United States District Court, S.D. Georgia, Brunswick Division
ORDER AND MAGISTRATE JUDGE'S REPORT AND
STAN BAKER, UNITED STATES MAGISTRATE JUDGE
February 18, 2016, this Court sentenced Alan Eugene Addison
(“Addison”) to 110 months' imprisonment
following his guilty plea to conspiracy to possess with
intent to distribute controlled substances and to distribute
controlled substances. Addison, who is currently incarcerated
at the Federal Correctional Institution in Fort Dix, New
Jersey, has now filed a Motion to Vacate, Set Aside, or
Correct his Sentence pursuant to 28 U.S.C. § 2255. (Doc.
799.)Addison contends that errors by the Court
and his trial counsel plagued his guilty plea and sentence.
As laid out below, Addison's far-reaching claims lack
merit. Addison's sentence resulted from his own admitted
criminal conduct and extensive criminal history, not any
errors by the Court or his counsel.
these reasons, which I detail more fully below, I
RECOMMEND the Court DENY
Addison's Motion to Vacate, Set Aside, or Correct his
Sentence. Further, I RECOMMEND that the
Court DENY Addison a Certificate of
Appealability and in forma pauperis status on
appeal. The Court should DIRECT the Clerk of
Court to CLOSE this case and enter the
appropriate judgment of dismissal.
April 8, 2015, the grand jury for this District returned a
seven-count Indictment against Addison and seventeen
co-Defendants. (Doc. 3.) The grand jury charged Addison with
conspiracy to possess with intent to distribute, and to
distribute, a quantity of cocaine, in violation of 21 U.S.C.
§§ 841(a)(1) and (b)(1)(C) (Count 1).
(Id.) The Government asserted in its Penalty
Certification that Addison faced not more than twenty
years' imprisonment as to Count One. (Doc. 4.) At
Addison's initial appearance and arraignment, he was
notified that the maximum penalty he faced as to Count One
was twenty years' imprisonment. (Doc. 192.)
and his appointed attorney, Mr. Wallace E. Harrell, III, were
able to negotiate a plea agreement with the Government
whereby Addison agreed to plead guilty to Count One and to
waive his rights to appeal and collaterally attack his
sentence with limited exceptions. (Doc. 465.) Further, if
Addison decided to cooperate, he agreed to provide full and
truthful information to the Government. (Id.) In
exchange, the Government agreed to not object to a
recommendation from the probation officer that Addison
receive a three-level reduction for acceptance of
responsibility and to not file a 21 U.S.C. § 851
enhancement. (Id.) Additionally, the Government
agreed that, if Addison chose to cooperate, it would consider
whether Addison's cooperation with the Government
qualified as “substantial assistance” and
warranted the filing of a motion for downward departure.
7, 2015, Addison appeared before the Honorable Lisa Godbey
Wood for a change of plea, or Rule 11, proceeding. (Doc.
461.) At the hearing, Judge Wood engaged in an extensive plea
colloquy with Addison. She explained to Addison that the
decision to plead guilty was an important one, that the
decision was entirely his decision, and that she wanted to be
certain that Addison understood all of the important
considerations that go into the decision. (Doc. 803, pp.
2-3.) Judge Wood inquired whether anyone had forced Addison
to plead guilty, and he said no one had done so and that
pleading guilty was what he wanted to do. (Id. at p.
Wood had Addison placed under oath before asking him a series
of questions. (Id.) He was able to recount his
personal information, including his age, the ages of his
children, and his residence. (Id. at p. 4.) Addison
testified that he reached the twelfth grade and held a number
of jobs. (Id. at p. 5) Addison then stated that his
only physical or mental injury or disability was ligament
damage to his arm, and he affirmed that he was not currently
taking any medication. (Id. at pp. 5-6.)
Wood explained to Addison that he was presumed innocent and
the Indictment was not evidence of his guilt. (Id.
at p. 6.) She also explained 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, and the
assistance of counsel through every phase of the case.
