, Cox pleaded guilty pursuant to Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure. See ECF 46, ¶¶ 3, 9. Under Paragraph 9 of the Plea Agreement, the parties stipulated to a total sentence of 144 months' imprisonment as the appropriate disposition of the case.

         In Paragraph 5 of the Plea Agreement, the parties stipulated to a total base offense level of 28, based on the quantity of narcotics. See U.S.S.G. § 2D1.1(c)(6).[2] The government also agreed to a two-level reduction based on the defendant's acceptance of responsibility. ECF 46, ¶ 6. But, the Plea Agreement stated that the government would not move for the additional one-point deduction under § 3E1.1(b). Id. And, there was no agreement as to Cox's criminal history or his criminal history category. Id. ¶ 7. Under paragraph 17 of the Plea Agreement, the Court was not bound by the parties' factual or guidelines stipulations.

         The Probation Department prepared a Presentence Report (“PSR”) for sentencing purposes. ECF 50. The PSR reflects that defendant had previously been convicted of three distinct felony narcotic offenses. Therefore, according to the PSR, Cox qualified as a career offender under U.S.S.G. § 4B1.1. ECF 50, ¶ 23. As a result, his base offense level was enhanced from a 28 to a 34. After two deductions for acceptance of responsibility, the PSR indicated that defendant had a final offense level of 32. ECF 50, ¶ 25. The Presentence Report also reflected that defendant had 17 criminal history points, which established a criminal history category of VI. Id. ¶ 60. Alternatively, because the defendant was a career offender, the PSR reflected a criminal history category of VI. Id. ¶ 61.

         Under the guidelines, based on a total offense level of 32 and a criminal history category of VI, Cox had an advisory sentencing guideline range of 210 to 262 months' imprisonment. If the offense level were 26, as anticipated in the Plea Agreement, Cox's guideline range would have been 120 to 150 months' imprisonment.

         Sentencing was held on January 13, 2014. ECF 52. The Court determined that Cox qualified as a career offender. See ECF 54 at 1; ECF 56 (Sentencing Transcript), at 5-6. Defense counsel did not dispute that finding. Id. at 6. Nevertheless, pursuant to the terms of the C plea, the Court imposed a concurrent sentence of 144 months as to Counts One and Two. See ECF 53; ECF 56. No appeal was noted from the Court's disposition of the case.

         On July 5, 2016, the Clerk docketed Mr. Cox's § 2255 Petition. In the Petition, Mr. Cox asserts, ECF 57 at 4: “My sentence designation as a career offender violates the Due Process Clause of the Fifth Amendment for the reasons asserted in Johnson v. United States and the Fourth Circuit's recent decision in Hubbard v. United States.” He also states, id. at 11: “My Motion is timely b/c it was placed in the institutional mailing system before June 26, 2016, one year prior to the decision in Johnson v. United States.”

         Notably, the Petition also includes a Declaration executed by Mr. Cox on June 25, 2016. There, he averred, id.: “I declare . . . under penalty of perjury that the foregoing is true and correct and that this Motion under 28 U.S.C. § ...


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