United States District Court, D. South Carolina
Travis C. Whitt, Movant,
United States of America, Respondent.
AMENDED ORDER AND OPINION
MARGARET B. SEYMOUR, Senior District Judge.
Movant Travis C. Whitt is a federal inmate currently housed at FCI Coleman Low in Coleman, Florida. On August 30, 2013, Movant, proceeding pro se, filed a motion under 28 U.S.C. § 2255 to vacate, set aside, or correct sentence. On October 31, 2013, Respondent United States of America (the "government") filed a motion for summary judgment. By order also filed October 31, 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 January 2, 2014.
I. FACTS AND PROCEDURAL HISTORY
Movant was indicted on July 6, 2011 and charged with conspiracy to possess with intent to distribute and to distribute 280 grams or more of cocaine base; a quantity of cocaine, and a quantity of marijuana, in violation of 21 U.S.C. § 846 (Count 1); possession with intent to distribute a quantity of marijuana, in violation of 21 U.S.C. § 841(a)(1) in and 841(b)(1)(D) (Count 2); possession with intent to distribute and distribution of 28 grams or more of cocaine base and aiding and abetting the same, in violation of 21 U.S.C. § 841(a)(1), 841(b)(1)(B), and 18 U.S.C. § 2 (Count 3); possession with intent to distribute a quantity of cocaine base and a quantity of cocaine, in violation of 21 U.S.C. § 841(a)(1), 841(b)(1)(C), and 841(b)(1)(D) (Count 4); use and carrying of a firearm during and in relation to, and possession of a firearm in furtherance of, a drug trafficking crime, and aiding and abetting the same, in violation of 18 U.S.C. §§ 924(c) and 2 (Count 5); and felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), and 924(e) (Count 6). On January 3, 2012, the government filed an Information pursuant to 21 U.S.C. § 851, notifying Movant that he was subject to increased penalties under 21 U.S.C. §§ 841 and 846 based on the following convictions:
10/2/2007 Possession of 28 grams of marijuana or less, 2 years suspended on 16 days and 1 year probation;
03/10/2008 Possession of cocaine 1st, 2 years suspended on 16 days and 1 year probation;
03/10/2008 Possession of other controlled substances in Schedule I to V 1st, 6 months suspended on 16 days and 1 year probation.
ECF No. 109.
Movant initially elected to go to trial. After a jury was picked, but prior to the commencement of trial, Movant entered a plea agreement to Count 1 of the indictment. Among other things, Movant stipulated and agreed in the plea agreement that he had at least one prior felony drug conviction that had become final and that the government had filed an Information pursuant to § 851. Movant agreed not to contest the information. ECF No. 167, ¶ 11. The court accepted Movant's change of plea on April 9, 2012.
The United States Probation Office (USPO) prepared a presentence investigation report (PSR). Movant was held accountable for 1, 498.84 grams of cocaine base; 142.27 grams of cocaine; and 102.49 grams of marijuana; and 2.75 grams of MDMA, for a marijuana equivalent of 5, 382.28913 kilograms of marijuana. Movant had a base offense level of 34. He received a twolevel enhancement for possessing a dangerous weapon (U.S.S.G. § 2D1.1(b)(1)) and a two-level enhancement for being an organizer, leader, manager, or supervisor (U.S.S.G. § 3B1.1(c)). Movant received a three-level reduction for acceptance of responsibility, for a total offense level of 35. Movant was assessed one criminal history point, for a criminal history category of I. Movant's range under the United States Sentencing Guidelines was 168 to 210 months incarceration. However, because Movant had a prior felony drug offense, his mandatory minimum sentence under 21 U.S.C. § 841(b)(1)(A) increased from 120 months to 240 months incarceration.
Counsel interposed the following objection:
I have had an opportunity to review the Presentencing Investigation Report with my client, Mr. Whitt, and we object to paragraph sixty (60) of the Presentencing Investigation Report in that it is unfair and unnecessary to [assess] two (2) points against the defendant for counts that have been dismissed by the Government.
ECF No. 212-1, 2.
Movant appeared for sentencing on August 30, 2012. The court overruled Movant's objection to the PSR, relying on United States v. Watts, 519 U.S. 148 (1997) (holding that a sentencing court may consider conduct of which a defendant has been acquitted), and United States v. Witte, 515 U.S. 389 (1995) (noting that uncharged criminal conduct may be used to enhance a sentence). The court sentenced Movant to incarceration for a period of 240 months. Judgment was entered on September 7, 2012. Movant filed a notice of appeal, but voluntarily dismissed the appeal pursuant to Fed. R. App. P. 42(b). ECF No. 233. On May 15, 2013, the government filed a motion to reduce sentence pursuant to Fed. R. Crim. P. 35(b). The court granted the motion and sentenced Movant to imprisonment for 204 months. An amended judgment was entered on June 24, 2013.
Movant raises the following issues in his § 2255 motion:
GROUND ONE: Ineffective assistance of counsel. Counsel for [Movant] rendered ineffective assistance during pretrial, plea negotiations, trial, sentencing, and appeal. Counsel's ineffective assistance amounted to a Constitutional violation and significantly affected the outcome of [Movant's] conviction, sentence and appeal. [Movant] claims that the instances of ineffectiveness occurred during pretrial, plea negotiations, trial, sentencing and direct appeal.
GROUND TWO: Moncrieffe violation. [Movant's] 21 U.S.C. § 851 sentence enhancement violations Moncrieffe v. Holder, 133 S.Ct. 1678 (2013). [Movant's] § 851 enhancement has been improperly applied because the prior state ...