(Id. at pp. 7-8.) Judge Wood told Addison that if he
went to trial he could see, hear, confront, and cross-examine
the Government's witnesses and evidence, call witnesses
on his behalf, and testify himself or remain silent.
(Id.) Judge Wood cautioned Addison he would be
waiving these rights if he pleaded guilty. (Id. at
p. 8.) She explained that, if she accepted his guilty plea,
there would be no right to trial of any kind, and that all
that would remain of his case would be the sentencing phase.
(Id.) Addison stated that he understood, and he
testified that he had no questions regarding the rights he
also stated he and Mr. Harrell reviewed the Indictment
together; that he had the opportunity to talk to Mr. Harrell
about the facts of his case, the underlying conduct, and the
proposed plea agreement; and that Mr. Harrell had discussed
the law and the facts pertaining to his case. (Id.
at pp. 8-9.) Addison specifically stated that he and Mr.
Harrell had discussed in general terms the application of the
Sentencing Guidelines. (Id. at p. 9.) Addison
testified that he was satisfied with Mr. Harrell's
services and that he had no complaints about Mr. Harrell
Wood reviewed Count One of the Indictment with Addison and
discussed the essential elements of the crimes for which he
was charged and what the Government would have to prove if he
went to trial. (Id. at pp. 9-11.) Addison responded
that he understood these elements and what the Government
would have to prove if he went to trial. (Id.) Judge
Wood advised Addison of the penalties she could impose on the
count to which he was pleading guilty. (Id. at pp.
11-13.) Pertinently, she stated, “Now the maximum
possible penalty that I could ever impose for a violation of
that particular statute is not more than 20 years[']
imprisonment, a fine of not more than a million dollars, at
least three years supervised release, and a $100.00 special
assessment. Do you understand those are the maximum possible
penalties that I could ever impose?” (Id. at
p. 11.) Addison responded that he understood. (Id.)
Moreover, Judge Wood explained to Addison 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, and she outlined the factors she
would consider at sentencing. (Id. at p. 12.) Judge
Wood asked Addison if he had any questions about sentencing,
and he responded that he did not. (Id.)
testified that no one had promised him an exact sentence.
(Id.) Judge Wood explained that all that anyone
could give him is a “best guess” or
“estimate” of what his Guidelines' range
would be, and that such an estimate would in no way bind the
Court. (Id. at p. 13.)
Wood affirmed with Addison that he had given Mr. Harrell
permission to negotiate a plea agreement with the Government.
(Id. at pp. 15-16.) She then asked the Assistant
United States Attorney (“AUSA”) to summarize the
provisions of the plea agreement. AUSA Greg Gilluly stated:
It is a[n] 11-page document, that plea agreement, and I will
summarize the material provisions there as follows.
The Government agrees to not object to a recommendation from
the probation officer that the defendant receive a
three-level reduction for acceptance of responsibility based
upon the timeliness of his guilty plea and provided that he
truthfully admits the conduct comprising the offense of
conviction and provided that he has complied with the terms
of pretrial release and has not engaged in any criminal
conduct subsequent to arrest or initial appearance in this
The Government agrees not to file an enhancement pursuant to
Title 21 United States Code Section 851 if applicable as to
the defendant. The Government agrees to consider whether the
defendant's cooperation with the Government qualifies as
substantial assistance and warrants the filing of a motion
for downward departure below any applicable guideline range
or mandatory minimum sentence or a motion to reduce sentence.
The defendant agrees to plead guilty to Count 1 of this
indictment. He agrees to acknowledge at the time of the plea
the truth of the factual basis that is contained within the
plea agreement. And he agrees to pay the mandatory special
assessment imposed by The Court on the date of sentencing.
The defendant, if he cooperates, will provide full, complete,
candid cooperation to the Government, and the Government in
his sole discretion will decide whether the cooperation
qualifies as substantial assistance that warrants the filing
for a downward departure or a reduction in sentence.
There is a waiver of appeal in this plea agreement. There is
also a waiver of collateral attack in this plea agreement
that I will leave to The Court.
