United States District Court, S.D. Georgia, Augusta Division
MAGISTRATE JUDGE'S REPORT AND
K. EFPS UNITED STATES MAGISTRATE JUDGE.
an inmate at the Federal Correctional Institution in Jesup,
Georgia, filed a motion under 28 U.S.C. § 2255 to
vacate, set aside, or correct his sentence. For the reasons
set forth below, 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.
December 3, 2015, the grand jury in the Southern District of
Georgia charged Petitioner and three co-defendants in a
thirteen-count indictment. United States v. McGhee,
CR 115-107, doc. no. 3 (S.D. Ga. Dec. 3, 2015) (hereinafter
“CR 115-107”). Along with naming Petitioner in
two forfeiture allegations, the grand jury charged Petitioner
in six counts: conspiracy to distribute and possess with
intent to distribute 50 grams or more of methamphetamine
(actual) or 500 grams or more of a mixture of methamphetamine
(Count One); distribution of methamphetamine (Counts Five and
Six); possession with intent to distribute methamphetamine
(Counts Seven and Eight); and possession of a firearm during
a drug trafficking crime (Count Ten). Id. As
originally charged, Petitioner faced a statutory sentence of
not less than ten years nor more than life imprisonment on
Count One, as well as not less than five years and up to life
imprisonment, consecutive to any other sentence, on
Count Ten. CR 115-107, doc. no. 4. The Court appointed
attorney Alex M. Brown under the Criminal Justice Act to
represent Petitioner. Id., doc. no. 59.
Agreement to Plead Guilty
March 3, 2016, Petitioner appeared with counsel and pled
guilty to the lesser included offense of the conspiracy
charged in Count One. Id., doc. nos. 117, 124-26.
The plea agreement stipulated the offense involved at least
fifteen kilograms of methamphetamine (mixture) but fewer than
45 kilograms of methamphetamine (mixture). Id., doc.
no. 126, (“Plea Agreement”), p. 4. In exchange
for the guilty plea, the government agreed to (1) dismiss the
remaining counts against Petitioner in the indictment; (2)
not object to a recommendation for a two-point acceptance of
responsibility reduction and move for an additional one-point
reduction under the Sentencing Guidelines if Petitioner's
offense level was sixteen or greater prior to the acceptance
of responsibility reduction; and (3) consider filing a
motion, based on any “substantial assistance”
provided by Petitioner, for downward departure under U.S.S.G.
§ 5K1.1 or requesting a reduction of Petitioner's
sentence under Fed. R. Crim. P. 35. Id. at 3-5.
plea agreement contained the following factual basis for his
That beginning on or before January 2013, the exact beginning
date being unknown to the Grand Jury, and continuing until
the return of this indictment, in McDuffie and Richmond
Counties in the Southern District of Georgia, the District of
South Carolina, and elsewhere, the defendant herein: did
knowingly and intentionally combine, conspire, confederate,
and agree together with other persons known and unknown, to
commit certain offenses against the United States, that is,
to distribute and to possess with the intent to distribute 5
grams or more of methamphetamine (actual) or 50 grams or more
of methamphetamine (mixture), a Schedule II controlled
substance, in violation of Title 21, United states Code,
Sections 841(a)(1), (b)(1)(B) and 846.
Id. at 2. With his signature on the Plea Agreement,
Petitioner “stipulate[d] that the factual basis set out
therein is true and accurate in every respect.”
Id. at 9.
signing the Plea Agreement, Petitioner also “entirely
waive[d] his right to a direct appeal of his conviction and
sentence on any ground” unless the Court (1) sentenced
him above the statutory maximum, (2) sentenced him above the
advisory Sentencing Guidelines range, or (3) the government
appealed the sentence. Id. at 5. Absent one of those
three conditions, “[Petitioner] explicitly and
irrevocably instruct[ed] his attorney not to file an
appeal.” Id. Further, Petitioner waived his
right to collaterally attack his conviction and sentence on
any ground other than ineffective assistance of counsel.
Id. at 6. By signing the Plea Agreement, Petitioner
additionally attested Mr. Brown had “represented him
faithfully, skillfully, and diligently, and he is completely
satisfied with the legal advice given and the work performed
by his attorney.” Id. at 7.
guilty plea hearing, Chief United States District Judge J.
Randal Hall first confirmed no one had threatened or
pressured Petitioner into pleading guilty and that he clearly
understood where he was and why he was in court.
Id., doc. no. 216 (“Rule 11 Tr.”), pp.
3, 5. Judge Hall reviewed all the charges against Petitioner
in the indictment, as well as the two forfeiture allegations
against him. Id. at 5-6. Petitioner confirmed he had
as much time as he needed to go over the charges with Mr.
Brown. Id. at 6. Petitioner also testified under
oath he was satisfied with the assistance he had received
from Mr. Brown and that he had read and reviewed the Plea
Agreement with counsel before signing it. Id. at 7,
Hall also explained the rights Petitioner would be waiving by
pleading guilty, and Petitioner affirmed he clearly
understood those rights. Id. at 7-9. 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. Judge Hall also specifically reviewed
the appeal and collateral attack waiver provisions of the
Plea Agreement. Id. at 11. Judge Hall confirmed that
other than the Plea Agreement, no one on behalf of the
government had promised anything to procure the guilty plea.
Id. at 11-12.
