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Flowers v. United States

United States District Court, N.D. Georgia, Gainesville Division

February 13, 2019

WALTER XAVIER FLOWERS, BOP Reg. # 70094-019, Movant,
v.
UNITED STATES, Respondent.

         MOTION TO VACATE 28 U.S.C. § 2255

          MAGISTRATE JUDGE'S FINAL REPORT AND RECOMMENDATION

          J. Clay Fuller United States Magistrate Judge.

         Movant, a federal prisoner, has filed a 28 U.S.C. § 2255 motion to vacate the consecutive 60-month sentence he received on September 21, 2017, after the entry of his guilty plea in this Court, for violating 18 U.S.C. § 924(c) by possessing a firearm during a drug trafficking crime. (Doc. 407; see Doc. 393). Movant does not challenge his 16-month sentence for the drug trafficking crime itself, conspiracy to possess with intent to distribute methamphetamine. (Doc. 407).

         I. Background

         The government provides the following factual background, gleaned from Movant's Pre-Sentence Report (“PSR”), to which Movant did not object:

On February 11, 2016, MANS [Multi Agency Narcotics Squad] agents received information from an informant that defendant would be at a certain location to sell methamphetamine and that he would be driving a particular vehicle. (PSR ¶ 34). Agents responded to the location and observed defendant's vehicle arrive. (Id.). They walked up to the car and saw a bag of methamphetamine sitting on the seat. (Id.). Defendant was arrested and his vehicle was searched. (PSR ¶¶ 34-35). In the vehicle the agents located 1.3 ounces of methamphetamine in a plastic bag on the seat, four ounces of methamphetamine in a tupperware container under the driver's seat, a Glock 19, 9 mm caliber handgun, and a Glock 21, 45 caliber handgun. Defendant admitted possessing the drugs and firearms in his vehicle. (PSR ¶ 37).
Defendant also admitted that he had more methamphetamine at his house. (Id.). Defendant gave consent to search his residence. (Id.). During the search the agents found about nine ounces of methamphetamine in a bowl in the kitchen, about seven ounces of methamphetamine in another location, an Iver Johnson, .32 caliber pistol, a Stevens Model 200, .270 caliber rifle with scope, a Hi-Point Firearms Model 995, 9 mm rifle, and a Savage Arms, 12 gauge shotgun. (PSR ¶¶ 37-38).
Defendant admitted that he had been involved in a conspiracy to possess with intent to distribute and to distribute methamphetamine with others named in the superseding indictment. (PSR ¶¶ 40-41).

(Doc. 417 at 2-3 (footnote omitted)).

         At his plea hearing, Movant acknowledged the following:

1. he understood the rights he was waiving by pleading guilty (Doc. 424 at 6-8);
2. neither any promise, other than those contained in his plea agreement, nor any threat had induced Movant to plead guilty (id. at 13);
3. he understood what the government would have to prove to convict him of the charges against him, including that to convict him of the firearm charge the government “would have to establish that the defendant committed the drug trafficking crime . . .; secondly, that during the commission of the offense the defendant used or carried or possessed a firearm; and third, the defendant used the firearm in relation to, or possessed it in furtherance of the drug trafficking crime” (id. at 14);
4. the government's recitation of the facts underlying Movant's charges, as set forth in the PSR and summarized above, were accurate (id. at 15-18);
5. he had committed the crimes charged against him, which included his admission “that [he] had the methamphetamine . . . [and] the gun[s, which he possessed] in connection with the ...

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