(Id. at pp. 13-15.) Judge Wood asked Addison if AUSA
Gilluly's summarization of the plea agreement was
consistent with the plea agreement he signed, and he stated
it was. (Id. at p. 17.)
also stated he read the plea agreement, and Mr. Harrell
answered any questions Addison had before Addison signed the
agreement. (Id.) Addison reaffirmed that no one had
made him any promises regarding the outcome of his case other
than the provisions contained in the plea agreement.
Wood then specifically addressed the direct appeal waiver
with Addison, stating the following:
I want to pick back up on something that Mr. Gilluly
mentioned, and that is this plea agreement that you're
proposing does contain a waiver of certain appellate rights.
It states “Defendant entirely waivers his right to a
direct appeal of his conviction, and the defendant agrees to
waive his right to appeal his sentence.” There are
three exceptions to that waiver. That is, if and only if one
of these three things were to occur you would have a direct
Number 1, if I were to sentence you above the statutory
maximum, then you could appeal that directly. Number 2, if I
were to sentence you above the advisory guideline range as
found by me, then you could appeal that directly. Or Number
3, if the Government were to file a direct appeal, then you,
too, could file a direct appeal, but otherwise, by virtue of
the plea agreement, you waive all other direct appellate
(Id. at p. 16.) Addison stated he understood the
appeal waiver provision. (Id.)
Wood also explained that the proposed plea agreement
contained a waiver of certain of Addison's collateral
attack rights. She explained:
The agreement also contains a waiver of collateral attack
rights. It states “Defendant entirely waives his right
to collaterally attack his conviction and sentence on any
ground and by any method, including but not limited to a 28
USC Section 2255 motion.” The only exception to that
waiver is you do retain the right to collaterally attack your
conviction and sentence based on a claim of ineffective
assistance, but otherwise, by virtue of this plea agreement,
you waive all other collateral attack rights; do you
(Id. at pp. 16-17.) Addison replied that he
understood the collateral attack waiver provision and that he
did not have any questions about it. (Id. at p. 17.)
Wood asked Mr. Harrell and AUSA Gilluly whether they were
aware of any impropriety on the part of the Government in
handling Addison's case, and they both responded in the
negative. (Id. at p. 17.) Judge Wood then asked
Addison whether he wished to still plead guilty to Count One
if the Indictment because he was in fact guilty of that
count, and Addison answered in the affirmative.
(Id.) Judge Wood also asked Addison whether he
understood the rights and privileges he was waiving if she
accepted his plea, and he said he did. (Id.)
Wood determined that Addison's decision to plead guilty
was knowing, intelligent, and voluntary. (Id. at pp.
17-18.) She also found that he had the services of “a
competent [d]efense lawyer, who has gone over the facts and
the law, the plea agreement, the indictment, [and] the
sentencing guidelines.” (Id. at p. 18.)
Addison responded in agreement with Judge Wood's
Scott Sapp, a member of the Brunswick, Georgia, Police
Department assigned to the FBI Violent Crime Task Force,
provided the Government's factual basis for the plea.
(Id. at pp. 19-20.) Sapp testified that he
participated in an investigation of the Arron
Clark/Christopher Young drug trafficking organization.
(Id. at p. 19.) That investigation revealed that
Addison was a member of the conspiracy that was operating in
Brunswick, Georgia. (Id. at p. 19.) Sapp described
Addison's “role in particular[.]”
(Id. at p. 20.) Sapp testified that Addison was
“one of the sources of supply and supplied quantities
of cocaine to Arron Clark as well as Chris Young so that they
could redistribute cocaine to other members of the conspiracy
and users here in the Southern District of Georgia.”
(Id.) Mr. Harrell had no questions for Sapp on
questioning from Judge Wood, Addison testified that he did
not dispute any of the testimony given by Sapp, and he
admitted to the truth of Sapp's testimony. (Id.
at pp. 20-21.) Judge Wood found that there was a factual
basis for the plea of guilty, accepted Addison's plea,
and adjudged him guilty of Count One of the Indictment.
