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Addison v. United States

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

February 21, 2018

ALAN EUGENE ADDISON, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER AND MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          R. STAN BAKER, UNITED STATES MAGISTRATE JUDGE

         On 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.)[1]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.

         For 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.[2]

         BACKGROUND

         On 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.)

         Addison 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. (Id.)

         On July 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. 3.)

         Judge 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.)

         Judge 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 was waiving.

         Addison 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 whatsoever. (Id.)

         Judge 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.)

         Addison 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.)

         Judge 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 matter.
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.)

         Addison 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. (Id.)

         Judge 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 appeal right.
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 rights; understand?

(Id. at p. 16.) Addison stated he understood the appeal waiver provision. (Id.)

         Judge 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 understand?

(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.)

         Judge 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.)

         Judge 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 conclusions. (Id.)

         Michael 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 cross-examination. (Id.)

         Upon 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.)

         Prior 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.” (Id.)

         Nonetheless, 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.[3] 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.)

         The 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 ¶ 93.)

         Prior 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.)

         Addison 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. (Id.)

         Judge 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.)

         Mr. 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 husband-to-be.
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 you[]all. 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 life.
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 be ...

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