Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Kennedy v. United States

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

February 1, 2018

WESTLEY KAYEON KENNEDY, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER AND MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          R. STAN BAKER UNITED STATES MAGISTRATE JUDGE

         Movant Westley Kayeon Kennedy, (“Kennedy”), who is currently incarcerated at the Federal Correctional Institution, Williamsburg in Salters, South Carolina filed a Motion to Vacate, Set Aside, or Correct his Sentence pursuant to 28 U.S.C. § 2255. (Doc. 1.) Respondent filed a Response, (doc. 12), to which Kennedy filed Motions to Amend, (doc. 16, 17), and an Amended Section 2255 Motion, (doc. 17-1). Respondent filed a Response to Kennedy's Amended Section 2255 Motion, (doc. 18), and Kennedy filed a Reply, (doc. 19). For the purposes of the Court's Order, the Court GRANTS Kennedy's Motions to Amend, (docs. 16, 17), and considers his Amended Motion, (doc. 17-1), as the operative pleading.

         However, for the reasons which follow, the Court DENIES Kennedy's Motion to Appoint Counsel. (Doc. 20.) Further, I RECOMMEND that the Court DENY Kennedy's Amended Section 2255 Motion, DIRECT the Clerk of Court to CLOSE this case and enter the appropriate judgment of dismissal, and DENY Kennedy a Certificate of Appealability and in forma pauperis status on appeal.

         BACKGROUND

         In this Section 2255 Motion, Kennedy challenges a conviction and sentence he received in this Court, after entry of a guilty plea to the lesser included offense of conspiracy to possess with intent to distribute, and to distribute, a quantity of controlled substances, in violation of 21 U.S.C. § 846. J., United States v. Kennedy, et al., 2:14-cr-12 (S.D. Ga. Feb. 23, 2015), ECF No. 627. Kennedy had a recommended total offense level of 37 and criminal history category IV. (Pre-Sentence Investigation Report (“PSI”), ¶ 70.) Based on this offense level and category, Kennedy's advisory sentencing guideline range was 360 months to life. (Id.) However, the statutory maximum term of imprisonment for the crime to which he pleaded guilty is twenty (20) years, or 240 months. See 21 U.S.C. §§ 846 and 841(b)(1)(C); U.S.S.G. § 5G1.1(a); (PSI ¶ 70). The Honorable Lisa Godbey Wood sentenced Kennedy to the maximum allowed 240 months' imprisonment. J., United States v. Kennedy, et al., 2:14-cr-12 (S.D. Ga. Feb. 23, 2015), ECF No. 627. The Court appointed B. Reid Zeh, III to represent Kennedy during these proceedings. CJA 20, United States v. Kennedy, et al., 2:14-cr-12 (S.D. Ga. Apr. 11, 2014), ECF No. 43.

         In June 2014, the grand jury for the Southern District of Georgia returned a superseding indictment against Kennedy and twelve others for twenty-two (22) violations of federal law. Superseding Indictment, United States v. Kennedy, et al., 2:14-cr-12 (S.D. Ga. June 4, 2014), ECF No. 208. Specifically, Kennedy was charged with conspiracy to possess with intent to distribute, and to distribute, fifty (50) grams or more of a mixture of methamphetamine, and quantities of cocaine and oxycodone, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B), (b)(1)(C), and § 846 (Count 1); two counts of distribution of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C) and 18 U.S.C. § 2 (Counts 3, 4); and eight counts of use of a communication facility (cell phones), in violation of 21 U.S.C. § 843(b) (Counts 7-8, 10-12, 16- 18). (Id.) If convicted of each Count, Kennedy faced a potential maximum sentence of 120 years' imprisonment, fines totaling $9, 000, 000.00, or both. Penalty Certification, United States v. Kennedy, et al., 2:14-cr-12 (S.D. Ga. June 4, 2014), ECF No. 209.

         However, Kennedy and his attorney, Mr. Zeh, were able to negotiate a plea agreement with the Government whereby Kennedy agreed to plead guilty to the lesser included offense of Count One, violation of Section 846, in exchange for the Government dropping the remaining charges. Plea Agreement, United States v. Kennedy, et al., 2:14-cr-12 (S.D. Ga. July 15, 2014), ECF No. 425, pp. 2-3. As indicated above, the statutory maximum term of imprisonment for the violation to which Kennedy pleaded is twenty (20) years. Under the terms of the plea agreement, Kennedy promised to, among other things, acknowledge the factual basis of his plea, cooperate with the government for a downward departure, waive his right to direct appeal (with limited exception), and waive his right to collaterally attack his sentence. Id. at p. 3. In return, the Government promised to refrain from objecting to an acceptance of responsibility reduction, not file a 21 U.S.C. § 851 enhancement, and to consider whether Kennedy's cooperation sufficed for a downward departure. Id. at p. 2.