(Id. at p. 21.) Judge Wood advised Addison that the
Probation Office would prepare a Pre-Sentence Investigation
report (“PSI”), and the Court would schedule a
sentencing hearing after the PSI was disclosed to the
Government and the defense. (Id.)
to Addison's sentencing hearing, United States Probation
Officer Ernest J. Orlando prepared a PSI. Probation Officer
Orlando detailed Addison's offense conduct and criminal
history and calculated Addison's advisory Guidelines'
range. Probation Officer Orlando detailed Addison's
involvement in the Clark Drug Trafficking Organization
(“DTO”). (PSI, ¶¶ 4-14.) Probation
Officer Orlando explained that the investigation of the
organization involved numerous investigative techniques,
including the collection of pen register data and the
monitoring of telephone communications. (Id. at
¶¶ 4-6.) The telephone calls and text messages
between Clark and Addison revealed several instances from
November 8 through December 3, 2014, where Addison supplied
Clark with cocaine. (Id. at ¶¶ 7-13.)
Based on the amount of drugs Addison and Clark discussed
during those communications, Probation Officer Orlando
“conservatively” attributed 254.61 grams of
cocaine hydrochloride to Addison. (Id. at ¶
14.) Probation Officer Orlando noted that “the wire
intercept was in place 30 days; however, the preponderance of
the evidence supports the conclusion that Addison was
involved with the DTO for a much longer period.”
Probation Officer Orlando used the “conservative”
amount of 254.61 grams to calculate Addison's
Guidelines' range. (Id. at ¶ 20.) Probation
Officer Orlando explained that, under U.S.S.G. § 2D1.1,
an offense that involves more than 200 grams but less than
300 grams of cocaine has a base offense level of 18.
(Id.) However, because Addison was at least eighteen
(18) years old at the time of the instant offense, the
instant offense was a controlled substance offense, and
Addison had at least two prior convictions for either a crime
of violence or a controlled substance offense, he qualified
as a career offender under U.S.S.G. § 4B1.1.
(Id. at ¶ 26.) Under Section 4B1.1(b)(2),
because Addison's maximum statutory penalty was twenty
(20) years, his base offense level was 32. Addison's
offense was reduced by three points due to his acceptance of
responsibility for a total offense level of 29. (Id.
at ¶¶ 27, 28.)
Probation Officer detailed Addison's extensive list of
adult criminal convictions. (Id. at ¶¶
31-49.) Pertinently, Probation Officer Orlando detailed a
1989 conviction for sale of cocaine, (id. at ¶
31); a 2001 conviction for possession of cocaine with intent
to distribute, (id. at ¶ 45); and a 2003
conviction for possession of cocaine with intent to
distribute, (id. at ¶ 46). Because Addison was
a career offender, his criminal history category was VI.
(Id. at ¶ 50.) Probation Officer Orlando stated
that Addison's statutory maximum term of imprisonment was
twenty years. (Id. at ¶ 78.) According to the
PSI, Addison's Guidelines' range for imprisonment was
151 to 188 months. (Id. at ¶ 79.) Officer
Orlando identified Addison's substantial assistance to
authorities as a factor that may warrant departure from the
Guidelines' range under Section 5K1.1. (Id. at
to Addison's sentencing hearing, the Government filed a
motion for downward departure requesting that the Court
sentence Addison below the Guidelines' range due to his
substantial assistance in the investigation and prosecution
of others. (Doc. 689.) The Government explained that Addison
was one of the first defendants to plead guilty and to
cooperate. (Id.) In support of its request that the
Court give Addison a lower sentence, the Government
specifically cited Addison's provision of historical
information concerning the quantity of drugs Addison provided
to Arron Clark. (Id.)
appeared before Judge Wood for a sentencing hearing on
February 18, 2016. (Doc. 694.) At that hearing, Judge Wood
heard from Addison, Addison's counsel, and counsel for
the Government regarding Addison' potential sentence.
