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Roberts v. United States

United States District Court, D. Maryland

December 16, 2019

AUSTIN ROBERTS, III, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION

          Ellen Lipton Hollander United States District Judge

         Austin Roberts, III, Petitioner, filed a motion to vacate under 28 U.S.C. § 2255 (ECF 405), supported by a memorandum. ECF 405-1 (collectively, the “Petition”). The government opposes the Petition (ECF 416) and Roberts replied. ECF 420. Thereafter, Petitioner filed a “Motion For Permission To Support Claim Raised in 28 U.S.C. § 2255.” ECF 433. I granted that motion (ECF 456) and also ordered the government to supplement its response. Id. The government's supplemental response is docketed at ECF 459. Recently, at the Court's request (ECF 565), the government submitted another supplement, docketed at ECF 572.

         In particular, Roberts alleges ineffective assistance of counsel in connection with what he maintains was his improper designation as a career offender. ECF 405-1 at 2. He also complains that his lawyer was ineffective because, at his sentencing, the court allegedly used the wrong Sentencing Guidelines Manual. In Roberts's view, this violated the Ex Post Facto Clause of the Constitution. Id. at 4-5; see Constitution, Art. I, § 9.

         No hearing is necessary to resolve the Petition. For the reasons that follow, I shall deny the Petition.

         I. Procedural and Factual Background

         A.

         This Post Conviction case began on December 23, 2013, when Mr. Roberts, who was then self-represented, filed his Petition. ECF 405. Thereafter, on January 8, 2014, I ordered the government to respond. ECF 406. The government responded on March 10, 2014 (ECF 416) and Mr. Roberts replied on April 16, 2014. ECF 420. Then, on August 12, 2014, Mr. Roberts sought permission to support his claim. ECF 433. I granted that request by Order of November 6, 2015. ECF 456. And, I also directed the government to supplement its opposition. Id. The government responded, with exhibits, on December 11, 2015. ECF 459. Mr. Roberts replied. ECF 460.

         In the interim, in June 2015 the Supreme Court decided Johnson v. United States, __U.S., __135 S.Ct. 2551 (2015). As a result, the Office of the Federal Public Defender (“OFPD”) for the District of Maryland sought to represent many individuals in cases with potential Johnson claims. Mr. Roberts was one of them. ECF 464. The OFPD's motion, filed in March 2016, was granted. Id. Thereafter, on May 25, 2016, on behalf of Mr. Roberts, the OFPD filed a supplemental motion to vacate under 28 U.S.C. § 2255. ECF 468. Counsel argued that, in light of Johnson v. United States, Mr. Roberts did not qualify as a career offender. Id. However, because of volume of such cases, the OFPD said, Id. at 2: “Due to time constraints, counsel cannot, at this time, fully brief the issues presented in this petition.”

         On March 6, 2017, the Supreme Court decided Beckles v. United States, __U.S.__, 137 S.Ct. 886 (2017). There, the Supreme Court held that the Sentencing Guidelines are not subject to vagueness challenges under the Due Process Clause. Id. at 890; see Id. at 892. Of relevance here, the Court addressed the discretionary aspect of the career offender designation. It determined that the advisory sentencing guidelines are not subject to challenges under Johnson. Id. at 892.

         Subsequently, on April 26, 2017, Mr. Roberts, through counsel, filed “Notice Of Dismissal of 28 U.S.C. § 2255 Motion.” ECF 516. The submission made reference to dismissal of the supplemental petition, i.e., ECF 468. Thereafter, by Order of the same date (ECF 517), I directed the Clerk to close the civil case. In doing so, I inadvertently overlooked that the notice of dismissal (ECF 516) pertained only to the Supplemental Petition (ECF 468), and not to Mr. Roberts's original Petition (ECF 405). The Order closed the entire civil case.[1]

         The Court heard nothing further from counsel for the parties or from Mr. Roberts, until June 21, 2018. On that date Mr. Roberts filed a motion to reduce sentence pursuant to Amendment 782 of the United States Sentencing Guidelines (“U.S.S.G.”). ECF 541. I issued an Order on October 28, 2019, directing the government to respond. ECF 565.

         On November 19, 2019, the Court received correspondence from Mr. Roberts (ECF 566), inquiring as to the status of his original § 2255 Petition. That letter prompted a review of the docket by this Court. At that time, I discovered that the entire post-conviction case was closed in 2017. The Court issued an Order on December 2, 2019 (ECF 570), asking the government for a status report. The government responded on December 9, 2019. ECF 572. In its response, the government advised, inter alia, that Petitioner's motion for sentence reduction is under review by the OPFD for possible representation of Mr. Roberts.

         The Court sincerely regrets the delay in regard to the resolution of ECF 405. However, no prejudice has ensued, because there is no merit to the Petition.

         B.

         Petitioner was initially indicted on June 29, 2011. ECF 1. A Superseding Indictment was filed on September 14, 2011, naming defendant and eight others. ECF 44. In particular, the defendant was charged in Count One with conspiracy to distribute and possess with intent to distribute one kilogram of heroin, five kilograms or more of cocaine, and cocaine base, in violation of 21 U.S.C. § 841(a)(1).

