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Hunter v. United States

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

February 8, 2019

CHRISTOPHER SHELTON HUNTER, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          BRIAN K. EFPS, UNI LED STALES MAGISTRATE JUDGE.

         Petitioner, an inmate at the Federal Correctional Institution in Fort Worth, Texas, 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 July 6, 2016, the grand jury in the Southern District of Georgia charged Petitioner and three co-defendants in a sixteen-count indictment. United States v. Hunter, CR 116-045, doc. no. 3 (S.D. Ga. July 6, 2016) (hereinafter “CR 116-045”). Along with naming Petitioner in a forfeiture allegation, the grand jury charged Petitioner in five counts: conspiracy to distribute and possess with intent to distribute marijuana, cocaine, and cocaine base (Count One); possession with intent to distribute marijuana (Counts Seven and Ten); possession of a firearm in furtherance of a drug trafficking crime (Count Eleven); and possession of a firearm by a convicted felon (Count Fourteen). Id. Prior to the federal indictment, Petitioner had twice been arrested on state charges related to the eventual federal charges brought against him, and after both state arrests, he posted a bond and was released. Presentence Investigation Report (“PSI”) ¶ 5, 14, 16.

         As originally charged, Petitioner faced a statutory sentence of not more than twenty years imprisonment on Count One, not more than five years imprisonment on each of Counts Seven and Ten, and not more than ten years imprisonment on Count Fourteen. CR 116-045, doc. no. 4. As to Count Eleven, Petitioner faced a sentence not less than five years and up to life imprisonment, consecutive to any other sentence. Id. The Court appointed attorney Kenneth Crowder under the Criminal Justice Act to represent Petitioner. Id., doc. no. 23.

         B. Agreement to Plead Guilty

         On February 15, 2017, Petitioner appeared with counsel and pled guilty to the conspiracy charged in Count One. Id., doc. nos. 41, 45-47. Two of Petitioner's co-defendants also pleaded guilty in federal court to the conspiracy charged in Count One. Id., doc. nos. 119, 157. The federal charges against the third co-defendant were dismissed based on the entry of a guilty plea to charges at the state level related to the federal charges. Id., doc. no. 36.

         In the plea agreement, the government and Petitioner agreed to recommend to the United States Probation Office and the Court at sentencing that, for purposes of calculating the base offense level under § 2D1.1 of the advisory Sentencing Guidelines, the offense involved at least 400 kilograms but less than 700 kilograms of marijuana. Id., doc. no. 47, (“Plea Agreement”), p. 4. Notably, the Plea Agreement specifically explained the Sentencing Guidelines are advisory and “are based on all of Defendant's relevant conduct, pursuant to U.S.S.G. § 1B1.3, not just the facts underlying the particular Count to which Defendant is pleading guilty.” Id. at 3. The Plea Agreement also stated, “The government is free to provide full and accurate information to the Court and U.S. Probation Office for use in calculating the applicable Sentencing Guidelines range.” Id. at 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:

The elements necessary to prove the offense charged in Count One are (1) that the Defendant conspired or agreed with another person, to try to accomplish a common and unlawful plan, as charged, (2) that, knowing the unlawful purpose of the plan, the Defendant willfully joined in it; and (3) that the object of the unlawful plan was to distribute or possess with intent to distribute marijuana.
Defendant agrees that he is, in fact, guilty of the offense charged in Count One. He agrees to the accuracy of the following facts, which satisfy each of the offense's required elements: That beginning on or before June 2015, the exact beginning date being unknown to the Grand Jury, and continuing until the return of this indictment, in Richmond County in the Southern District of Georgia and elsewhere, the defendant CHRISTOPHER SHELTON HUNTER aka “STANK” did knowingly and intentionally combine, conspire, confederate, and agree together with others known and unknown, to commit certain offenses against the United States, that is, to distribute and to possess with intent to distribute marijuana, Schedule I, in violation of Title 21, United States Code, Sections 841(a)(1), 841(b)(1)(C) and 846.

Id. at 1-2. With his signature on the Plea Agreement, Petitioner agreed he read and carefully reviewed it with Mr. Crowder, understood each provision, voluntarily agreed to it, and “stipulate[d] that the factual basis set out therein is true and accurate in every respect.” Id. at 11

         By signing the Plea Agreement, Petitioner also agreed to forfeit any interest in firearms or ammunition involved or used in the knowing commission of the conspiracy in Count One to which he agreed to plead guilty, “specifically a Smith and Wesson, .40 caliber pistol, serial number DUX4614, and ammunition found with said firearm.” Id. at 5. Petitioner further agreed to “entirely waive[] 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 6-7. 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 7. By signing the Plea Agreement, Petitioner additionally attested Mr. Crowder 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 8.

