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United States v. March

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

September 12, 2016

United States of America,
v.
Gonzales March, Defendant.

          OPINION AND ORDER

          CAMERON MCGOWAN CURRIE SENIOR UNITED STATES DISTRICT JUDGE

         Defendant, through his attorney, seeks relief in this court pursuant to 28 U.S.C. § 2255. ECF No. 1713. The Government filed a motion to dismiss and a memorandum in support/response in opposition to Defendant's § 2255 motion. ECF No. 1719, 1720. On August 12, 2016, Defendant filed a response in opposition to the Government's motion to dismiss. ECF No. 1727.

         I. Background

         On September 17, 2008, Defendant was indicted (via third superseding indictment) for Conspiracy to Possess with Intent to Distribute cocaine base and cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A), and three counts of using a telephone to facilitate the commission of Conspiracy to Possess with Intent to Distribute marijuana in violation of 21 U.S.C. §§ 841(a)(1) and 846. ECF No. 561. On September 2, 2008, the Government filed an Information pursuant to 21 U.S.C. § 851, notifying Defendant that he was subject to increased penalties based on a prior conviction for a felony drug offense. ECF No. 456.

         On September 25, 2008, Defendant entered into a written plea agreement to plead guilty to the lesser included offense in count 1 and count 35 of the third superseding indictment, conspiracy to possess with intent to distribute 500 grams or more of cocaine, and use of a telephone to commit a drug trafficking crime. ECF No. 612. As part of the plea agreement, Defendant stipulated that he had one prior felony drug conviction that was the subject of an Information filed pursuant to § 851 that subjected him to a mandatory minimum sentence of 10 years imprisonment. Id. at ¶ 12. Defendant also waived his direct appeal rights and his right to file a motion for relief under § 2255 except as to claims of ineffective assistance of counsel and/or prosecutorial misconduct. Id. at ¶ 18. The same day, Defendant appeared before this court and pled guilty as above. ECF No. 614.

         A Pre-Sentence Report (PSR) concluded Defendant had at least two prior felony convictions of either a crime of violence or a controlled substance offense, and therefore was classified as a career offender pursuant to U.S.S.G. §4B1.1(b). ECF No. 837. Defendant's predicate convictions were failure to stop for a blue light (“FTSBL”) and distribution of crack cocaine. Id. at ¶¶ 35, 37. His guideline range was 262 to 327 months imprisonment.

         Defendant filed several objections to the PSR, including an objection that his conviction for failure to stop for a blue light should not be considered a crime of violence for career offender purposes, and therefore he could not be designated a career offender. ECF No. 827. Defendant also filed a motion to depart from the guidelines, arguing that his criminal history category as a career offender overstated the seriousness of his criminal history, and that the FTSBL conviction was “questionable as being classified as a crime of violence.” Therefore, the motion requested a sentence nearer to the 120 month mandatory minimum. ECF No. 859. Finally, Defendant filed a sentencing memorandum, discussing the § 3553(a) factors and requesting to enter the military instead of prison. ECF No. 863.

         On April 22, 2009, Defendant appeared for sentencing. ECF No. 879. The Government withdrew the filed § 851 enhancement in exchange for Defendant withdrawing his objections to the PSR and his motion for a downward departure based on overstatement of criminal history, both of which included the FTSBL as a predicate conviction issue. ECF No. 1041, Sentencing Transcript, at 2, 11-12. This resulted in a guideline range of 188 to 235 months. The court varied from the guideline range, imposing a sentence of 144 months imprisonment and four years supervised release. ECF No. 927.

         Despite his appeal waiver, Defendant filed an appeal with the Fourth Circuit. ECF No. 995. In his appeal, Defendant questioned the district court's application of the career offender enhancement, and argued that his attorney for sentencing was ineffective because he advised Defendant to withdraw his objection to the career offender enhancement. Defendant also argued that his 144 month sentence was not reasonable because his FTSBL conviction was not a crime of violence, and should not have been counted as a predicate conviction for career offender purposes.[1]Despite Rivers, the Fourth Circuit found that Defendant waived appellate review of the FTSBL issue because he raised and then knowingly withdrew the objection to it before the district court. ECF No. 1220. The court affirmed all appealed aspects of Defendant's sentence, but noted that arguments regarding ineffective assistance of counsel should be filed as a § 2255 motion with the district court. Id.

         On November 29, 2010, Defendant filed his first § 2255 motion. ECF No. 1239. Defendant argued that his counsel was ineffective and challenged his designation as a career offender based on the FTSBL, as that conviction could no longer count as a crime of violence under Rivers. Id. at 10. After full briefing of Defendant's motion, this court granted the Government's motion for summary judgment and dismissed Defendant's motion in its entirety. ECF No. 1270. The court found Defendant's argument, that counsel was ineffective at sentencing for allowing him to withdraw his objection to the FTSBL predicate conviction for career offender purposes, failed:

Defendant's counsel was fully aware that the FTSBL issue was in a state of flux in the Fourth Circuit. He discussed this issue with Defendant, and was prepared to argue Defendant's career offender objection on Defendant's behalf. However, counsel was also aware that existing Fourth Circuit precedent dictated that the objection would likely be overruled.

Id. at 10-11. Therefore, the court found that Defendant made his own decision to withdraw his objection regarding the career offender classification. Id. at 11 (“Defendant cannot demonstrate counsel was ineffective in advising him to take a deal that benefitted him greatly under precedent existing at the time Defendant was sentenced.”). Accordingly, the court found summary judgment for the Government to be appropriate.

         On July 8, 2011, Defendant, through counsel, filed a motion to alter judgment as to the § 2255 motion. ECF No. 1275. In it, Defendant argued he was actually innocent of being a career offender because FTSBL was categorically not a crime of violence for career offender purposes. This court denied Defendant's motion, finding, in pertinent part, that Defendant's withdrawal of his objection to the FTSBL and career offender designation at sentencing operated as “an intentional, and therefore permanent, abandonment of a position.” ECF No. 1320, at 9. As the Fourth Circuit previously found that Defendant's abandonment precluded consideration on appeal, Defendant's waiver was considered a “permanent abandonment of his position” (Id. at 11) by this court, and his motion was dismissed. Importantly, this court noted that “Defendant's appellate and post-conviction waiver and withdrawal of his objection at sentencing were made not only with full knowledge of the state of the law in the Fourth Circuit, but also based on a bargain with the Government, from which he benefitted.” Id. at 13.

         Defendant also appealed the denial of his motion to alter or amend. ECF No. 1324. This appeal was dismissed as the district court did not issue a certificate of appealability, and the Fourth Circuit determined that ...


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