Hall reviewed the lesser included offense to which Petitioner
was pleading, as well as the stipulated drug amount and the
statutory penalty of not less than five nor more than forty
years of imprisonment. Id. at 10-12. When asked,
Petitioner confirmed that he understood the possible
imprisonment penalty, as well as the potential $ 5 million
fine and four years of supervised release after completion of
the term of imprisonment. Id. at 12, 14. Judge Hall
also explained that upon entry of the guilty plea, he would
order the preparation of a Presentence Investigation Report
(“PSI”), and Petitioner's sentence would be
based on the information in the PSI. Id. at 13-15.
Judge Hall specifically explained the PSI would calculate an
advisory Sentencing Guidelines range, but he could sentence
Petitioner within the range, below the range, or above the
range. Id. at 14-15. Petitioner stated that he
understood the sentencing process described by Judge Hall and
that no one had promised him he would receive a particular
sentence. Id. at 15.
Judge Hall heard a factual basis for the guilty plea from DEA
Task Force Officer Joel Danko. Id. at 16-21. TFO
Danko testified Petitioner first came to the attention of law
enforcement officers in April of 2014, when controlled
purchases of methamphetamine from Petitioner led to the
execution of a search warrant, discovery of a small amount of
methamphetamine, and an opportunity for Petitioner to
cooperate in a case against a source who had been supplying
methamphetamine weekly to Petitioner. Id. at 17-18.
However, after cooperating on that one case, Petitioner grew
his distribution network to the point of obtaining between
two to four kilograms of methamphetamine and marijuana at a
time to supply up to seven people with drugs. Id. at
time of his arrest forming the basis for his federal
indictment, Petitioner had a bag containing approximately one
pound of crystal methamphetamine. Id. at 20. TFO
Danko further testified Petitioner had been supplying Joseph
Norman, Jonathan Ryder, Cecil Hill, Rachel Padgett and Dustin
Hall with methamphetamine. Id. at 20-21. Petitioner
stated to Judge Hall he had no disagreement with anything TFO
Danko had recounted and admitted his participation in the
conspiracy charged in Count One of the indictment.
Id. at 21. Petitioner also told Judge Hall he was
guilty of, and wanted to plead guilty to, the lesser included
offense of Count One of the indictment. Id.
Hall then summarized the proceedings as follows:
With the entry of the plea, the court finds that the
[Petitioner] is competent. He fully understands the charge
against him. There is an independent factual basis supporting
his plea of guilt[y] on this offense. He knows the statutory
punishment, including the mandatory minimum punishment, that
could be imposed on the charge, and he knows his jury rights
which he has knowingly and voluntarily waived.
I further find that [Petitioner's] decision to plead
guilty this morning was voluntary, knowing, and not the
result of any force, pressure, threats, or promises other
than the promises in the Plea Agreement. Therefore,
[Petitioner's] plea is accepted, and I now adjudge him
guilty of the lesser included offense of count one of the
indictment based upon that plea.
Id. at 22.
United States Probation Office then prepared a PSI which set
Petitioner's Total Offense Level at forty-one, Criminal
History Category at I, and Guidelines imprisonment range at
324 to 405 months. PSI ¶¶ 36, 40, 58. Because of
the stipulated drug quantity in the Plea Agreement, the base
offense level under U.S.S.G. § 2D1.1 was thirty-six. PSI
¶ 26. That base level was increased three times for an
adjusted offense level of forty-four: (1) two levels under
§ 2D1.1(b)(1) for possession of a dangerous weapon (two
firearms recovered in execution of search warrant at
Petitioner's residence); (2) two levels under §
3B1.1 and § 2D1.1(b)(15)(E) for an aggravating role and
offense committed as part of a pattern of criminal conduct
engaged in as a livelihood; and (3) four levels under §
3B1.1(c) for operating as an organizer, leader, manager, or
supervisor in the criminal activity. PSI ¶¶ 27, 28,
30. The adjusted offense level was reduced three points for
Petitioner's acceptance of responsibility. PSI
¶¶ 34-36. The statutory maximum term of
imprisonment for Petitioner's offense was forty years. CR
115-107, doc. no. 4, p. 2; PSI ¶ 57. Had Petitioner been
convicted of the 18 U.S.C. § 924(c) charge in Count Ten
dismissed as part of the Plea Agreement, the statutory
penalty would have been not less than five years and up to
life imprisonment, consecutive to any other sentence. CR
115-107, doc. no. 4, p. 3; PSI ¶ 59.
raised three objections to the PSI based on the three
enhancements applied to the base offense level. See
PSI Add.; CR 115-107, doc. no. 217, (“Sent.
Tr.”), p. 4. At sentencing, Petitioner withdrew two of
those objections, but argued the third objection regarding
the enhancement for Petitioner's leadership
role. Upon consideration of Petitioner's
objection, the undisputed facts in the PSI, and the testimony
from TFO Danko at sentencing as to the number of people
involved in the criminal activity, Judge Hall overruled the
objections and adopted the factual statement of the PSI and
the application of the advisory Guidelines as his own
findings of fact. Id. at 4-24. Mr. Brown then
requested Judge Hall consider a downward departure from the
Guidelines range based on Petitioner's young age, lack of
criminal history, and non-violent nature of the offense.
Id. at 25.
declined to make a statement. Id. Judge Hall imposed
a term of imprisonment of 375 months. Id. ...