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Mack v. United States

United States District Court, S.D. Georgia, Augusta Division

January 11, 2017

ABDUL JABBAR MACK, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          BRIAN K. EFPS UNITED STATES MAGISTRATE JUDGE.

         Petitioner, an inmate at the Federal Medical Center in Butner, North Carolina, has filed a motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. The Court REPORTS and RECOMMENDS the § 2255 motion be DENIED without an evidentiary hearing, this civil action be CLOSED, and a final judgment be ENTERED in favor of Respondent.

         I.BACKGROUND

         A. Indictment

         On October 10, 2012, a grand jury returned a second superseding indictment, charging Petitioner and his codefendants with conspiracy to distribute and possess with intent to distribute controlled substances, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846 (Count One), possession with intent to distribute controlled substances, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (Count Two), and conspiracy to commit money laundering, in violation of 18 U.S.C. §§ 1956(a)(1)(B)(i), 1956(h), and 2 (Count Three). United States v. Mack, CR 111-270, doc. no. 186 (S.D. Ga. Jul. 11, 2012) (“CR 111-270”). The Court appointed attorney Brendan N. Fleming to represent Petitioner. (Id., doc. no. 150.)

         B. Agreement to Plead Guilty

         On February 25, 2013, Petitioner pleaded guilty to Counts I and III for drug conspiracy and money laundering. (Id., doc. nos. 251, 252.) The plea agreement contained a factual basis for the plea which stated in relevant part:

[B]eginning on or about January 1, 2006 . . . the defendant . . . did knowingly and intentionally combine, conspire, confederate, and agree together with other persons . . . to distribute and possess with intent to distribute 5 kilograms or more of cocaine hydrochloride, a Schedule II controlled substance, in violation of Title 21, United States Code, Sections 841 (a)(1), 841(b)(1)(A), all done in violation of Title 21, United States Code, Section 846. . . . [B]eginning . . . at least as early as January 1, 2006 . . . the defendant . . . would knowingly conduct and attempt to conduct financial transactions affecting interstate commerce, which transactions involved the proceeds of . . . conspiracy to possess with intent to distribute and to distribute controlled substances and possession with intent to distribute controlled substances, knowing that the transactions were designed in whole or in part to conceal and disguise the nature, location, source, ownership, and control of the proceeds of specified unlawful activity [and] knowing that the property involved in the financial transactions represented the proceeds of some form of unlawful activity, in violation of Title 18, United States Code, Section 1956(a)(1)(B)(I), all done in violation of Title 18, United States Code, Sections 1956(h) and 2. . . . (Id., doc. no. 252, pp. 5-7.)

         As to the amount of cocaine used to calculate the sentencing guideline range, the parties stipulated “based on the evidence available to the government at this time, the quantity of controlled substances to be attributed to the defendant under this plea agreement is at least 15 kilograms of cocaine hydrochloride but less than 59 kilograms of cocaine hydrochloride.” (Id. at 6.)

         The plea agreement also contained an appeal and collateral attack waiver, as follows:

To the maximum extent permitted by federal law, the defendant voluntarily and expressly waives the right to appeal the conviction and sentence and the right to collaterally attack the conviction and sentence in any post-conviction proceeding, including a § 2255 proceeding, on any ground, except that: the defendant may file a direct appeal of his sentence if it exceeds the statutory maximum; and the defendant may file a direct appeal of his sentence if by variance or upward departure, the sentence is higher than the advisory sentencing guideline range as found by the sentencing court.

(Id. at 5.)

         Petitioner attested he read the plea agreement, understood what it said and meant, and it accurately set forth the terms and conditions of the agreement as negotiated by his attorney on his behalf and with his permission. (Id. at 13.)

         C. Change of Plea Hearing

         During the change of plea hearing, the Honorable J. Randal Hall established Petitioner's competence to enter a guilty plea if he desired. (Id., doc. no. 302, p. 34.) Petitioner also testified under oath he had adequate time to discuss his case with his attorney and was entirely satisfied with the services rendered by Mr. Fleming. (Id. at 7, 9.) Judge Hall read each count of the indictment and asked if Petitioner understood the charges. (Id. at 4-6.) Petitioner confirmed he understood. (Id. at 7.) Judge Hall also explained the rights Petitioner would be waiving by pleading guilty, and Petitioner affirmed he clearly understood those rights. (Id. at 9-12.)

         Among the rights explained, Judge Hall reviewed the right to trial by jury, the presumption of innocence, the government's burden to prove guilt beyond a reasonable doubt, the right to present and cross-examine witnesses, and the right to remain silent. (Id.) Petitioner affirmed no one had forced, threatened, or pressured him to plead guilty, (id. at 3) nor had anyone guaranteed, predicted, or prophesied Petitioner would receive a specific sentence. (Id. at 18.)

         In addition, Judge Hall reviewed the waiver provision in Petitioner's plea agreement, informing Petitioner he was “waiv[ing] or giv[ing] up [his] rights to appeal [his] sentence and conviction directly and indirectly in a post-conviction proceeding on any ground.” (Id. at 13.) However, Judge Hall explained Petitioner could appeal if Petitioner was sentenced above the guideline range, above the statutory range, or if the government appealed. (Id.) Petitioner confirmed he understood. (Id.) Judge Hall also asked Petitioner if he discussed his plea agreement with counsel and if he signed the plea agreement, cautioning Petitioner if he did, he would be bound by all the terms of the agreement. (Id. at 11.) Petitioner affirmed he discussed the plea agreement with counsel, signed the plea agreement, and understood he would be bound by all the terms within the plea agreement. (Id. at 12.)

