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Horne v. United States

United States District Court, D. Maryland

April 6, 2018

TONY MAURICE HORNE, SR. Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION

          Ellen L. Hollander, United States District Judge.

         This 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 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 Background

         Horne 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.

         On 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.[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.

         Paragraph 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.

         Attachment 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.

         The 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.

         During 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.

         In 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.[2] 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.

         With 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.

         Thereafter, 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), [3] 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 (D. Md.).[4]

         After 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., ¶ 63.

         Sentencing 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.

         The 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 ...

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