United States District Court, S.D. Georgia, Augusta Division
MAGISTRATE JUDGE'S REPORT AND
K. EFPS, UNI LED STALES MAGISTRATE JUDGE.
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.
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.
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.
Agreement to Plead Guilty
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.
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.
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.
Plea Agreement contained the following factual basis for his
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
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.
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.
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.
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.
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.
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.
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.
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.
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
Therefore, [Petitioner's] plea is accepted, and I now
adjudge him guilty of Count 1 of the indictment based upon
Id. at 25.