United States District Court, D. South Carolina
OPINION AND ORDER
MARGARET B. SEYMOUR, Senior District Judge.
Movant Kelvin Jerod Holman is a federal inmate who currently is incarcerated at FCI-Bennettsville in Bennettsville, South Carolina. This matter is before the court on Movant's pro se motion pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct sentence, which motion was filed on September 21, 2012. The government filed a motion for summary judgment on December 14, 2012. By order filed December 17, 2012, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), Movant was advised of the summary judgment procedures and the possible consequences if he failed to respond adequately. Movant filed a response in opposition to Respondent's motion on January 16, 2013. Movant also filed a pro se motion to supplement on June 26, 2013. The government filed a response in opposition to Movant's motion to supplement on July 30, 2013, to which Movant filed a reply on August 9, 2014. The court hereby grants Movant's motion to supplement (ECF No. 356) and will address the ground for relief raised therein.
I. FACTS AND PROCEDURAL BACKGROUND
Movant was indicted on October 19, 2004, and charged with conspiracy to possess with intent to distribute and to distribute five kilograms or more of cocaine and fifty grams or more of cocaine base, in violation of 21 U.S.C. § 846 (Count 1); and possession with intent to distribute and distribution of fifty grams or more of cocaine base, in violation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(A) (Count 2). Movant initially elected to go to trial. However, prior to a jury being sworn, Movant entered into a plea agreement as to Count 1. The court held a change of plea hearing on May 30, 2006. At the change of plea hearing, Movant was placed under oath. He informed the court that he was satisfied with his lawyer. Change of Plea Transcript, ECF No. 246, 31. Movant stated that he understood that the court could not determine a sentence under the United States Sentencing Guidelines until after the presentence investigation report (PSR) was prepared. Id. at 32. Movant stated that he had spoken to his lawyer about relevant conduct and how it might apply to his case. Id . The court reviewed Count 1 of the indictment with Movant, including the elements of the offense of conspiracy and the possible penalty that he could face, i.e., a minimum term of imprisonment of ten years and a maximum term of life imprisonment. Id. at 35-37.
Respondent United States of America (the "government") next recited the terms of the plea agreement. Among other things, the government noted that the government agreed to dismiss Count 2 of the indictment. The government further noted that Movant understood the dismissal of Count 2 placed no limitation upon the court's consideration of the information relating to Count 2 for purposes of relevant conduct. The government noted that Movant understood sentencing is within the sole discretion of the court. Id. at 40-41. Upon query by the court, Movant indicated to the court that no one had promised him what sentence he would receive. Id. at 44. Movant stated that, other than the plea agreement, no one had promised him anything or held out any hope of reward to get him to plead guilty. Id. at 45.
A PSR was prepared by the United States Probation Office. Movant was held accountable for 35, 270 grams of cocaine base and 30, 067 grams of cocaine powder, for a total marijuana equivalent of 711, 411.2 kilograms. Movant's base offense level under the sentencing guidelines was 38. Movant received a two-level enhancement for possessing a dangerous weapon. Movant also received a two-level enhancement for his role as an organizer, leader, manager, or supervisor in a criminal activity. Movant's total offense level was 42. Movant's criminal history category was I. The resulting guideline range was 360 months to life imprisonment.
A sentencing hearing was set for December 19, 2006. Defendant failed to appear. He subsequently was arrested on June 1, 2007. A revised PSR was prepared. Movant again was held accountable for 711, 411.2 kilograms of marijuana equivalent. He received a two-level enhancement for being an organizer, leader, manager, or supervisory in a criminal activity. Movant also received a two-level enhancement for obstruction of justice because he had failed to appear for sentencing on December 19, 2006. Movant's total offense level was 42. With a criminal history category of I, Movant's guidelines range was 360 months to life imprisonment. Movant objected to information in the PSR provided by his co-defendant, Kelvin Bernard Tyler, as well as other information provided by government witnesses.
On December 10, 2007, Movant filed a motion to withdraw his guilty plea. The court held a sentencing hearing on August 6, 2008, at which time it heard Movant's motion. Movant was placed under oath. Sentencing Hearing Transcript, ECF No. 247, 10. Movant stated that the government had promised him a sentence of four and a half to five years to induce him to enter into the plea agreement. Id. at 11. The court pointed out Movant had informed the court at the change of plea hearing that he had not been promised anything. Id. at 14. The court further noted that Movant had been informed at the change of plea hearing that his sentence could not be determined until after a PSR had been prepared. Id. at 16. The court further advised Movant that his plea agreement reflected the statutory sentence he faced, i.e., ten years to life imprisonment. Id. at 17. The court considered the factors set forth in United States v. Moore, 931 F.2d 245, 248 (4th Cir. 1991), and denied Movant's motion to withdraw his guilty plea. Id. at 17.
