United States District Court, D. Maryland
W. TITUS UNITED STATES DISTRICT JUDGE
pending before the Court are Petitioner's (1) Motion
Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct
Sentence (“§ 2255 Motion”), ECF No. 207, and
(2) Motion to Amend and Supplement Pursuant to Federal Rule
of Civil Procedure 15(c) and (d) (“Motion to
Amend”), ECF No. 252. For the reasons discussed below,
the Court will deny both Motions.
December 2, 2013, a grand jury indicted Petitioner for (1)
conspiracy to distribute and possess with intent to
distribute one kilogram or more of phencyclidine, in
violation of 21 U.S.C. § 846, and (2) distribution and
possession with intent to distribute a mixture or substance
containing 100 grams or more of phencyclidine, in violation
21 U.S.C. § 841(a)(1) and 18 US.C. § 2. ECF No. 17.
On December 19, 2013, Petitioner had his initial appearance.
ECF No. 25. On March 5, 2014, the Court issued an Order
scheduling a six-day trial to begin on October 9, 2014. ECF
No. 52. On May 5, 2014, Petitioner filed consolidated
pretrial motions to suppress statements he made, sever counts
from the Superseding Indictment, and sever his trial from
that of his co-defendants. ECF No. 66. The Government
responded on July 18, 2014. ECF No. 68. On August 27,
2014-more than eight months after his initial appearance and
forty-three days before trial-Petitioner signed a plea
agreement. ECF No. 83.
signing the plea agreement, Petitioner's counsel mailed
him a letter explaining his plea options. ECF No. 207-1. The
letter indicated that Petitioner could agree to a
“C” plea, which, if accepted by the Court, would
have bound him to a sentence of 168 months imprisonment.
Id. Alternatively, Petitioner could agree to a
sentencing range of 168 to 188 months, with the Government
making a low-end recommendation of 168 months. Id.
Petitioner was told that he would be free to request that the
Court impose a lower sentence, but not less than the
mandatory minimum of ten years. Id. Petitioner chose
the latter option. ECF No. 83.
plea agreement provided that (1) Petitioner's Base
Offense Level (“BOL”) was 38 under U.S.S.G.
§ 2D1(c)(1), (2) the Government would not oppose a
2-level reduction of the BOL to 36 for his prompt recognition
and affirmative acceptance of personal responsibility for his
criminal conduct pursuant to § 3E1.1(a), (3) the BOL
could be reduced to 34 in anticipation of the forthcoming
changes to the Drug Quantity Table in U.S.S.G. § 2D1.1,
and (4) there was no agreement on his criminal history or
criminal history category. Id. ¶¶ 8a, 8b
plea agreement further set out the nature of Petitioner's
charge and the elements of his offense. Paragraph One
explained the offense to which Petitioner would plead guilty.
Id. ¶ 1. Paragraph Two explained the elements
of that offense. Id. ¶ 2. The plea agreement
also stated the following under the Factual and Advisory
Guidelines Stipulation section:
This Office and [Petitioner] agree that with respect to the
calculation of criminal history and the advisory guidelines
range, no other . . . adjustments set forth in the
United States Sentencing Guidelines will be raised or are in
dispute. [Petitioner] reserves the right to argue
for a sentence outside of the advisory guidelines range, and
will notify the Court, the United States Probation Officer,
and government counsel at least fourteen days in advance of
sentencing of the facts or issues he intends to raise.
Id. ¶ 10 (emphasis added).
By signing the plea agreement, Petitioner affirmed the
I have read this agreement . . . and carefully reviewed every
part of it with my attorney. I understand it, and I
voluntarily agree to it. Specifically, I have
reviewed the Factual and Advisory Guidelines Stipulation with
my attorney, and I do not wish to change any part of
it. I am completely satisfied with the
representation of my attorney.
Id. at 8 (emphasis added). Petitioner's counsel
signed the agreement as well. Id. By signing the
agreement, Petitioner waived his right to appeal except if
the sentence imposed exceeded the Guidelines range provided
for in the agreement or there was a technical error.
