United States District Court, D. South Carolina
ORDER AND OPINION
MARGARET B. SEYMOUR, Senior District Judge.
Movant Vernon Jamison is a federal inmate currently housed at FCI-Bennettsville in Bennettsville, South Carolina. On March 21, 2013, Movant, proceeding pro se, filed a motion under 28 U.S.C. § 2255 to vacate, set aside, or correct sentence. On April 19, 2013, Respondent United States of America (the "government") filed a response and motion for summary judgment. By order also filed April 19, 2013, 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 July 24, 2013.
I. FACTS AND PROCEDURAL HISTORY
Movant was indicted on August 17, 2011, and charged with a conspiracy to possess with intent to distribute and to distribute five kilograms or more of cocaine, which conspiracy began at least in or around 2003 to 2004 and continued up to and including June of 2008, in violation of 21 U.S.C. § 846 (Count 1); and use of a communication facility to facilitate the commission of a felony under the Controlled Substances Act, in violation of 21 U.S.C. §§ 843(b) and 18 U.S.C. § 2 (Counts 2-11). On December 15, 2011, Movant executed a plea agreement in which he agreed to plead guilty to Count 1. Among other things, the plea agreement provided that Movant's failure to comply with any of the provisions of the agreement would grant the government the right, at its election, to void all of its obligations under the agreement. Id . ¶ 7. The plea agreement contained a cooperation provision whereby Movant agreed to provide full, complete, and truthful debriefings regarding all criminal activities about which he had knowledge. ECF No. 63, ¶ 8. The plea agreement also provided that Movant would submit to polygraph examinations as requested by the government, and that his refusal to take or his failure to pass any polygraph examination to the government's satisfaction would result, in the government's discretion, in the obligations of the government within the plea agreement becoming null and void. Id . ¶ 9. After hearing the matter, the court accepted Movant's change of plea on December 20, 2011.
The United States Probation Office (USPO) prepared a presentence investigation report (PSR). Movant was held accountable for 2, 520 grams of cocaine base; 20, 000 grams of cocaine; and 1, 450 grams of marijuana, for a marijuana equivalent of 13, 000.37 kilograms. Included in the amounts attributable to Movant were 1, 450 grams of marijuana that had been located in a bag during a search of Movant's residence on April 13, 2011, approximately three years after the conclusion of the conspiracy for which Movant was indicted.
Movant's base offense level was 36. He received a two-level enhancement for possessing a dangerous weapon, based upon the seizure of a 9mm Beretta pistol that had been located in a pocket of the bag containing the 1, 450 grams of marijuana. Movant received a three-level reduction for acceptance of responsibility, for a total offense level of 35. Movant's criminal history category was I, for a sentencing range under the United States Sentencing Guidelines of 168 to 210 months imprisonment. Movant's statutory mandatory sentence was ten years to life in prison. ECF No. 73.
Movant interposed objections to the PSR as follows:
1. Movant objected to the two-level enhancement for possession of a dangerous weapon. Movant contended that he did not possess firearms during conduct related to the offense of conviction. The USPO responded that pursuant to Application Note 3(A) of U.S.S.G. § 2D1.1(b)(1), the enhancement should apply unless it was "clearly improbable" that the weapon was connected with the offense. The USPO further responded that Movant was accountable for relevant conduct under U.S.S.G. § 1B1.3(a)(1). The USPO noted that a search warrant of the residence of Movant's brother, Alfonda Jamison, had uncovered a 9mm Beretta pistol in the pocket of a bag containing 1, 450 grams of marijuana packed in two bags. Fingerprints on the exterior of one of the bags of marijuana were matched to Movant. Further, Movant admitted possessing the pistol when interviewed by federal authorities. Thus, the USPO did not revise the PSR.
2. Movant objected to the inclusion of the marijuana found in the search of his brother's residence because, like the Beretta pistol, it was not part of the relevant conduct or related to the offense conduct. The USPO responded that, as set out in the first objection, Movant was responsible for relevant conduct. The USPO also responded that Movant was responsible under U.S.S.G. § 1B1.3(a)(2) for all acts or omissions that were part of the same course of conduct or common scheme or plan as the offense of conviction. The USPO stated that, upon examination of the discovery materials, ample evidence existed to prove the pistol and marijuana recovered at the residence of Movant's brother was part of the same common course of conduct as Movant's offense of conviction. Therefore, the USPO did not revise the PSR.
3. Finally, Movant objected to any paragraph referencing the mandatory minimum sentence of ten years. Movant contended that if his gun enhancement objection were sustained, and he complied with the requirements of U.S.S.G. § 5C1.2, he could qualify for the safety valve. The USPO responded that Movant would not qualify for the safety valve because (1) he possessed firearms and (2) he had not truthfully provided information to the government. Accordingly, the USPO made no changes to the PSR.
See generally ECF No. 73-1.
A sentencing hearing was held on April 26, 2012. Trial counsel informed the court that Movant had determined to withdraw the third objection involving Movant's eligibility for the safety valve. Transcript of Sentencing Hearing, ECF No. 103, 2. The court then heard argument regarding the first objection regarding the inclusion as relevant conduct of the marijuana seized in 2011, as well as the firearm enhancement for the Beretta seized in 2011. During the proceedings, the court inquired as to why the government had not presented the grand jury with a superseding indictment that included the marijuana and weapon as additional charges. Id. at 8. The government stated that, as part of plea negotiations, the government and Movant recognized that a two-level firearm enhancement under the Sentencing Guidelines was more favorable to Movant than a five-year consecutive sentence under 18 U.S.C. § 924(c),  had Movant been charged with possessing the firearm. Id. at 8. The government informed the court that it benefitted from not being required to return to the grand jury, and Movant benefitted by not being subject to a consecutive sentence. Id. at 8-10.
After a lengthy hearing on the objections, the court determined that Movant's possession of a weapon and marijuana were part of the same course of conduct as the offense of conviction, and thus constituted relevant conduct that appropriately was included in the PSR calculations. Id. at 31; see U.S.S.G. § 1B1.3(a)(2). Therefore, the court overruled the first and second objections to the PSR. The court granted a variance and applied a 1:1 cocaine base/cocaine powder ratio, which adjusted Movant's total offense level to 33, with a resulting Guidelines range of 135-168 months incarceration. The court also granted a variance pursuant to U.S.S.G. § 1B1.1 and 18 ...