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Morrell v. United States

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

September 14, 2017




         Petitioner, an inmate at the Federal Correctional Institution in Jesup, Georgia, 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, this civil action be CLOSED, and a final judgment be ENTERED in favor of Respondent.

         I. BACKGROUND

         A. Indictment

         On February 10, 2012, the grand jury in the Southern District of Georgia charged Petitioner with distribution of cocaine, in violation of 21 U.S.C. § 841(a)(1) (“Count One”), distribution of controlled substances, in violation of 21 U.S.C. § 841(a)(1) (“Count Two”), unlicensed dealing in firearms, in violation of 18 U.S.C. §§ 922(a)(1)(A) and 924(a)(1)(D) (“Count Three”), and four counts of felon in possession of firearms, in violation of 18 U.S.C. § 922(g)(1) (“Counts Four-Seven”). United States v. Morrell, CR 412-013, doc. no. 3 (S.D. Ga. Feb. 10, 2012) (hereinafter “CR 412-013”). The Court appointed attorney Amy Lee Copeland to represent Petitioner. Id., doc. no. 16.

         B. Agreement to Plead Guilty

         On April 30, 2012, Petitioner pleaded guilty to Count Five. Id., doc. nos. 27-28, 35, 50. The plea agreement contained the following factual basis for the plea:

[O]n or about November 14, 2011, after being previously convicted of three previous convictions for drug trafficking offenses, the defendant knowingly possessed, in or affecting interstate commerce, firearms, to wit:
1. American Derringer Corp., Model M-1, .45 Colt/.410X2.5 gauge pistol, Serial Number 110880;
2. Intratec, Model AB-10, 9mm semiautomatic pistol, Serial Number A050407;
3. Taurus, Model PT 24/7 OSS DS, .40 caliber semiautomatic pistol, Serial Number SC014691; which before that time had been transported in interstate or foreign commerce.

Id., doc. no. 35, pp. 4-5.

         Petitioner attested he had sufficient time to review his case with his attorney, fully understood his rights and those he was giving up by pleaing guilty, and voluntarily agreed to the plea agreement. Id. at 7-8.

         C. Change of Plea Hearing

         During the change of plea hearing, United States District Judge William T. Moore, Jr., established Petitioner's competence to enter a guilty plea if he desired. Id., doc. no. 50, p. 18. 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 Ms. Copeland. Id. at 10-11. Judge Moore read the indictment and asked if Petitioner understood the charge therein. Id. at 11-13. Petitioner confirmed he understood. Id. Judge Moore also explained the rights Petitioner would be waiving by pleading guilty, and Petitioner affirmed he understood those rights. Id. at 7-9.

         Among the rights explained, Judge Moore 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 he had not been pressured or promised anything to plead guilty, id. at 16-17, 18-19, nor had anyone predicted Petitioner's exact sentence. Id. at 17. Judge Moore specifically asked Petitioner whether “anyone [had] done anything that you consider to be wrong or unfair which has forced you to plead guilty, ” to which Petitioner responded, “No, sir.” Id. at 15-16. Judge Moore found Petitioner's plea to be made voluntarily and with an understanding of the charges and the plea's consequences. Id. at 18-19.

         Judge Moore heard the factual basis for Petitioner's guilty plea from Task Force Officer Daryle McCormick with Alcohol, Tobacco, Firearms, and Explosives (ATF). Id. at 19. Officer McCormick summarized the facts underlying Petitioner's offense as follows:

[On November 14, 2011] agents was [sic] working in an undercover capacity, and they made contact with [Petitioner]. [Petitioner] entered the store with a black bag containing three firearms listed in the indictment, American Derringer, Intratec Model AB-10, a Taurus Model PT .40 caliber pistol. [Petitioner] negotiated a price with the undercover agent, and at that time [$1, 600 in] undercover funds was exchanged for the purchase of three firearms.

Id. at 19-20. Investigation revealed the firearms had been shipped in interstate commerce, and Petitioner had previously been convicted of possession with intent to distribute marijuana and sale of marijuana in Chatham County in 1999 and 2000. Id. at 20. Petitioner gave the following account of the factual basis for his offense:

On [a]pproximately November the 11th - I think the 11th - the 14th, I entered the warehouse where the agents was at with a black bag, and I sold them three firearms. I did wipe off the gun before I hand it to them to keep my fingerprints off them.

Id. at 21.

         Judge Moore accepted the guilty plea, finding a sound factual basis for it. Id. at 22.

         D. Presentence Investigation Report (PSI)

         The United States Probation Office prepared a PSI, which set Petitioner's base offense level at twenty-four. PSI ¶ 18. Petitioner's adjusted offense level was thirty-three after enhancements of: (1) four levels because the offense involved between eight and twenty-four firearms; (2) one level because the offense involved a stolen firearm; and (3) four levels because Petitioner engaged in trafficking of firearms. PSI ¶¶ 19-21, 25. Although Petitioner was only convicted of possessing three firearms, Petitioner sold ATF agents eight firearms in total, and therefore the probation officer attributed eight firearms to Petitioner for offense calculation purposes. PSI ¶ 12. Petitioner's adjusted offense level was decreased three points for acceptance of responsibility, resulting in a total offense level of thirty. PSI ¶¶ 28-30. Based on a total offense level of thirty and a criminal history category of VI, Petitioner's guideline imprisonment range was 168 to 210 months. PSI ¶ 59. However, because the statutory minimum sentence under 18 U.S.C. §§ 922(g)(1) and 924(e) was fifteen years, the guideline range was 180 to 210 months. Id.

         E. Sentencing

         Sentencing was held on August 17, 2012. CR 412-013, doc. nos. 36, 48. Petitioner filed no objections to the PSI. PSI Addendum. After hearing arguments from Ms. Copeland and Assistant United States Attorney (“AUSA”) Cameron Ippolitto, Judge Moore provided Petitioner with an opportunity to make a personal statement. CR 412-013, doc. no. 48, p. 6. Petitioner told Judge Moore,

Your Honor, first and foremost I stand in front of you today because I made bad choices in life. I want you to know that I take full responsibilities in all my actions that I took for this case and all cases that I've been involved in. I know right from wrong, but I chose the wrong route, and it cost me my freedom. I'm not going to make excuses for what I did or try to make sob stories, because then I'd be playing with your intelligence.

Id. at 6-7.

         Judge Moore sentenced Petitioner to 195 months of incarceration, five years of supervised release, and a $100.00 special assessment. Id., doc. no. 36; doc. no. 48, pp. 7-11. Final judgment was entered on August ...

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