United States District Court, D. South Carolina, Aiken Division
OPINION AND ORDER
Margaret B. Seymour, Senior United States District Court
Terrance Lamar Wiggins (“Movant”), a federal
inmate proceeding pro se, filed a motion under 28 U.S.C.
§ 2255 to vacate, set aside, or correct his sentence on
September 28, 2015. ECF No. 178. The government filed a
response in opposition to Movant's motion (ECF No. 197)
and a motion for summary judgment (ECF No. 198) on March 16,
2016. On March 25, 2016, the court issued an order, pursuant
to Roseboro v. Garrison, 528 F.2d 309 (4th Cir.
1975), advising Movant of the summary judgment procedure and
the possible consequences if he failed to respond adequately.
ECF No. 199. Movant filed a response in opposition to the
government's motion on April 26, 2016. ECF No. 202.
Factual and Procedural Background
2005 through 2012, Movant was involved in a drug conspiracy
to distribute kilogram quantities of cocaine in Barnwell
County, South Carolina, and surrounding areas of South
Carolina. Record of Transcript, ECF Nos. 167 at 53:15-20; 152
at 41:8-12. In 2005, Drug Enforcement Administration
(“DEA”) agents began investigating drug and
weapons violations in the Barnwell County area, and several
cooperating witnesses detailed participating in drug
trafficking activities with Movant. ECF No. 127. During a
companion investigation into cocaine trafficking in counties
of Barnwell, Allendale, and Hampton, South Carolina, several
cooperating witnesses described their direct involvement with
Movant in the distribution of cocaine. Id. Based on
the cooperating witnesses' information, federal
investigators obtained a search warrant for Movant's
residence in Barnwell, South Carolina. ECF No. 167 at
30:8-11. On March 28, 2012, federal agents executed a search
warrant at Movant's residence and found more than $458,
802.00 in cash, quantities of marijuana and cocaine, scales,
six firearms, kilogram packaging materials, and other
paraphernalia often used in the distribution of cocaine in
kilogram quantities. ECF Nos. 127-2, 129-2. Agents
also searched Movant's mother's home, to which she
consented. ECF No. 127-2 at 2. In Movant's mother's
home agents discovered an additional $175, 455.00 in cash
that Movant had hidden and stored mostly throughout
Movant's brother's bedroom, master bathroom tub, and
mother's closet. ECF Nos. 127, 127-2. After the discovery
of the money and safe in Movant's mother's residence,
Movant asserted that his mother and brother did not have
knowledge of the money being stashed in their home. ECF No.
127. Movant claims that he “sneaked” the cash and
the safe into his mother's home; however, agents noted
that the safe was inside a closet surrounded by women's
clothing and was bolted to the floor. Id.
April 17, 2012, the grand jury charged Movant as the sole
individual named in a four-count indictment charging that
Movant knowingly and intentionally did combine, conspire and
agree with others, both known and unknown to the grand jury,
to knowingly, intentionally and unlawfully possess with
intent to distribute and distribute cocaine, a Schedule II
controlled substance, said conspiracy involving 5 kilograms
or more of cocaine, in violation of 21 U.S.C. §§
841(a)(1), 841(b)(1)(A), 846 (Count One); knowingly,
intentionally, and unlawfully did possess with intent to
distribute a quantity of cocaine, a Schedule II controlled
substance, in violation of 21 U.S.C. §§ 841(a)(1),
841(b)(1)(C) (Count Two); knowingly did possess a firearm in
furtherance of a drug trafficking crime, in violation of 18
U.S.C. § 924(c)(1) (Count Three); and, as a felon, did
knowingly did possess firearms and ammunition, in violation
of 18 U.S.C. §§ 922(g)(1), 924(a)(2), 924(e) (Count
Four). ECF No. 20 at 1-3. On April 18, 2012, the government
filed a notice of enhanced penalty informing Movant that,
pursuant to 21 U.S.C. § 851, he was subject to increased
penalties based on a previous felony drug conviction. ECF No.
26. On May 2, 2012, Movant entered a plea of not guilty to
the charges in the indictment. ECF No. 46.
April 23, 2012, Movant represented by his attorney's law
partner, George C. Johnson, met with DEA Agent Barry Wilson
regarding a proffer agreement. ECF No. 197-1 at 1.