The court turned to the matter of sentencing and asked if Movant had reviewed the revised PSR dated June 3, 2008. Id. at 25. The United States Probation Officer stated that the most recent PSR had been revised to correct a typographical error, and that the change did not change Movant's guidelines range or drug amounts. Id. at 26. Movant's trial counsel advised the court that Movant had been shown the last revised PSR. Id. at 27. Movant denied seeing it. Id . Trial counsel affirmed that the PSR had not changed in a substantial way. Id . The court thereupon heard from counsel on the objections to the PSR. Counsel argued that the drug amounts attributed to Movant had been inflated by the government's witnesses. Id. at 27-28.
The government called Curtis Moody to the stand. Id. at 29. Moody had pleaded guilty to conspiracy in a different case to distribute fifty grams or more of cocaine base. Id. at 32; see United States v. Gadson, 5:01-cr-084-CMC. Moody testified pursuant to a plea agreement. ECF No. 247 at 32. Moody testified that he purchased cocaine base from Movant approximately every weekend for two to three years. Id. at 37. Moody testified that in 1997 or 1998 he commenced purchasing cocaine powder and cocaine base from Movant every other week. Id. at 38-40. Moody would break down his purchases into smaller quantities for resale. Id. at 40-41. Moody testified that Movant taught him how to manufacture cocaine base. Id. at 41. Moody purchased cocaine powder and cocaine base from Movant until early 2000. Id. at 45. Moody testified that he purchased four-and-ahalf ounces of cocaine powder or cocaine base from Movant approximately twenty weeks a year from 1998 to 2000. Id. at 57-61.
The government next called Christopher Michael Corbitt to the stand. Corbitt had pleaded guilty in a different case to conspiracy to sell cocaine base. Id. at 64; see United States v. Walker, 1:98-cr-658-JFA. Corbitt testified pursuant to a plea agreement. Id. at 65. Corbitt testified that Movant purchased at least half an ounce of cocaine base from him twice a week from 1997 until 1998. Id. at 69. Corbitt testified he sold approximately three kilograms of cocaine base to Movant during this period. Id. at 72.
The government next called Antonio James. James had pleaded guilty in a different case to a conspiracy involving cocaine and cocaine base. Id. at 82; see United States v. James, 5:00-cr-1036-CMC. James testified pursuant to a plea agreement. James testified that he purchased half an ounce of cocaine base from Movant on one occasion in approximately 1996. Id. at 88.
The government next called Ed Govan. Govan also had pleaded guilty in a different case to conspiracy to possess five kilograms or more of cocaine and fifty grams or more of cocaine base. Id. at 98; see United States v. Gadson, 5:01-cr-084-CMC. Govan testified pursuant to a plea agreement. Govan testified that he met Movant in approximately 1997. Id. at 99. Govan testified that he purchased two ounces of cocaine base from Movant and two ounces of cocaine on separate occasions. Id. at 100-02, 109. Govan also testified that he occasionally dealt with Movant through Chantley Perry. Id. at 101.
The government called Movant's co-defendant, Kelvin Tyler, to the stand. Id. at 111. Tyler had pleaded guilty in the within action to conspiracy to possess five kilograms of cocaine and fifty grams or more of cocaine base. Id. at 125. Tyler also testified pursuant to a plea agreement. Id . Tyler testified that in 1995 he would provide Movant with two to three ounces of cocaine base once a week for two months. Id. at 113-14. Tyler testified that he progressed to providing Movant with half kilograms of cocaine powder weekly, after which he taught Movant how to manufacture cocaine base. Id. at 114. Tyler testified that after two or three more months, he began supplying Movant with a kilograms of cocaine or cocaine base every week until the fall of 1997. Tyler testified that he and Movant parted ways, but that from time to time he would borrow money from Movant and pay him back in cocaine powder. Id. at 114. Tyler and Movant had a few other drug transactions around 2003. Id. at 120-24. Tyler estimated that he supplied Movant with seventy to seventy-five kilograms between 1995 and 1997. Id. at 126. Of that, approximately half consisted of cocaine powder, and the remaining consisted of cocaine base. Id. at 133-34. Tyler testified that Moody, "a guy named TC... [and] another young guy in Denmark[, South Carolina] named Mario" worked for Movant. Id. at 117.
The court found that the amount of drugs attributable to Movant from Tyler was thirty kilograms of cocaine and thirty kilograms of cocaine base. Id. at 139. The court further found that three kilograms of cocaine base should be attributed to Movant based on Corbitt's testimony. The court found that 2.2 kilograms of cocaine base should be attributed to Movant based on Moody's testimony. Id. at 140. The court further found that fifty-six grams of cocaine powder and fifty-six grams of cocaine base should be attributed to Movant based on Govan's testimony. Finally, the court found that fourteen grams of cocaine base should be attributed to Movant based on James's testimony, for a total ...