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White v. United States

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

January 12, 2017

EMORY WHITE, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          REPORT AND RECOMMENDATION

         Guilty-plea convicted of conspiracy to commit food stamp fraud, Emory White seeks 28 U.S.C. § 2255 relief. Doc. I[1] (information); docs. 7, 8 & 14 (waiver of indictment and plea agreement); doc. 16 (judgment ordering 60 months' imprisonment and restitution in the amount of $899, 971.20); see doc. 19 at 8-14 (stating he was merely an employee following the marching orders of an "unethical boss" and should not have been subjected to such a harsh sentence).

         A. BACKGROUND

         White was indicted for conspiring, along with 53 codefendants, to purchase illegally more than $19 million in benefits from the Supplemental Nutrition Assistance Program (SNAP) and the Georgia Women, Infants, and Children (WIC) program for cash. He was charged with conspiring to use interstate wire communications to execute a fraudulent scheme in violation of 18 U.S.C. § 1349, and conspiring to launder money in violation of 18 U.S.C. § 1956. Doc. 3. Both counts carried with them potential 20-year sentences. Id. Upon the advice of counsel, movant waived the indictment and pled guilty to one count of conspiracy to commit mail fraud, wire fraud, and money laundering in violation of 18 U.S.C. § 371. Docs. 8 & 14.

         At the plea hearing, White admitted that as an employee of Wayne Jackson he purchased WIC vouchers for cash at two separate stores. Doc. 23 at 27; see afeoPSR ¶ 25. Based on his lengthy criminal history, movant's total offense level was set at 35 with a criminal history category of VI, fetching an advisory guideline range of 292 to 365 months' imprisonment. PSR ¶¶ 28-40, 54, 87. Pursuant to the negotiated plea agreement, however, the maximum penalty and guideline range of punishment was capped at 60 months' incarceration, the statutory maximum for a violation of 18 U.S.C. § 371. Id. at ¶¶ 87 & 88. Despite counsel's request for a departure below the statutory maximum sentence based on White's minimal role in the enterprise, the Court sentenced White to 60 months' imprisonment, the statutory maximum. Docs. 12, 16, 24; see 18 U.S.C. § 371.

         B. ANALYSIS

         White presents three grounds for relief: (1) that his plea was neither knowingly nor voluntarily made, (2) that the plea agreement is invalid because it lacked "consideration, " and (3) ineffective assistance of counsel during the plea negotiations. Doc. 20.

         1. Knowing and Voluntary Plea

         White contends, despite his clear testimony to the contrary, that his guilty plea was not voluntarily, knowingly, or intelligently given. Doc. 20. "A guilty plea, if induced by promises or threats which deprive it of the character of a voluntary act, is void. A conviction based upon such a plea is open to collateral attack." Machibroda v. United States, 368 U.S. 487, 493 (1962). At the same time, plea bargaining retains its benefits of certainty and efficiency "only if dispositions by guilty plea are accorded a great measure of finality." Blackledge v. Allison, 431 U.S. 63, 71 (1977) ("To allow indiscriminate hearings in federal postconviction proceedings . . . for federal prisoners under 28 U.S.C. § 2255 . . . would eliminate the chief virtues of the plea system -- speed, economy, and finality.")- While § 2255 exists "to safeguard a person's freedom from detention in violation of constitutional guarantees, " "[m]ore often than not a prisoner has everything to gain and nothing to lose from filing a collateral attack upon his guilty plea." Id. at 71-72.

         As a result, "the representations of the defendant, his lawyer, and the prosecutor at [a plea] hearing, as well as any findings made by the judge accepting the plea, constitute a formidable barrier in any subsequent collateral proceedings." Blackledge, 431 U.S. at 73-74, 80 n. 19 (if the record reflects the procedures of plea negotiation and includes a verbatim transcript of the plea colloquy, a petitioner challenging his plea will be entitled to an evidentiary hearing "only in the most extraordinary circumstances"). "The subsequent presentation of conclusory allegations unsupported by specifics is subject to summary dismissal, as are contentions that in the face of the record are wholly incredible." Id. at 74.

         White contends that his guilty plea was made unknowingly and involuntarily because (1) his attorney did not fully explain to him what a guilty plea meant, and (2) his attorney "induced [his plea] by fraud." Doc. 20 at 10. His sworn testimony at the Change of Plea and Sentencing Hearings, however, directly contradicts these contentions.[2]White swore that he had spoken with his lawyer about the indictment and information, his guilty plea, and the plea agreement, and that he understood the charges against him. Doc. 23 at 13-15. He also testified that he understood he could receive a prison sentence for his part in the conspiracy up to five years' imprisonment, a fine up to $25, 000, and up to three years' supervised release. Id. at 16-17. And he swore he understood that the role he played in the conspiracy would be included in the calculation of his sentence. Id. at 18. Finally, he testified that no one had predicted or guaranteed any sentence to him, nor had anyone done anything "wrong or unfair" to force him to plead guilty. Id. at 17-19. Based on his unambiguous and clear testimony, the Court found White understood "the substance and meaning of the charges" against him, "the consequences of his plea, and the facts which the Government must prove and which, by his plea of guilty, admits all the essential elements of the offense [;]" was "engaged in th[e] proceeding with intelligence and competence [;]" and had "offered his plea of guilty as a matter of his own free choice." Id. at 23-24.

         Faced with his sworn affirmation of understanding in an otherwise thorough and wide-ranging plea colloquy, and unsworn, self-serving testimony to the opposite effect at a time when he has every incentive to embellish, see Winthrop-Redin v. United States, 767 F.3d 1210, 1216 (11th Cir. 2014), the Court finds White's plea testimony dispositive. Movant cannot now escape his sworn testimony at the Rule 11 hearing that his plea was both knowing and voluntary to claim it was neither. See Blackledge, 431 U.S. at 74 ("Solemn declarations in open court carry a strong presumption of veracity."); accord United States v. Gonzalez-Mercado, 808 F.2d 796, 800 n. 8 (11th Cir. 1987) ("While Rule 11 is not insurmountable, there is a strong presumption that the statements made during the colloquy are true."); United States v. Stitzer, 785 F.2d 1506, 1514 n. 4 (11th Cir. 1986) ("[I]f the Rule 11 plea-taking procedure is careful and detailed, the defendant will not later be heard to contend that he swore falsely."). Hence, his unintelligent plea claim fails on the merits.[3]

         2. Plea Agreement

         Movant argues that the plea agreement, a contract between himself and the Government, fails as a contract and is "due to be voided as a matter of law." Doc. 20 at 10 (apparently contending that the contract lacks adequate consideration because his guilt is outweighed by the sentence imposed). Even assuming this claim is not procedurally defaulted, see Bousley v. United States, 523 U.S. 614, 621 (1998), he has received more-than adequate consideration in exchange for his guilty plea.

         Pleading out resulted in a cap of 60 months' incarceration; had White been convicted as charged in the indictment, "he would have faced an advisory guideline range of imprisonment of 292 to 365 months." PSR at ¶ 87-88. Though movant does not fully appreciate the disparity between his 60-month (5-year) sentence and a probable 292-month (more than 24-year) sentence while serving five years and repaying a significant sum for what he believes to be a minimal role in the fraud, it is clear that White received the full benefit of his bargain. See Cummings v. United States, 2013 WL 2422889 at *8 (S.D. Ga. June 3, 2013) ("A petitioner thus fails to establish that he was prejudiced by counsel's failure to negotiate a more favorable plea agreement with nothing more than the bald assertion that such an agreement might have been possible."); Freeman v. United States, 2011 WL ...


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