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Carter v. United States

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

April 16, 2018

MELVIN CHRISTOPHER CARTER, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          BRIAN K. EPPS UNIIED STATES MAGISTRATE JUDGE

         Petitioner Melvin Christopher Carter filed a motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. The Court REPORTS and RECOMMENDS the § 2255 motion be DENIED without an evidentiary hearing, this civil action be CLOSED, and a final judgment be ENTERED in favor of Respondent.

         I. BACKGROUND

         A. Indictment

         On May 9, 2012, the grand jury in the Southern District of Georgia charged Petitioner and two co-defendants in a nineteen-count indictment alleging marijuana distribution and money laundering conspiracies. United States v. Carter, CR 112-176, doc. no. 1 (S.D. Ga. May 9, 2012) (hereinafter “CR 112-176”). On June 6, 2012, the grand jury returned a twenty-five count superseding indictment adding a third defendant and again charging Petitioner in seven counts with distribution and money laundering conspiracies “[b]eginning in or about May 2011.” Id., doc. no. 26. Petitioner faced a possible sentence of five years' imprisonment on each of three drug conspiracy-related charges in Counts One, Two, and Three; twenty years on each of two money-laundering charges in Counts Ten and Eleven; and four years on each of two charges concerning use of communication facility to facilitate a felony in Counts Sixteen and Seventeen.

         At the time of his indictment, Petitioner was on supervised release in another drug-related case, United States v. Carter, CR 102-006 (S.D. Ga. Feb. 11, 2002) (hereinafter “CR 102-006”). Petitioner absconded from supervision and was arrested on December 13, 2016, in Mexico on the warrant issued for the indictment. The Court appointed attorney Keith Johnson to represent Petitioner. CR 112-076, doc. no. 172.

         B. Agreement to Plead Guilty

         A jury trial originally scheduled for February was continued until March 20, 2017. Id., doc. nos. 187-91. On March 7, 2017, Petitioner signed a plea agreement. Id., doc. nos. 193, 197. On March 17, 2017, Petitioner pleaded guilty to the marijuana distribution conspiracy charge in Count One and the money laundering conspiracy charge in Count Ten. Id., doc. no. 195-97. In exchange, the government agreed to dismiss all remaining counts, 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. Id., doc. no. 197, (Plea Agreement), pp. 5-6.

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

[B]eginning in or about May 2011, the exact beginning date being unknown to the Grand Jury, and continuing until the date of the return of the Indictment in the above-styled case, in Richmond County, within the Southern District of Georgia, and within the Southern District of California, MELVIN C. CARTER, did knowingly and intentionally combine, conspire, confederate, and agree with others, including LAVON A. SEAWOOD, HASAN A. DIXON, and ANTWUAN B. DENT, and with other unknown persons, to commit certain offenses against the United States, that is, to distribute and possess with intent to distribute a quantity of marijuana, a Schedule I controlled substance. . . . (Count One).
. . .
[B]eginning in or about May 2011, the exact beginning date being unknown to the Grand Jury, and continuing until the date of the return of the Indictment in the above-styled case, in Richmond County, within the Southern District of Georgia, and within the Southern District of California, MELVIN C. CARTER, did knowingly and intentionally combine, conspire, confederate, and agree with others, including LAVON A. SEAWOOD, HASAN A. DIXON, and with other unknown persons, to knowingly engage and attempt to engage in monetary transactions affecting interstate and foreign commerce, which involved criminally derived property from specified unlawful activities described in Counts One through Five of the Indictment, knowing that the transactions were designed in whole and in part to conceal and disguise the nature, ownership, control, and source of the proceeds of said specified unlawful activities, and knowing that the transactions were conducted in a manner to avoid the transaction reporting under State or Federal law, and while conducting and attempting to conduct such financial transactions, knew that the property involved in the transactions represented the proceeds of some form of unlawful activity. . . . (Count Ten).

Id. at 2-3.

         By signing the Plea Agreement, Petitioner “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 8. Absent one of those three conditions, “[Petitioner] explicitly and irrevocably instruct[ed] his attorney not to file an appeal.” Id. By signing the Plea Agreement, Petitioner additionally attested he “read and carefully reviewed this agreement” with Mr. Johnson and “that his attorney has represented him faithfully, skillfully, and diligently, and [Petitioner] is completely satisfied with the legal advice given and the work performed by his attorney.” Id. at 10, 12.