         Kennedy appeared before Judge Wood for his change of plea, or Rule 11, proceeding. Judge Wood addressed Kennedy and informed him the purpose of the hearing was to ensure that he understood the case that was pending against him, that he understood all of the rights he was waiving or giving up by pleading guilty, and that there was a factual basis for the guilty plea. Change of Plea Hr'g Tr., United States v. Kennedy, et al., 2:14-cr-12 (S.D. Ga. June 10, 2015), ECF No. 666, pp. 2-3. Judge Wood inquired whether anyone had forced Kennedy to offer to plead guilty, and he said no one had done so and that pleading guilty was what he wanted to do. Id. at p. 3. Judge Wood told Kennedy that he did not have to plead guilty, and if he chose to persist in his not guilty plea, he would have the right to: a public and speedy trial by jury; a presumption of innocence during that trial; the assistance of trial counsel; see, hear, confront, and cross-examine the Government's witnesses and evidence; call witnesses on his behalf; and testify himself or remain silent. Id. at pp. 6-8. However, Judge Wood cautioned Kennedy he would be waiving these rights if he pleaded guilty and if she accepted that guilty plea. Id. at p. 8.

         Kennedy stated he understood. Id. at pp. 6-8. Kennedy also stated he and Mr. Zeh reviewed the Superseding Indictment together, that he had the opportunity to talk to Mr. Zeh about the facts of his case, as well as about the proposed plea agreement, and that Mr. Zeh had discussed the law and procedure pertaining to his case. Id. at pp. 9-10. Kennedy stated that he was satisfied with Mr. Zeh's services and that he had no complaints whatsoever. Id. at p. 12.

         Judge Wood reviewed the counts of the Superseding Indictment applicable to Kennedy with him and the essential elements of the crimes for which he was charged and that the Government would have to prove if he went to trial. Id. at pp. 10-14. Judge Wood advised Kennedy of the maximum sentence she could impose, twenty (20) years, for the crime to which he was pleading. Id. at pp. 13-14. Moreover, Judge Wood explained to Kennedy that, in imposing a sentence upon him, she would have to take into consideration the advisory Sentencing Guidelines and the factors set forth in 18 U.S.C. § 3553. Id. at pp. 14-15. Kennedy stated that no one had promised him an exact sentence, and Judge Wood explained that anyone's estimation of what his sentence might be would in no way bind the Court. Id. at p. 15. Judge Wood then asked the Assistant United States Attorney (“AUSA”) to summarize the provisions of the plea agreement. AUSA Carlton Bourne stated:

Your Honor, the Government agrees not to object to a recommendation from the Probation Office that the Defendant receive a three-level reduction for acceptance of responsibility based on the timeliness of his plea and provided that he truthfully admits the conduct. The Government agrees to dismiss the remaining counts of the Superseding Indictment as to this Defendant. The Government agrees not to file an 851 enhancement against this Defendant. If the Defendant cooperates, the Government agrees to consider his cooperation with the Government qualifies as “substantial assistance” and warrants the filing of a motion for downward departure or a motion to reduce sentence.
In exchange, the Defendant agrees to plead guilty to the lesser included offense of Count One; acknowledge at the time of the plea the truth of the factual basis; pay on the date of sentencing any assessments imposed by the Court. If he cooperates, he agrees to provide full, complete, candid, and truthful cooperation.
He agrees to waive his right to appeal with three exceptions. And he agrees to entirely waive his right to collaterally attack his conviction and sentence on any ground, including a Section 2255 motion.

Id. at pp. 16-17. Judge Wood asked Kennedy if AUSA Bourne's summarization of the plea agreement was consistent with the plea agreement he signed, and he stated it was. Id. at p. 17. Kennedy also stated he read the plea agreement, and Mr. Zeh answered any questions he may have had before he signed the agreement. Id. Kennedy reaffirmed that no one had made him any promises regarding the outcome of his case, other than the provisions contained in the plea agreement. Id.

