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Whyte v. United States

United States District Court, D. Maryland

April 19, 2018

GREGORY A. WHYTE, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION

          Richard D. Bennett United States District Judge

         On September 21, 2010, a jury convicted Petitioner Gregory Whyte ("Petitioner" or "Whyte") of one count of conspiracy to possess with intent to distribute cocaine, in violation of 21 U.S.C. § 846, and one count of attempt to possess with intent to distribute cocaine, as well as aiding and abetting such conduct, in violation of 21 U.S.C. § 846 and 18 U.S.C. § 2, respectively. (ECF No. 90.) On January 31, 2011, this Court sentenced Whyte to two hundred and sixty-four (264) months of imprisonment. (Id.) Whyte subsequendy filed a motion for post-conviction relief pursuant to 28 U.S.C. § 2255, claiming his counsel was ineffective for failing to communicate the Government's offer of a plea bargain. (ECF No. 159.) This Court granted the motion, and on April 1, 2014 re-sentenced Whyte to a prison term of one hundred and fifty-one (151) months and entered an amended judgment dismissing the count of attempting to possess with intent to distribute cocaine, and aiding and abetting such conduct. (ECF Nos. 163, 165.)

         Presently before this Court is Petitioner's second Motion to Vacate, Set Aside or Correct Sentence under 28 U.S.C. § 2255 (ECF No. 196), and Government's Motion to Dismiss Petitioners Motion for Post-Conviction Relief (ECF No. 198). For the following reasons, Petitioner's Motion to Vacate, Set Aside or Correct Sentence under 28 U.S.C. § 2255 (ECF No. 196) is DENIED; and Government's Motion to Dismiss Petitioners Motion for Post-Conviction Relief (ECF No. 198) is GRANTED.

         BACKGROUND

         The facts of this case were detailed at length in this Court's April 19, 2013 Memorandum Opinion, Whyte v. United States, RDB-12-1141, 2013 WL 1721736 (D. Md. Apr. 19, 2013), and are briefly summarized herein. On April 27, 2010, Petitioner Whyte was indicted on three counts of conspiring to distribute cocaine. (ECF No. 1.) The charges stemmed from an incident in May of 2009, when Drug Enforcement Administration agents in Los Angeles intercepted a large shipment of cocaine that was to be sent to Baltimore, Maryland. (Presentence Report at 3.) Whyte was subsequently identified as the leader and organizer of the transaction. (Id. at 5.)

         On September 21, 2010, a jury found Whyte guilty on one count of conspiracy to possess with intent to distribute cocaine, in violation of 21 U.S.C. § 846, and one count of attempt to possess with intent to distribute cocaine, as well as aiding and abetting such conduct, in violation of 21 U.S.C. § 846 and 18 U.S.C. § 2, respectively. (ECF No. 90.) Subsequently, on January 31, 2011, this Court sentenced Whyte to a prison term of 264 months. (Id.) On appeal to the United States Court of Appeals for the Fourth Circuit, the court affirmed Whyte's convictions. United States v. Whyte, No. 11-4187, 460 Fed. App'x 236, 238 (4th Cir. Jan. 3, 2012).

         On April 13, 2012, Whyte filed a motion for post-conviction relief pursuant to 28 U.S.C. § 2255, alleging that trial counsel was ineffective for failing to communicate the Government's offer of a plea bargain.[1] (ECF No. 132.) This Court subsequently granted the motion, explaining that "[i]n light of the complete absence in Trial Counsel's file of any evidence even hinting that the plea offer was relayed to Petitioner, this Court concludes that Trial Counsel's performance was deficient." Whyte v. United States, RDB-12-1141, 2014 WL 279688, at *6 (D. Md. Jan. 24, 2014). Accordingly, this Court vacated Whyte's sentence and mandated that re-sentencing be conducted in accordance with the terms of the plea bargain. (Id.) On April 1, 2014, this Court re-sentenced Whyte to a prison term of 151 months and entered an amended judgment dismissing the count of attempting to possess with intent to distribute cocaine, and aiding and abetting such conduct. (ECF No. 163.) At re-sentencing, this Court "essentially" used the same presentence report as the one used during Whyte's initial sentencing.[2] (ECF No. 172 at 9.) Additionally, Whyte acknowledged that he had seen this presentence report before during his original sentencing. (Id.)

         Approximately two months later, on May 30, 2014, the Government filed a notice of appeal as to the amended judgment. (ECF No. 168.) However, the Government subsequently filed an unopposed motion to withdraw its appeal. (ECF No. 174.) Accordingly, the appeal was dismissed on October 8, 2014.[3] (Id.) On January 27, 2015, Whyte filed a motion for a sentence reduction under 18 U.S.C. § 3582(c)(2), which was denied by this Court on December 20, 2016.[4] (ECF Nos. 181, 192.)

         On February 23, 2017, Whyte filed the present Motion to Vacate under 28 U.S.C. § 2255, claiming ineffective assistance of counsel. (ECF Nos. 196, 200.) Approximately two months later, on April 24, 2017, the Government filed a Motion to Dismiss Whyte's § 2255 Motion. (ECF No. 198.) Finally, on May 26, 2017, Whyte filed a supplemental memorandum is support of his § 2255 motion. (ECF No. 200.)

         STANDARD OF REVIEW

         This Court recognizes that Petitioner is pro se and has accorded his pleadings liberal construction. See Erickson v. Pardus, 551 U.S. 89, 94 (2007). Under 28 U.S.C. § 2255, a prisoner in custody may seek to vacate, set aside, or correct his sentence on four grounds: (1) the sentence was imposed in violation of the Constitution or laws of the United States, (2) the court was without jurisdiction to impose the sentence, (3) the sentence was in excess of the maximum authorized by law, or (4) the sentence is otherwise subject to a collateral attack. Hill v. United States, 368 U.S. 424 (1962) (citing 28 U.S.C. § 2255). Further, ."an error of law does not provide a basis for collateral attack unless the claimed error constituted 'a fundamental defect which inherently results in a complete miscarriage of justice.'" United States v. Addoniyo, 442 U.S. 178, 185 (1979) (quoting Hill, 368 U.S. at 428).

         ANALYSIS

         The sole claim in Whyte's present § 2255 motion is that his counsel at re-sentencing was ineffective for "fail[ing] to object to this Court's mistaken inclusion of the U.S.S.G. Manual § 3B 1.1(c) leadership enhancement in [his] sentencing guidelines range calculation." (ECF No. 200 at 1.) Section 3Bl.l(c) of the Federal Sentencing Guidelines provides that "[i]f the defendant was an organizer, leader, manager, or supervisor in any criminal activity other than described in (a) or (b), increase by 2 levels." U.S.S.G. 3B1.1. In general, (a) and (b) provide for offense level increases based on a defendant's leadership role for "criminal activity that involved five or more participants or [that] was otherwise extensive." Id. For the following reasons, Whyte's claim is untimely, not subject to equitable tolling, and without merit.

         I. Petitioner's Motion is UntimelyA. Petitioner Did Not File His Motion Within the ...


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