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Covington v. United States

United States District Court, D. South Carolina, Florence Division

April 13, 2016

Demario Covington, PETITIONER
v.
United States of America, RESPONDENT Crim. No. 4:11-cr-00417-TLW-1

ORDER

Terry L. Wooten Chief United States District Judge

This matter comes before the Court for consideration of the pro se petition to vacate, set aside, or correct a sentence pursuant to 28 U.S.C. § 2255 filed by Petitioner Demario Covington. For the reasons stated below, the Court dismisses the petition.

I. Factual and Procedural History

Petitioner was the lead defendant in a twelve-defendant, nineteen-count Indictment filed on March 22, 2011. ECF No. 3. The indictment charged him with one count of conspiring to possess with intent to distribute and to distribute 5 kilograms or more of cocaine and 280 grams or more of crack cocaine (Count 1), and one count of substantive possession with intent to distribute a quantity of crack cocaine (Count 2). Attorney James Battle was appointed to defend him. ECF No. 60.

Prior to jury selection, the Government filed an Information pursuant to 21 U.S.C. § 851, notifying Petitioner that it intended to rely on four prior felony drug convictions to enhance his statutory sentence to mandatory life imprisonment from the 10 years to life range that would have applied absent the enhancement. ECF No. 607.

The Court held jury selection on May 14, 2012, and Petitioner’s trial was set to begin the following day. On the morning of trial, he notified the Court that he intended to plead guilty pursuant to a plea agreement. Plea Tr. 2:1-23. In exchange for a guilty plea to the drug conspiracy count, the Government agreed to dismiss the substantive count and withdraw all but one of the § 851 enhancements, resulting in a statutory sentencing range of 20 years to life imprisonment. Id. 6:17-7:5. After a thorough Rule 11 colloquy, the Court accepted his guilty plea. Id. 27:9-13.

After Petitioner’s plea, the U.S. Probation Office prepared a Presentence Investigation Report (“PSR”) in which Probation concluded that he should be held accountable for 31.3 kilograms of crack cocaine, resulting in a base offense level of 38.[1] PSR ¶ 145. Additionally, as a result of a drug-related murder that he allegedly helped to orchestrate, Probation determined that a cross-reference to first degree murder should apply. PSR ¶¶ 12-13, 147. This resulted in a revised base offense level of 43. Probation also concluded that he should receive a two-level firearm enhancement, a four-level role enhancement, a two-level obstruction enhancement, and that he should not receive a reduction for acceptance of responsibility. PSR ¶¶ 146, 149-150, 153. As a result, his total offense level was 49.[2] PSR ¶ 154. His prior criminal record, both through a standard calculation of criminal history points as well as through his classification as a career offender, resulted in him being in a criminal history category of VI. PSR ¶¶ 126-27. As a result, his advisory guideline range was life imprisonment. PSR ¶ 174.

Mr. Battle filed extensive objections on Petitioner’s behalf. Specifically, he objected to the application of the murder cross-reference, the obstruction enhancement, the firearm enhancement, the role enhancement, and the denial of acceptance of responsibility. If he prevailed on all of these objections, his total offense level would have dropped to 36 and his criminal history category would have remained VI, resulting in a guideline range of 324 to 405 months incarceration.

After Mr. Battle filed these objections, Petitioner filed pro se motions to withdraw his guilty plea and to fire Mr. Battle. ECF Nos. 710, 711. The Court held a hearing on these motions and denied his motion to withdraw his guilty plea, but granted his request for a new lawyer. ECF No. 727. The magistrate judge appointed Attorney Melvin Cockrell to represent Petitioner going forward. ECF No. 734.

On the morning of the sentencing hearing, the Government filed an addendum to the plea agreement, signed by Petitioner, that read, in full, as follows:

If the defendant complies with the terms of this Agreement, both parties agree that the appropriate disposition of this case (irrespective of any fines and/or forfeitures) is a sentence of 35 years actual incarceration, followed by the appropriate statutory term of supervised release. In the event that the defendant complies with all terms of this Agreement and the Court declines to impose this sentence, the Defendant will have the right to withdraw his FRCRP 11(C)(1)(c). If the Defendant does not comply with all the terms of this Agreement, the United States will seek the maximum sentence allowed by law and the Defendant will not be allowed to withdraw his plea.

ECF No. 770. At the hearing, the Court thoroughly discussed this agreement with Petitioner and ensured that he consented to the stipulated sentence and the effect it would have on his guideline calculation. The Court stated that it was inclined to accept the agreement and would therefore forgo ruling on his objections to the PSR and would simply impose a 35-year sentence:

THE COURT: I’m prepared to impose a 35-year sentence. If we do that, we will not have a debate about the guidelines. We won’t have a debate. We won’t take up the objections. We won’t resolve the disputes. I’ll simply impose a 35-year sentence. We will not have a guideline ...

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