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McGhee v. United States

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

November 29, 2017

WILLIAM MARK McGHEE, 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 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.

         I. BACKGROUND

         A. Indictment

         On 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.

         B. Agreement to Plead Guilty

         On 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.

         Petitioner's plea agreement contained the following factual basis for his guilty plea:

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.

         By 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.

         At the 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, 9-10, 13-14.

         Judge 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.

         Judge 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.

         Next, 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 18-20.

         At the 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.

         Judge 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.

         C. Sentencing

         The 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.

         Petitioner 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.[1] 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.

         Petitioner declined to make a statement. Id. Judge Hall imposed a term of imprisonment of 375 months. Id. ...


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