         Judge Wood then specifically addressed the direct appeal waiver with Kennedy:

I want to follow up on something that Mr. Bourne referenced. And that is, as a part of this plea agreement that you are urging, it does contain a waiver of appellate rights. It states: Defendant entirely waives his right to direct appeal of his conviction. The Defendant agrees to waive his right to appeal the sentence. Now there are three exceptions to that appeal waiver. That is, if one of these three things were to occur, you would be able to appeal directly, but only if one of these three things were to occur. Number one, if I were to sentence you above the statutory maximum, then you could appeal that directly; or number two, if I were to sentence you above the advisory guideline range as found by me, then you could appeal that directly; or number three, if the Government were to file a direct appeal, then you too could file a direct appeal. But otherwise, aside from those three situations, by virtue of this plea agreement that you are proposing, you waive all other direct appeal rights. Understand?

Id. at pp. 17-18. Kennedy stated he understood this provision. Id. Judge Wood also stated that the proposed plea agreement contained a waiver of Kennedy's collateral attack rights. When asked if he understood that provision, Kennedy replied that he did and that he had no questions whatsoever about it. Id. at p. 18.

         Judge Wood asked Mr. Zeh and AUSA Bourne whether they were aware of any impropriety on the part of the Government in handling Kennedy's case, and they both responded no. Id. at p. 19. Judge Wood then asked Kennedy whether he wished to still plead guilty to the lesser included offense of Count One of the Superseding Indictment because he was in fact guilty of that count, and he answered in the affirmative. Id. Judge Wood also asked Kennedy whether he understood the rights and privileges he was waiving if she accepted his plea, and he said he did. Id. at pp. 19-20. Judge Wood determined Kennedy participated in the Rule 11 proceedings “knowingly” and “intelligently.” Id. at p. 20. Further, Judge Wood determined Kennedy's plea was “knowing” and “voluntary, ” and Kennedy agreed. Id.

         Robert Livingston, a special agent with the Drug Enforcement Administration (“DEA”) in Savannah, provided the Government's factual basis for the plea. Id. at pp. 21-22. Special Agent Livingston testified that, in addition to information gleaned from informants, the DEA's investigation of Kennedy included a wiretap on his personal phone and two controlled purchases of methamphetamine from him. Id. This investigation intercepted numerous telephone calls related to drug distribution and revealed a conspiracy to distribute methamphetamine, cocaine, and oxycodone in the Bacon County area. Id. Mr. Zeh had no questions for Special Agent Livingston on cross-examination. Id.

         After hearing from Kennedy again, during which time Kennedy agreed with the Government's factual basis and admitted the truth of Special Agent Livingston's testimony, Judge Wood accepted Kennedy's plea and adjudged him guilty of the lesser included offense of Count One of the Superseding Indictment-violation of Section 846. Id. at p. 23. Judge Wood advised Kennedy that the Probation Office would prepare a PSI and the Court would schedule a sentencing hearing after the PSI was disclosed to the Government and Mr. Zeh. Id.

         In the PSI, the Probation Officer attributed at least 1, 024.9 grams of “ice” methamphetamine to Kennedy, which indicated a base offense level of 34, pursuant to United States Sentencing Guidelines § 2D1.1. (PSI, ¶¶ 19, 25.) The Probation Officer increased the offense level by three, pursuant to United States Sentencing Guidelines § 3B1.1(b)(1), for his supervising role in the criminal conspiracy. (PSI, ¶ 28.) Kennedy did not receive a three point reduction under United States Sentencing Guidelines § 3E1.1 for accepting responsibility in a timely manner because the Probation Officer found that Kennedy falsely denied relevant conduct. (PSI, ¶¶ 23, 32.) The Probation Officer recommended that Kennedy's total offense level was 37. (PSI, ¶ 33). With a criminal history of nine and a two-point increase for committing the instant offense while under a criminal justice sentence, his criminal history fell within category VI. (PSI, ¶ 40-43.) With a total offense level of 37 and criminal history category of VI, Kennedy's recommended advisory Guidelines' range was imprisonment for 360 months to life. (PSI, ¶ 70.) However, because the statutory maximum term of imprisonment was 20 years, or 240 months, Kennedy's Guidelines range was reduced to match that maximum allowed sentence. (Id. (citing U.S.S.G. § 5G1.1(a).) Mr. Zeh filed objections to the PSI concerning the contents of nine (9) intercepted phone calls, the drug amount calculations, and the denial of an acceptance of responsibility reduction. (PSI, Addendum.)