         On May 10, 2013, Roberts entered a plea of guilty to Count One. ECF 329; ECF 330 (Plea Agreement). In the Plea Agreement, the parties stipulated that Roberts was a career offender under U.S.S.G. § 4B1.1(a), with a base offense level of 37 and a criminal history category of VI. ECF 330, ¶¶ 7, 8. Of significance here, the plea was entered pursuant to Fed. R. Crim. P. 11(c)(1)(C), by which the parties stipulated to a sentence of 228 months of imprisonment (19 years) as the appropriate disposition of the case. Id. ¶ 10; see also ECF 369 (Transcript of proceedings of May 10, 2013).

         The Plea Agreement also contained a stipulated Statement of Facts. ECF 330 at 9-10. Notably, the defendant agreed that he conspired to distribute “over 50 kilograms of cocaine and a kilogram of heroin, ” as well as cocaine base. Id. at 9. And, in the Plea Agreement, Roberts waived his right to appeal, except as to any sentence in excess of 19 years of imprisonment. Id. ¶ 14.

         The transcript of the Rule 11 proceeding is docketed at ECF 545. At that proceeding, the prosecution recounted, inter alia, that between 2007 and December 2012, the defendant conspired to distribute, distributed, and directed the distribution “of well over 50 kilograms of cocaine and a kilogram of heroin.” Id. at 40; see also ECF 330 at 9.[2] In addition, the conspiracy involved an unspecified quantity of cocaine base. Id. During the investigation, phone calls were intercepted, search warrants were executed, the defendant used several false identities, and he twice fled from law enforcement to avoid apprehension. ECF 545 at 40-44.

         At the guilty plea proceeding, while under oath (id. at 6), the defendant acknowledged the accuracy of the government's factual summary. Id. at 44. He also admitted that he had committed the crimes summarized by the government. Id. at 44.

         The Presentence Report (“PSR”) was docketed on July 16, 2013. ECF 370. Under the equivalency table found at U.S.S.G. § 2B1.1, Application Note 8(D), the marijuana equivalent for the agreed drug quantity amounted to 11, 000 kilograms. Id. ¶ 17. Under U.S.S.G. § 2D1.1(c)(2), this gave rise to a base offense level of 36, based on a quantity of at least 10, 000 kilograms but less than 30, 000 kilograms of marijuana. Id.

         In the absence of a career offender designation, with an offense level of 36, and three deductions for acceptance of responsibility under U.S.S.G. § 3E1.1(a), (b), Roberts would have had a final offense level of 33. Id. ¶ 24. However, ¶ 25 of the PSR reflects a career offender designation. Therefore, instead of a base offense level of 36, Roberts had a base offense level of 37, under U.S.S.G. § 4B1.1. And, with three deductions for acceptance of responsibility (id.¶ 26), he had a final offense level of 34. Id. ¶ 27.

         The career offender designation was based on two prior felony drug convictions. In particular, in 1995 the defendant was convicted in the Circuit Court for Wicomico County, Maryland, Case 95CR0051, of Felonious Possession of Cocaine. Id. ¶ 39. The PSR indicates that, according to the charging instrument, “the defendant possessed cocaine in sufficient quantity to reasonably indicate under all circumstances an intent to distribute.” Id.¶ 40. Roberts received a 14-year sentence, with all but four years suspended, to be followed by probation. Id.¶ 39. He later violated his probation, for which he received a 10-year sentence, consecutive to the five-year sentence imposed in Case 97CR0587, for the offense of Reckless Endangerment, as referenced in ¶¶ 41, 42. See Id. ¶ 39.

         The second qualifying predicate was a 1999 conviction in Case 02-K-99-000326, in the Circuit Court for Anne Arundel County, Maryland. Id. ¶ 43. The offense was possession of CDS with intent to distribute, for which Roberts received a sentence of two years' imprisonment. Id.; see also Id. ¶ 44.

         The PSR reflected a total of 11 criminal history points, which equated to a criminal history category of V. Id. ¶ 48. However, based on the career offender designation, the defendant's criminal history category was increased to VI. Id. ¶ 49.

         Under the Sentencing Guidelines, in the absence of a career offender designation, with a final adjusted offense level of 33, and a criminal history category of V, Roberts' advisory sentencing guideline range called for a period of incarceration ranging between 210 and 262 months. And, according to the PSR, with a final offense level of 34 and a criminal history category of VI, the advisory guideline range called for a period of incarceration of 262 to 327 months. By statute, Mr. Roberts faced a mandatory minimum term of imprisonment of 10 years, with a maximum term of imprisonment of life, under 21 U.S.C. § 841(b)(1)(A).

         Sentencing was held on August 9, 2013. ECF 382. In accordance with the terms of the C plea, the Court imposed a term of imprisonment of 228 months. See ECF 383 (Judgment); ECF 384 (Statement of Reasons). The sentence of 228 months was well below the career offender guideline range and towards the low end of the non-career offender guideline range.

         The sentencing transcript is docketed at ECF 399. At sentencing, the government described the case as “serious, ” noting that it involved “a massive amount of drugs . . . .” Id. at 7. Mr. Roberts allocuted, asking the Court to “go along with [his] plea . . . .” Id. at 11.

         Roberts was advised of his appellate rights. ECF 399 at 14. No appeal was noted. The Petition followed on December 23, 2013. ECF 405.

         II. ...


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