United States District Court, D. Maryland
Lipton Hollander United States District Judge
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.
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.
hearing is necessary to resolve the Petition. For the reasons
that follow, I shall deny the Petition.
Procedural and Factual Background
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.
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.”
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.
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.
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
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.
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.
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).
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
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.
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. 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.
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.
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.
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.
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. ¶
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.
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.
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).
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.
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.
was advised of his appellate rights. ECF 399 at 14. No appeal
was noted. The Petition followed on December 23, 2013. ECF