Id. at 6.
August 28, 2014, Petitioner pleaded guilty to conspiracy to
distribute one kilogram or more of a mixture or substance
containing a detectable amount of phencyclidine, in violation
of 21 U.S.C. § 846. ECF No. 82. At the rearraignment
hearing, Petitioner told the Court that he had received the
Superseding Indictment, had discussed the charges with his
attorney, and was satisfied with the advice of his counsel.
ECF No. 213 at 4:9-20. When the Court asked about the plea
agreement, Petitioner responded that he had read it, that he
discussed its contents with his attorney, that his attorney
was able to answer any questions that he had about it, and
that he signed it. Id. at 5:4-21. The Government
then summarized the plea agreement for the Court and
specifically outlined how the Guidelines were calculated,
never mentioning U.S.S.G. § 3E1.1(b). Id. at
7:8-13:13, 8:2-6, 8:19-11:13. Afterwards, Petitioner told the
Court that he did not have any concerns about the summary and
that it was accurate. Id. at 13:22-25, 14:1-3.
Court then asked Petitioner if he and his attorney had
discussed the Guidelines, and Petitioner confirmed that they
had. Id. at 18:23-19:1. Even so, the Court explained
how the Guidelines worked and how they would be used to
calculate his sentence. Id. at 18:23-24:4. The Court
explained to Petitioner that his BOL would be 38, but it
would be reduced by two levels to 36, and that his level
could be reduced even further to 34 if the Guidelines
changed. Id. at 20:24-21:5, 21:16-23. Petitioner
indicated that he understood all of this. Id. at
20:24-25, 21:1-23. Guidelines § 3E1.1(b) was never
mentioned, and when the Court asked Petitioner if the plea
agreement was the “entire agreement, ” and
whether anyone made private deals with or secret assurances
to him, Petitioner indicated that no one had and the
agreement was the whole deal. Id. at 15:6-23. The
Court later concluded that Petitioner was fully competent and
capable of entering the plea, that his plea was knowing and
voluntary, and that he was aware of the nature and
consequences of his plea. Id. at 31:25-32:8.
January 21, 2015, the Court sentenced Petitioner to 168
months imprisonment followed by five years of supervised
release. ECF No. 168. In determining Petitioner's
sentence, the Court found Petitioner's BOL to be 34 and
his criminal history category to be II instead of III because
of an overrepresented 2003 conviction, resulting in a
Guidelines range of 168 to 210 months imprisonment. ECF No.
169. Petitioner's attorney did not ask for an adjustment
under U.S.S.G. § 3E1.1(b), nor did the Government move
for one. Petitioner's attorney did ask the Court to
sentence Petitioner below the Guidelines range to the
statutory minimum of ten years imprisonment. Id. As
support, Petitioner's attorney provided the Court with a
letter from Petitioner, information on Petitioner's
background, and testimony by members of Petitioner's
family. Id. Petitioner also asked the Court himself
for the mandatory minimum. Id. Petitioner did not
appeal his sentence.
filed his § 2255 Motion on February 1, 2016, claiming
that his counsel provided ineffective assistance by not
seeking a sentence adjustment under U.S.S.G. § 3E1.1(b).
ECF No. 207. The Government filed its Opposition to
Petitioner's § 2255 Motion on May 2, 2016. ECF No.
218. Petitioner filed his Motion to Amend on June 2, 2017,
adding new claims that his counsel was ineffective by failing
(1) to inform him of the true nature of the charges against
him, and (2) to appeal his sentence, and that his sentence
was in plain error.
252. The Court ordered the Government to respond to
Petitioner's Motion to Amend on May 15, 2018, ECF No.
283, which the Government did on June 1, 2018
(“Response”). ECF No. 285. Petitioner filed a
Reply to the Government's Response (“Reply”),
in which he appears to add a new claim of ineffective
assistance of counsel as well as a new claim challenging the
order of forfeiture against him. ECF No. 291. The Government
filed, with the Court's permission, a Surreply,
addressing the added claims in Petitioner's Reply. ECF