         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. 137 (“Rule 11 Tr.”), pp. 4, 7. Judge Hall reviewed all the charges against Petitioner in the indictment. Id. at 7-8. Petitioner confirmed he had as much time as he needed to go over the charges with Mr. Crowder. Id. at 8-9. Petitioner also testified under oath he was satisfied with the assistance he had received from Mr. Crowder and that he had read and reviewed the Plea Agreement with counsel before signing it. Id. at 9, 11.

         Judge Hall also explained the rights Petitioner would be waiving by pleading guilty, and Petitioner affirmed he clearly understood those rights. Id. at 9-11. 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 12-13. 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 13.

         Judge Hall reviewed the conspiracy offense to which Petitioner was pleading, as well as Petitioner's agreement to forfeit his interest “in property used or intended to be used to facilitate the commission of this crime, including but not limited to a Smith & Wesson 40-caliber pistol, Serial Number DUX4614, and the ammunition found with that firearm.” Id. at 12. Judge Hall also confirmed Petitioner had agreed with the government on the drug quantity to be recommended for purposes of sentencing: at least 400 kilograms of marijuana but fewer than 700 kilograms of marijuana. Id. Additionally, Judge Hall reviewed the potential for a twenty-year term of imprisonment for conviction on the conspiracy charge. Id. at 13. When asked, Petitioner confirmed that he understood the possible imprisonment penalty, as well as the potential $1 million fine and three years of supervised release after completion of the term of imprisonment. Id. at 13-14.

         Judge Hall further explained that upon entry of the guilty plea, he would order the preparation of a PSI, and Petitioner's sentence would be based on the information in the PSI. Id. at 15-16. 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 16. 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 16.

         After reviewing the elements of conspiracy the government would have to prove if Petitioner went to trial and confirming Petitioner sold marijuana only as part of the charged conspiracy, Judge Hall next heard a factual basis for the guilty plea from Investigator Brad Capitosti with the Narcotics Division of the Richmond County Sheriff's Office. Id. at 17-23. Inv. Capitosti testified that in June 2015, law enforcement was conducting an undercover drug investigation in the Sand Hills Community Center and Ridgewood apartment complex, as well as an independent investigation of Petitioner. Id. at 19, 20. During the execution of a search warrant on June 16, 2015, at a residence associated with Petitioner, officers found approximately one pound of marijuana, a 40-caliber Smith & Wesson pistol, and $19, 921. Id. at 19. Although Inv. Capitosti testified the search occurred at Petitioner's residence, Defendant later clarified to Judge Hall the search was conducted at his girlfriend's residence. Id. at 19, 23-24.

         Petitioner and others were identified as the primary individuals responsible for distributing illegal narcotics at the Ridgewood apartment complex. Id. at 20. Officers observed Petitioner, almost on a daily basis, arriving at the complex in a blue Lexus and usually carrying a black duffle bag sources indicated contained marijuana. Id. In February and March 2016, intercepted wireless conversations connected Petitioner to his co-defendants and identified the potential drug supply. Id. at 20-21. After the execution of various search warrants and interviews with cooperating sources, officers were able to determine Petitioner was commonly known to traffic in large amounts of marijuana, and they recovered drug-related items, including marijuana and cash, from Petitioner's residence and an apartment in the Ridgewood apartment complex Petitioner was known to frequent. Id. at 21-22.

         Other than clarifying the first search Inv. Capitosti described had occurred at his girlfriend's residence, Petitioner had no disagreement with anything presented in the factual basis for the guilty plea, and he admitted his participation in the conspiracy charged in the indictment. Id. at 23-24. Petitioner also told Judge Hall he was guilty of, and wanted to plead guilty to, Count One of the indictment. Id.

         Judge Hall then summarized the proceedings as follows:

With the entry of the signed plea into the record of this hearing, this Court finds that the [Petitioner], Mr. Hunter, is competent. He fully understands the charge against him. There is an independent factual basis supporting his plea of guilty containing each of the essential elements of this offense. He knows the statutory 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 made by the Government in the plea agreement.
Therefore, [Petitioner's] plea is accepted, and I now adjudge him guilty of Count 1 of the indictment based upon that plea.

Id. at 25.

         C. ...


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