         At the sentencing hearing, Judge Wood asked Kennedy whether he had the opportunity to read and review the PSI and its addendum with his attorney. Kennedy answered in the affirmative. Sent. Hr'g Tr., United States v. Kennedy, et al., 2:14-cr-12 (S.D. Ga. June 18, 2015), ECF No. 672, pp. 3-4. Mr. Zeh noted that Kennedy had a remaining objection to the PSI's characterization of one phone intercept, and that he had withdrawn the other phone call objections. Id. Kennedy asserted that what he really said in the challenged phone call was “cutie of that girl or gal” (referring to a quarter ounce of cocaine) rather than “kilo of that gas” (referring to methamphetamine).[1] Id. at p. 5.

         In response, Special Agent Livingston stated the Government had recorded 1, 907 pertinent phone calls related to drug dealing during its sixty-day wiretap of two of Kennedy's phones; the Government also conducted two controlled purchases of methamphetamine from Kennedy, each of those for approximately twelve grams. Id. at pp. 8-9. This investigation revealed Kennedy's drug dealings with over fifty people, some of whom were indicted and provided information about the amount of drugs Kennedy dealt. Id. at pp. 10-11. Special Agent Livingston testified that Kennedy was a high-volume drug trafficker based on the sheer number of transactions he took part in. Id. Special Agent Livingston then read the transcript of the challenged phone call aloud, and Mr. Bourne played the audio twice for Judge Wood. Id. at pp. 14-15. On cross-examination, Mr. Zeh pressed Special Agent Livingston on the probable meaning of “cutie of that gal” and about the Government informants against Kennedy. Id. at pp. 16-18.

         Judge Wood then overruled Kennedy's objection, finding that the preponderance of the evidence showed the conclusion in the PSI about this particular phone call to be correct.[2] Id. at pp. 22-23. However, Judge Wood sustained Kennedy's acceptance of responsibility objection and granted him a three-point reduction. Id. Judge Wood reviewed the advisory Guidelines and determined Kennedy's total offense level was 34 with a criminal history category of VI, which called for 240 months of imprisonment and three years' supervised release under the advisory Guidelines. Id. Judge Wood also noted that there was no statutory minimum sentence but there was a twenty-year maximum sentence. Id. Mr. Zeh did not call any witnesses on behalf of Kennedy. Id. AUSA Bourne testified that Kennedy was given an opportunity to cooperate for a downward departure but refused to do so and concluded that Kennedy's conduct was deserving of the 240 months' Guidelines sentence. Id. at p. 24. Kennedy then addressed the Court and apologized for his actions. Id. at p. 25.

         After hearing from Mr. Zeh, the AUSA, and Kennedy, and having reviewed the PSI and the sentencing factors of 18 U.S.C. § 3553, Judge Wood sentenced Kennedy to 240 months' imprisonment and three years' supervised release. Id. at pp. 25-26; J., United States v. Kennedy, et al., 2:14-cr-12 (S.D. Ga. Feb. 18, 2015), ECF No. 627. Judge Wood remarked that she saw no reason to depart from the guideline sentence called for in this case. Sent. Hr'g Tr., United States v. Kennedy, et al., 2:14-cr-12 (S.D. Ga. June 18, 2015), ECF No. 672, p. 26. In addition, Judge Wood recommended Kennedy be evaluated for possible participation in a substance abuse treatment program during his incarceration. Id. Moreover, Judge Wood reminded Kennedy of the appeal waiver provisions contained in his plea agreement during the sentencing hearing. Id.

         After his sentencing, Kennedy and Mr. Zeh executed a Post-Conviction Consultation Certificate, in which Mr. Zeh certified that he met with Kennedy, explained to Kennedy the appellate process and his rights, advised Kennedy of the advantages and disadvantages of filing an appeal, and asked whether Kennedy was interested in appealing his conviction. Notice, United States v. Kennedy, et al., 2:14-cr-12 (S.D. Ga. Feb. 19, 2015), ECF No. 623. After this consultation, Kennedy “decided to file an appeal, ” and instructed Mr. Zeh to file it for him. Id. Kennedy and Mr. Zeh signed this Notice. Id. Kennedy then filed a direct appeal of his conviction with the Eleventh Circuit Court of Appeals. Notice, United States v. Kennedy, et al., 2:14-cr-12 (S.D. Ga. Feb. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.