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Blount v. United States

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

May 3, 2019

REGINALD EMMIT BLOUNT, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          BRIAN K. EPPS, UNITED STATES MAGISTRATE JUDGE

         Petitioner, an inmate at the Federal Correctional Institution in Edgefield, South Carolina, 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 motion to withdraw Ground One be GRANTED, (doc. no. 26), Ground Two be DENIED, this civil action be CLOSED, and a final judgment be ENTERED in favor of Respondent.

         I. BACKGROUND

         A. Indictment and Pretrial Proceedings

         On July 6, 2016, the grand jury in the Southern District of Georgia charged Petitioner in a four-count indictment. United States v. Blount, CR 116-042, doc. no. 1 (S.D. Ga. July 6, 2016) (hereinafter “CR 116-042”). Along with naming Petitioner in a forfeiture allegation, the grand jury charged Petitioner with: possession with intent to distribute marijuana and oxycodone (Counts One and Two), possession of firearms in furtherance of drug trafficking crimes (Count Three), and possession of firearms and ammunition by a convicted felon (Count Four). Id. Count One carried a possible statutory sentence of not more than five years, or not more than ten years if convicted of a previous felony offense. Id., doc. no. 2. Count Two carried a possible term of imprisonment of not more than twenty years, and Count Three carried a possible term of not less than five years and up to life imprisonment consecutive to any other sentence. Id. As to Count Four, Petitioner faced a prison sentence of not more than ten years, or if deemed to be an armed career criminal under 18 U.S.C. § 924(e), not less than fifteen years or more than life imprisonment.

         Petitioner retained attorney Tanya Jeffords to represent him. Id., doc. no. 9. Ms. Jeffords filed thirty-one pretrial motions, (id., doc. nos. 8, 10-12, 14-38, 40, 45), including a preliminary motion to suppress and a motion for an extension of time to particularize the suppression motion, (id., doc. nos. 38, 45). In requesting the extension of time to particularize the motion to suppress, Ms. Jeffords explained the parties were in the process of working on a possible resolution of the case. (Doc. no. 45, p. 1.) The Court granted an extension of time, (doc. no. 46), but no additional motions were filed. The Court received the plea agreement on September 26, 2016, and a change of plea notice entered September 30, 2016. (Doc. no. 48.)

         B. Agreement to Plead Guilty

         On October 12, 2016, Petitioner appeared with counsel and pled guilty to possession of firearms and ammunition by a convicted felon as charged in Count Four. Id., doc. nos. 49-51. 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., doc. no. 51, pp. 3-4.

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

The elements necessary to prove the offense charged in Count Four are: (1) that the Defendant knowingly possessed a firearm in or affecting interstate commerce; and (2) before possessing the firearm, the Defendant had been convicted of a felony - a crime punishable by imprisonment for more than one year.
Defendant agrees that he is, in fact, guilty of this offense. He agrees to the accuracy of the following facts, which satisfy each of the offense's required elements: that on or about May 5, 2016, in Richmond County in the Southern District of Georgia, the Defendant, who before that time had been convicted of one or more felonies, crimes punishable by imprisonment for a term exceeding one year, those are,
Attempted Robbery, convicted on September 1, 2010, in the Superior Court of Richmond County, Georgia, No. 2009RCCR01744; and,
Possession of Marijuana, convicted on December 11, 2013 in the Superior Court of Richmond County, Georgia, No. 2013RCCR00820.
did knowingly possess, in and affecting commerce, firearms and ammunition, those are, a Glock, Model 23, .40 caliber, serial number PTC102 and a Sig Sauer, Model P220, a .45 caliber, serial number 37A012089; and eighty-three live rounds of assorted ammunition, all of which previously had been shipped or transported in interstate or foreign commerce; all done in violation of Title 18, United States Code, Sections 922(g)(1) and 924(a)(2).

Id. at 1-2. With his signature on the Plea Agreement, Petitioner agreed he read and carefully reviewed it with Ms. Jeffords, 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 10.

         By signing the Plea Agreement, 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 Ms. Jeffords 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. 74 (“Rule 11 Tr.”), pp. 3, 6. Judge Hall reviewed all the charges against Petitioner in the indictment, with specific focus on the charge in Count Four to which Petitioner was pleading guilty. Id. at 6-7. Petitioner confirmed he had as much time as he needed to go over the charges with Ms. Jeffords. Id. at 7. Petitioner also testified under oath he was satisfied with the assistance he had received from Ms. Jeffords and that he had read and reviewed the Plea Agreement with counsel before signing it. Id. at 8, 10.

         Judge Hall also explained the rights Petitioner would be waiving by pleading guilty, and Petitioner affirmed he clearly understood those rights. Id. at 8-10. 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 11-12. 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 12. Additionally, Judge Hall reviewed the potential for a ten-year term of imprisonment for conviction on the felon in possession charge. Id. at 13. When asked, Petitioner confirmed that he understood the possible imprisonment penalty, as well as the potential $250, 000 fine and three years of supervised release after completion of the term of imprisonment. Id. at 13.

         Judge Hall further explained that upon entry of the guilty plea, he would order the preparation of a Presentence Investigation Report (PSI), and Petitioner's sentence would be based on the information in the PSI. Id. at 14-15. 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 15. 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.

         Judge Hall next heard a factual basis for the guilty plea from Special Agent Ronald Rhodes with the Bureau of Alcohol, Tobacco, and Firearms. Id. at 16-19. SA Rhodes testified that on May 5, 2016, the Georgia Department of Community Corrections arrived at a residence on Bassford Drive in Hephzibah, Georgia, to conduct a probation check on Petitioner. Id. at 17. When Ebony Brown answered the door, officers smelled marijuana coming from the residence, and when Petitioner came to the door, officers informed him of a Fourth Amendment waiver in place as a result of his probation for a 2013 conviction for possession with intent to distribute marijuana. Id. When officers entered the residence to search, they located 988 grams of marijuana and two firearms. Id. Petitioner was taken into custody. Id. SA Rhodes confirmed the firearms were stolen, had not been manufactured in Georgia, and had moved in interstate or foreign commerce. Id. at 18. Ms. Brown, the person who originally answered the door, stated - and Petitioner confirmed - none of the drugs or firearms discovered in the residence belonged to her. Id.

         On cross-examination, Ms. Jeffords elicited from SA Rhodes that he had not actually seen a Fourth Amendment waiver. Id. at 19. However, SA Rhodes explained Richmond County deputies, as well as the probation officers, were on the scene - Petitioner's record of residence - prior to ATF's arrival, and he was told there was a waiver. Id.

         After SA Rhodes concluded his testimony, Judge Hall stated the two elements the government would have to prove to convict Petitioner of the felon in possession charge to which he was pleading. Id. at 20. Judge Hall further confirmed with Petitioner that after hearing the testimony of SA Rhodes and knowing his own conduct, he was guilty of the charge and wanted to plead guilty because he was a convicted felon who had in fact possessed two firearms and ammunition on the date in question. Id. Petitioner responded affirmatively. Id.

         Judge Hall then summarized the proceedings as follows:

Now that the plea has been signed and entered into the record of this hearing, the Court finds that the Defendant, Mr. Blount, is competent. He fully understands the charge against him. There is an independent factual basis supporting his plea of guilty contained in each of he essential elements of this offense. He knows the statutory punishment that could be ...

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