         At the change of plea, United States District Judge Dudley H. Bowen, Jr., found Petitioner was competent to enter a guilty plea if he so desired. Id., doc. no. 217, (Rule 11 Tr.), pp. 3-4. Petitioner testified under oath he had sufficient time to discuss his case with Mr. Johnson and was satisfied with counsel's preparation and handling of the case. Id. at 4-5. Judge Bowen reviewed the drug conspiracy and money laundering charges to which Petitioner was pleading guilty and the maximum prison terms of five and twenty years, respectively. Id. at 5-8.

         Judge Bowen explained the rights Petitioner would be waiving by pleading guilty, and Petitioner affirmed he clearly understood those rights. Among the list of rights explained, Judge Bowen 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. at 8-9. Petitioner confirmed no one had forced, threatened, or pressured him into pleading guilty. Id. at 11. In addition, Judge Bowen reviewed the appeal waiver and its limited exceptions, as well as the collateral attack waiver. Id. at 12-13. Further, Judge Bowen confirmed that, other than the promises the government made in the plea agreement, no one had made him any promises in order to get him to plead guilty; Petitioner affirmed that no one had given him any guarantee, prediction, or prophecy as to the sentence that would be imposed. Id. at 13.

         Next, Judge Bowen heard a factual basis for the guilty plea from Special Agent Ronald Rhodes with the Bureau of Alcohol, Tobacco, and Firearms. SA Rhodes described Petitioner's involvement with co-defendant Seawood in mailing drugs from California to Augusta and cash back to California. Id. at 14-16. SA Rhodes also described tracking money orders structured to stay below the $3, 000 government reporting threshold. Id. at 16- 17. Petitioner agreed with SA Rhodes and confirmed he was guilty of, and wanted to plead to, Counts One and Ten. Id. at 18.

         C. Sentencing

         The United States Probation Office prepared a Presentence Investigation Report (“PSI”) setting Petitioner's Total Offense Level at seventeen, Criminal History Category at VI, and Guidelines imprisonment range at 51 to 63 months. PSI ¶¶ 49, 62, 91. Because Petitioner had two prior controlled substance convictions and was thus a career offender under U.S.S.G. § 4B1.1, his offense level was twenty, reduced by three for acceptance of responsibility. PSI ¶¶ 45-49. The statutory maximum term of imprisonment for Count One was five years, and twenty years for Count Ten. 21 U.S.C. §§ 846 & 841(b)(1)(D); 18 U.S.C. §§ 1956(a)(1)(B)(i) & (h); PSI ¶ 90.

         Judge Bowen held Petitioner's sentencing for CR 112-176, as well as the revocation for CR 102-006, on August 9, 2017. CR 112-176, doc. no. 218 (Sent. Tr.). Judge Bowen confirmed Petitioner read and discussed the PSI with Mr. Johnson. Id. at 2. Petitioner did not object to the PSI concerning his prior criminal history and career offender designation under the Guidelines, and Judge Bowen adopted the factual statements of the PSI as his own findings of fact. Id. at 2-3. Mr. Johnson offered arguments in mitigation, noting Petitioner's family situation, age, acceptance of responsibility and comparable sentences of Petitioner's co-defendants. Id. at 3-4, 6-7. Mr. Johnson further requested Judge Bowen take into consideration Petitioner barely fell inside the fifteen-year window to qualify for career offender status. Id. at 4. Petitioner apologized for re-offending. Id. at 5-6.

         Judge Bowen noted Petitioner's long criminal history dating back to 1990, his history of violations while on supervised release, and his receipt of a “crack reduction” on a prior sentence. Id. at 10. Judge Bowen explained the difference in Petitioner's sentence as compared with his co-defendants was the result of a correct application of the Guidelines driven by Petitioner's flight from prosecution and multiple brushes with the law. Id. at 10-11. Judge Bowen imposed a sentence of sixty months' imprisonment on each count to which Petitioner pleaded guilty, to be served concurrently. Id. at 11. In keeping with the terms of the Plea Agreement, Petitioner did not file a direct appeal regarding CR 112-176. Judge Bowen imposed a thirty-six month sentence in the revocation proceedings to be served consecutively to the sixty-month sentence. Id. at 21; CR 112-176, doc. no. 209; CR 102-006, doc. no. 39.

         D. § 2255 Proceedings

         Petitioner timely filed the instant § 2255 motion to vacate, set aside, or correct his sentence, raising the following claims:

(1) Counsel provided ineffective assistance in the pretrial phase of the case when he failed to:
(a) communicate with Petitioner and inform him of the relevant circumstances and likely consequences of pleading guilty as opposed to proceeding to trial;
(b) conduct an adequate and independent pretrial ...

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