(Doc. 802.) This colloquy began by Judge Wood asking Addison
if he had an opportunity to read the PSI and discuss it with
Mr. Harrell. (Id. at pp. 2-3.) Mr. Addison responded
that he had. (Id. at p. 3.) Mr. Harrell then
confirmed that there were no objections to either the factual
accuracy of the PSI or the Probation Officer's
application of the Guidelines. (Id.) There being no
objections from the Government or Addison, Judge Wood adopted
the PSI's findings of fact and conclusions regarding the
advisory Guidelines' range. (Id.) In accordance
with the PSI, Judge Wood determined that Addison's
offense level was twenty-nine, and his criminal history
category was six. (Id.) Thus, the Guidelines called
for a sentence between 151 to 188 months in prison.
Wood then heard from the Government regarding its Section 5K
motion for a downward departure due to Addison's
substantial assistance to authorities. (Id. at pp.
3-5.) AUSA Charlie Bourne explained that Addison testified
before the grand jury and that he was truthful and forthright
with regard to his role in the conspiracy. (Id.)
AUSA Bourne explained that Addison first directly supplied
powder cocaine to Arron Clark and then later provided it
indirectly through Beverly Tyson. (Id.) AUSA Bourne
explained that Addison stopped dealing with Clark directly,
because Addison was aware of Clark's gang's
reputation for violence. (Id.) AUSA Bourne stated
that Clark was one of the earliest Defendants to cooperate
and that his cooperation was significant and warranted a
downward departure. (Id.)
Harrell called Addison's brother, Ethan Troy Addison, to
testify on Addison's behalf. (Id. at pp. 6-9.)
Ethan explained that Addison had made positive changes in his
life beginning in the year 2004, and that the incidents
giving rise to his charges before the Court were due to a
“relapse” after their father passed away in the
year 2013. (Id. at pp. 6-8.) Upon questioning from
Mr. Harrell, Ethan further testified that Addison had
numerous family members who would support him following his
sentence and that he had never been involved in any gang
activity. (Id. at pp. 8-9.) Mr. Harrell then offered
arguments in mitigation of sentence, including Addison's
battle with addiction, his contrition, and the fact that he
was not involved in any gang or violent activity.
(Id. at pp. 10-11.) AUSA Bourne then addressed the
Court and stated:
I just want to reiterate what a favorable offer and
acceptance and deal that Mr. Harrell got for Mr. Addison
because, absent this deal, the Government would be seeking a
maximum punishment of 20 years given this defendant's
criminal history, but because Mr. Harrell and Mr. Addison
came to the decision of pleading and cooperating, he got the
three levels off for acceptance. We filed a pretty strong 5K
motion and he's looking at a potentially much more
lenient sentence than what we would be asking for.
I ask The Court to weigh his atrocious criminal history
against the fact that he did cooperate and was one of the few
against this violent gang and we have no evidence of any
violence on his part.
(Id. at p. 11.) Addison then addressed the Court and
stated the following:
First, I would like to apologize to the family and The Court
for having me here again, to my family for letting them down,
for failing them as a son, a father, brother and as a
I am truly sorry and not only have I affected my family and
friends, I affected the community by not being a responsible
law-abiding man I should have been-I should have been-I
should have been.
I have made several mistakes in my life, and I truly want to
apologize to youall. Nobody deserves what I put onto them.
Yes, Your Honor, I have made a lot of mistakes and I truly
regret every one of them. I have an addiction to marijuana
and cocaine. I made people think I was somebody else to
support my habit. My addiction is a disease that needs help.
Yes, Your Honor, I need help, and I am asking you for help.
My addiction has really ruined my life, and I pray every
night and morning that my higher power don't let my kids
follow in my footsteps.
I pray the life-I pray the life that they seen me go through
that they don't want to walk in it. I started using drugs
at an early age, drinking and smoking marijuana. Then I
started using cocaine. Cocaine took me to another level in my
I ran off with people's money to support my habit.
I've gotten people money and brought them back fake drugs
just to support my high. I have been shot and robbed in front
of my kids but my addiction wouldn't let me stop. I let
the drugs take over my life. I was addicted to a disease that
I couldn't cure and that is what brought me in front of
you today, Your Honor.
Yes, I admit that I do have a serious problem with the use of
drugs. I truly do need help and I want to get help. I want to