United States District Court, D. Maryland
TONY MAURICE HORNE, SR. Petitioner,
UNITED STATES OF AMERICA, Respondent.
L. Hollander, United States District Judge.
Memorandum Opinion resolves a Motion to Vacate, Set Aside, or
Correct Sentence, filed under 28 U.S.C. § 2255 by Tony
M. Horne, Sr., the self-represented petitioner. ECF 197
(“Petition”). Horne argues that he received
ineffective assistance of trial counsel. The government has
filed an Opposition to the Petition (ECF 208,
“Opposition”), supported by several exhibits. In
addition, it has filed a supplement to its Opposition. ECF
210. Mr. Horne has not replied, and the time to do so has
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.
was indicted on November 12, 2014, along with five others.
ECF 1. In Count Two, Horne and others were charged with
conspiracy to distribute and possess with intent to
distribute heroin, in violation of 21 U.S.C. § 841(a)(1)
and 21 U.S.C. § 846. The conspiracy began at least by
January 2014 and continued to November 2014. Id. As
to Horne, Count Two alleged that 100 grams or more of a
substance containing a detectable amount of heroin was
foreseeable to Horne in connection with the drug conspiracy.
In Count Three, Horne was charged, with others, with the
offense of conspiring to distribute and possess with intent
to distribute cocaine, in violation of 21 U.S.C. §
841(a)(1) and 21 U.S.C. § 846.
November 4, 2015, Horne entered a plea of guilty to a lesser
included charge of Count Two, under 21 U.S.C. § 846.
See ECF 147. The Plea Agreement is docketed at ECF
148; see also ECF 208-1. Horne signed the Plea
Agreement on October 16, 2015. ECF 148 at 7. During the plea
colloquy on November 4, 2015, under Fed. R. Crim. P. 11, the
defendant was, of course, placed under oath. See ECF
208-2 (Transcript of November 4, 2015) at 2. The defendant
was also advised that he had the obligation to answer the
Court's questions truthfully. Id. at 4. Horne
advised the Court that he was fully satisfied with the
services of his attorney. Id. at 6-7.
6 of the Plea Agreement reflects that the parties disagreed
as to the base offense level. The government believed it was
a 24 under U.S.S.G. § 2D1.1(c)(8), while defendant
believed it was a 16, under § 2D1.1(c)(12). In addition,
the government believed that defendant qualified as a Career
Offender under U.S.S.G. § 4B1.1, resulting in an offense
level of 32 and a criminal history category of VI.
Id. This matter was reviewed with petitioner during
the plea colloquy, including that the issue would not be
resolved until sentencing. See ECF 208-2 at 18-19.
A, the Statement of Facts, was appended to the Plea
Agreement. See ECF 148 at 8-9. Horne signed it on
October 16, 2015. Id. at 9. In the Statement of
Facts, Horne admitted that, between January and November
2014, he was a member of a conspiracy to distribute and
possess with intent to distribute heroin. ECF 148 at 8;
see also ECF 208-2 at 35-38.
Statement of Facts referenced, inter alia, that
defendant's telephone conversations with codefendant
Fabian Gray were intercepted by use of a wiretap. ECF 148 at
8. Moreover, the intercepted communications reflected
Horne's involvement in a drug transaction on August 5,
2014. Id. The defendant admitted that he called Gray
on that date to purchase a quantity of heroin from Gray.
Id. Thereafter, a controlled purchase was conducted
with the defendant, in which a confidential informant
purchased 5.24 grams of heroin from Horne. Notably, Horne
told the confidential informant “to sell the
heroin” that Horne just gave him, because “they
(GRAY and HORNE, Sr.) had 150 more grams of heroin.”
ECF 148 at 8; see also ECF 208-2 at 37. Another
controlled purchase of heroin was conducted with the
defendant on August 13, 2015. ECF 148 at 8. At that
time, a confidential informant purchased 18.05 grams of
heroin from the defendant. Id.
the execution of a search and seizure warrant at the
defendant's business on November 14, 2014, investigators
recovered a H&R .22 caliber revolver, loaded with seven
rounds of ammunition, as well as a bag containing 44 rounds
of .22 caliber ammunition. Id. at 9. Further, the
government represented that the evidence would include
additional intercepted communications, controlled purchases,
and surveillance, proving additional conduct of the defendant
in regard to distributing illegal narcotics.
regard to the Statement of Facts, defense counsel informed
the Court that when defendant informed the CI to sell the
heroin, because he had 150 more grams of heroin, “it
was simply puffery.” ECF 208-2 at 10. Mr. Horne claimed
he was merely speaking on behalf of Gray, who had the 150
grams. But, the defense conceded: “There is
no dispute that Mr. Horne, in fact, said this.”
Id. The prosecutor explained that the defendant was
merely seeking “to reserve the right to argue that the
quantity [of heroin] was less than this quantity that Mr.
Horne said.” ECF 208-2 at 10. And, defense
counsel reiterated: “[W]e're not disputing the fact
it was said, just that the intent was simply not
there.” Id. at 11.
that clarification, the defendant expressly agreed to the
accuracy of the facts in the Plea Agreement. Id. at
12; 17, 38. In particular, Horne agreed that he “read
the Statement of Facts and carefully reviewed every part of
it with [his] attorney.” ECF 148 at 9. He also
represented that he “voluntarily agree[d] to it,
” and he did “not wish to change any part of
it.” Id.; see also ECF 148, ¶ 6;
ECF 208-2 at 13.
a Presentence Report (“PSR”) was prepared. ECF
164. According to the PSR, defendant qualified as a Career
Offender under U.S.S.G. § 4B1.1, based on the underlying
conviction for a drug trafficking offense, coupled with two
prior qualifying convictions. One predicate conviction was
for the offense of assault with intent to murder (PSR, ¶
35),  and the other was for a federal conviction
for possession with intent to distribute cocaine base (PSR,
¶ 36). See United States v. Horne, AMD-05-065
deductions for acceptance of responsibility, the PSR
reflected that Horne had a final offense level of 29, and a
criminal history category of VI. ECF 164, ¶¶ 25,
39, 63. This resulted in an advisory sentencing guidelines
range of 151 to 180 months' imprisonment. Id.,
was held on April 12, 2016. ECF 179. Through defense counsel,
defendant vigorously disputed the Career Offender finding in
the PSR, which was based, in part, on Horne's prior
conviction for assault with intent to murder. He argued that
the offense is not a crime of violence within the meaning of
§ 4B1.1(a)(2) of the Career Offender Guidelines.
See ECF 170; ECF 208-3 at 7-17.
government took the position that defendant's Career
Offender status should not be determinative in regard to
sentencing. Instead, the government urged the Court to
consider the factors under 18 U.S.C. § 3553(a). ECF
208-3 (Transcript of April 12, 2016) at 4-5, 15. The Court
agreed, stating, id. at 15:
. . . I am persuaded by Rule 32(i)(3)(B) of the Federal Rules
of Criminal Procedure that I need not resolve this issue [of
career offender status]. That rule provides that the Court
must rule on a dispute or determine that a ruling is