Movant's attorney, Bryon E. Gipson
(“Counsel”), was not able to attend this first
proffer session due to a family emergency. Id. At
the meeting, Agent Wilson told Movant that if he was not
truthful, “all bets were off” and he would be in
breach of his proffer agreement. Id. Movant stated
that he understood and that he was ready to begin the
interview. Id. During the interview, Movant became
hesitant when he was asked about his mother's involvement
in his drug trafficking activities. Id.
Consequently, Agent Wilson and Mr. Johnson agreed to postpone
the interview until Counsel could meet with Movant.
15, 2012, Movant, Counsel and federal agents met again
regarding a proffer. Id. at 2. Movant signed the
proffer agreement, and proceeded to provide information about
his role and knowledge of others included in the indictment.
Id. Once again, Movant became hesitant when he was
asked questions about his family and their knowledge of his
illegal activities. Id.
at one of Counsel's visit to the Lexington County
Detention Center, Movant informed Counsel that he no longer
wished to cooperate with the government. Id. Movant
explained that his family's minister prophesied that he
would be coming home and the prophecy should supersede
cooperation with the government. Id. Movant stated
that he would no longer speak or cooperate with the
government or federal agents; he wanted to go to trial.
Id. Counsel advised Movant that this was a
“poor decision” and that his obligation to remain
truthful would still remain in effect. Id.
2, 2012, Movant rejected a plea agreement. ECF No. 46. The
government advised Movant that the government wanted to
complete its debriefing. ECF No. 197-1 at 2. On October, 28,
2012, the proffer/debriefing continued. Id. After
the proffer, the government informed Counsel and Movant that
they believed Movant had provided false material statements
related to the case. Id. A polygraph test was
scheduled for November 28, 2012. Id.
to the polygraph exam, the polygraph administer asked Movant
to confirm his previous statements about his family not being
involved in his drug trafficking activities and not having
knowledge about the money found in his mother's home.
Id. Movant altered his statement and informed the
polygraph administer that his family was in fact aware of the
activities and money. Id. at 3. Consequently, the
government determined that the polygraph was not necessary
since Movant admitted that he provided false information
during the proffer sessions. Id.
December 4, 2012, a pre-trial conference was held before the
Honorable Margaret B. Seymour. ECF No. 146. The court granted
the government's motion to hold Movant in breach of his
proffer agreement. ECF No. 146 at 62:21-24. Therefore, the
information Movant provided investigators detailing his
knowledge of participation in drug trafficking activities
with cocaine suppliers Christopher Davis and Manuel
Soto-Gonzalez was later included in the presentence report.
December 10-12, 2012, a jury heard Movant's case. ECF No.
166. On December 12, 2012, the jury found Movant guilty as to
Count One, Count Three, and Count Four. ECF No. 168 at 19-20;
ECF No. 106. The jury found Movant not guilty as to Count
7, 2013, a presentence investigation report was filed with
the court. ECF No. 127. The presentence report included a
revised addendum that stated any objections made by the
government and Movant. The government had no objections to
the presentence report. ECF No. 127-1. Movant made the
following objections: (1) to Paragraph 87, which stated that
he directed his brother or his brother assisted him in
selling illegal drugs; (2) to Paragraph 88, which provided an
enhancement for obstruction of justice because Movant
eventually divulged the location of his assets; (3) to not
receiving credit for acceptance of responsibility nor for
providing information to the government; (4) to being held
responsible for 200 kilograms of cocaine; and (5) to
Paragraph 86, which provided a four level enhancement based
on level of participation. ECF Nos. 127-1 at 1-4; 127-3.
8, 2013, the court held a sentencing hearing. The court
denied Movant's motion for a variance below Movant's
calculated advisory guideline sentence. ECF No. 152 at
45:13-14. The court overruled Movant's objections to the
presentence report. ECF No. 130. Movant was sentenced to
imprisonment for life as to Count One, one hundred twenty
months as to Count Four, and sixty months as to Count Three,
said terms to run concurrently. Id. at 42:12-16. On
May 23, 2013, Movant filed a timely notice of appeal from the
judgment and sentence entered. ECF No. 135. Movant did not