         Judge Hall heard the factual basis for Petitioner's guilty plea from Special Agent Jamie Lukich with the Drug Enforcement Administration (DEA). (Id. at 20.) SA Lukich testified that, on January 26, 2011, Cleveland Hall was stopped by the Warren County, Georgia police and found to possess fourteen kilograms of cocaine. (Id. at 20, 26-27.) Law enforcement officials later determined Glenn Cook, a known drug trafficker in Atlanta, Georgia, was the source of the cocaine. (Id.) After his indictment in the Northern District of Georgia, Cook began cooperating with law enforcement and identified Petitioner and his co-defendant LaTron Ware as the recipients of the cocaine seized from Hall's car. (Id.) Cook further stated he had been supplying Petitioner and Ware with cocaine prior to that date and Hall was their carrier. (Id.)

         A financial investigation showed Petitioner claimed a total of $33, 428 on his income tax returns from 2007 through 2011, yet made deposits and cash expenditures in the amount of $231, 362 over this same period. (Id. at 27.) SA Lukich concluded this excess income came from selling drugs. (Id.) Furthermore, SA Lukich discussed a 2007 Dodge Charger driven by Petitioner that was registered to Ware and purchased with alleged $8, 500 per month in income from Made Entertainment, a joint business venture between Petitioner and Ware. (Id. at 30.) However, Made Entertainment showed no income on its tax returns for 2006, 2007, and 2008. (Id.) Judge Hall accepted the guilty plea, finding a sound factual basis for it. (Id. at 34.)

         D. Presentence Investigation Report (PSI)

         The United States Probation Office prepared a PSI, which set Petitioner's base offense level for Count One at thirty-four, pursuant to U.S.S.G. § 2D1.1, and Petitioner's base offense level for Count Three at forty, pursuant to U.S.S.G. § 2S1.1. (PSI ¶¶ 46, 52.) Petitioner's offense level for Count One increased to forty after enhancements for: (1) organizer or leader of a criminal activity that involved five or more participants, and (2) pattern of criminal conduct engaged in as a livelihood. (PSI ¶¶ 47, 49.) Petitioner's offense level for Count increased to forty-two after an enhancement for his concurrent conviction under 18 U.S.C. § 1956. (PSI ¶ 53.) Because the adjusted offense level from Count Three resulted in the higher offense level, Petitioner's combined adjusted offense level was forty-two. (Id. ¶ 59.) This offense level decreased three points for acceptance of responsibility resulting in a total offense level of thirty-nine. (PSI ¶¶ 60-62.) Based on a total offense level of thirty-nine and a criminal history category of I, Petitioner's guideline imprisonment range was between 262 and 327 months. (PSI ¶ 89.)

         E. Sentencing

         Sentencing was held on August 7, 2013. (CR 111-270, doc. no. 299.) Through his counsel, Petitioner filed two objections to the PSI: (1) the enhancement pursuant to U.S.S.G. § 2D1.1(b)(14)(E), criminal livelihood, constituted double counting as the conduct was the result of Petitioner pleading guilty to Count Three, and (2) the four-level enhancement pursuant to U.S.S.G. § 3B1.1(2) was improper because Petitioner's role in the conspiracy was not extensive. PSI Addendum ¶¶ 1-2. At sentencing, Mr. Fleming argued Petitioner's double counting objection to the Court at length; however, after hearing the Court's and Assistant United States Attorney (“AUSA”) Patricia Rhodes's responses and consulting with Petitioner, he withdrew that objection. (CR 111-270, doc. no. 299, pp. 4-11.) The parties then turned to Petitioner's second objection, with SA Lukich and Petitioner both testifying regarding Petitioner's role in the conspiracy. (Id. at 11, 15-42.) After hearing arguments from Mr. Fleming and AUSA Rhodes, Judge Hall overruled the objection, adopted the PSI statements as the Court's findings of fact, and determined the applicable guidelines range was 262 to 327 months. (Id. at 42-50.) Judge Hall then heard statements in mitigation from Petitioner and his attorney. (Id. at 50-52.)

         After considering the statements in mitigation, Judge Hall outlined aggravating factors. Judge Hall noted Petitioner was a major distributor of cocaine in both the Augusta, Georgia, and Charleston, South Carolina, area. (Id. at 53.) Judge Hall further noted Petitioner was a leader in the distribution operation, using more than one courier to transport quantities of cocaine likely exceeding 400 kilograms in vehicles outfitted with hidden compartments or traps. (Id.) Finally, Judge Hall noted Petitioner's lack of concern for the communities into which his drugs were distributed. (Id. at 54.) Judge Hall dismissed Count Two and sentenced Petitioner to 262 months of incarceration, the bottom of Petitioner's guideline range, five years of supervised release, a $200.00 special assessment, and a $3, 000 fine. (Id., doc. no. 281.)

         F. ...


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