United States District Court, D. South Carolina, Orangeburg Division
OPINION AND ORDER
MARGARET B. SEYMOUR, SENIOR UNITED STATES DISTRICT COURT
March 2, 2015, Movant Sigmund Diaola James
(“Movant”), a federal inmate proceeding pro
se, filed a motion under 28 U.S.C. § 2255 to
vacate, set aside, or correct his sentence. ECF No. 1905. The
government moved for summary judgment on April 1, 2015. ECF
No. 1920. On April 1, 2015, 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. 1926. Movant filed a response in
opposition to the government's motion on July 27, 2015.
ECF No. 1962. Movant filed additional documents in support of
his § 2255 motion on August 10, 2015. ECF No. 1970.
Factual and Procedural Background
2001 through 2008, Movant was involved in a drug conspiracy
to distribute kilogram quantities of cocaine in Richland
County and Orangeburg County, South Carolina. ECF No. 1515 at
20. In May 2007, the South Carolina Highway Patrol stopped
Movant for speeding. Id. at 27. Movant was arrested
on an outstanding warrant for failure to pay child support
and informed the officers that he had cash in his car.
Id. The officers conducted an inventory search and
recovered $8, 000 in the center console. Id.
Thereafter, agents with the Drug Enforcement Administration
(“DEA”); Bureau of Alcohol, Tobacco, Firearms,
and Explosives (“ATF”); and Orangeburg County
Sheriff's office began a criminal investigation into
Movant's possible involvement with drug trafficking.
Id. The investigation included, among other things,
GPS tracking of Movant's car, wiretaps, controlled
purchases, and surveillance. Id. Movant was again
stopped by South Carolina Highway Patrol on September 8,
2008. ECF No. 1508 at 17. While writing the traffic violation
ticket, the officer noticed a rear-facing camera mounted on
the truck's tailgate. Id. While the officer was
writing the ticket, Movant attempted to drive off but crashed
into a median, he then attempted to flee on foot.
Id. The officers observed Movant pull out a white
bag from his waistband and discard the substance as he ran.
Id. The officers apprehended Movant within several
hundred yards. Id. The officers searched the area
Movant and uncovered a bag with a substance that tested
positive for cocaine. Id.
September 19, 2008, the grand jury charged Movant and
twenty-two co-defendants in a forty-two count indictment.
Count 1 charged that Movant knowingly and intentionally
combined, conspired, and agreed with others, both known and
unknown to the grand jury, to knowingly and intentionally,
and unlawfully possess with intent to distribute and to
distribute 50 grams or more of cocaine base and 5 kilograms
or more of cocaine, both Schedule II controlled substances,
in violation of 21 U.S.C. §§ 841(a)(1) and
841(b)(1)(A), all in violation of 21 U.S.C. § 846.
Counts 2, 6-10, 12-15, 17, 18-19, 25, 27, 28, 30, and 32-33
charged that Movant knowingly and intentionally used a
communication facility, that is, a telephone, to facilitate
the commission of a felony under the Controlled Substances
Act, to wit: conspiracy to distribute, possession with intent
to distribute, and distribution of cocaine and cocaine base,
Schedule II substances, in violation of 21 U.S.C.
§§ 841(a)(1) and 846, all in violation of 21 U.S.C.
843(b) and 18 U.S.C. § 2. Count 36 charged that Movant
knowingly, intentionally, and unlawfully possessed with
intent to distribute and distributed 500 grams or more of
cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and
841(b)(1)(B), and 18 U.S.C. § 2. Count 37 charged that
Movant knowingly, intentionally, and unlawfully possessed
with intent to distribute and distributed a quantity of
cocaine, a Schedule II controlled substance, in violation of
21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C), and 18
U.S.C. § 2. Count 39 charged that Movant knowingly and
willfully did combine, conspire, agree together, and have
tacit understanding with each other and with various other
persons, both known and unknown to the grand jury, to launder
drug proceeds, that is, to conduct and attempt to conduct
financial transactions and monetary transactions which in
fact involved the proceeds of the distribution of controlled
substances, a specified unlawful activity, with the intent to
promote the carrying on of the aforesaid specific unlawful
activity with knowledge that (1) the financial transactions
represented the proceeds of some form of unlawful activity;
and (2) the transactions were designed in whole or in part to
conceal and disguise the nature, the location, the source,
the ownership, and control of the proceeds of specific
unlawful activity; in violation of 18 U.S.C. §§
1956(a)(1)(A)(I) and 1956(a)(1)(B)(I); all in violation of 18
U.S.C. §§ 1956(h) and 2. Count 41 charged that
Movant was a principal and aider and abettor who knowingly,
intentionally, and unlawfully possessed with intent to
distribute and distributed 500 grams or more of cocaine, a
Schedule II controlled substance, within 1, 000 feet of a
school and playground, in violation of 21 U.S.C. §§
841(a)(1), 841(b)(1)(C), and 860(a), and 18 U.S.C. § 2.
Count 42 charged that Movant was a principal and aider and
abettor who knowingly, intentionally, and unlawfully
possessed with intent to distribute and distributed 500 grams
or more of cocaine, a Schedule II controlled substance,
within 1, 000 feet of a school and playground, in violation
of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and
860(a), and 18 U.S.C. § 2.
December 15, 2009, a jury found Movant guilty of the charged
counts. Attorney Parks Small represented Movant at trial.
Prior to sentencing, the United States Probation Office
prepared a presentence investigation report. ECF No. 1503.
Pursuant to the United States Sentencing Guidelines
(“Sentencing Guidelines”) § 3D1.2(d), the
probation officer grouped counts involving substantially the
same harm together to calculate Movant's total offense
level. The probation officer determined there were three
groups: Group One: Counts 1, 4, 6-10, 12-15, 17-19, 25, 27,
28, 30, 32, 33, 36, and 37; Group Two: Counts 41 and 42; and
Group Three: Count 39. ECF No. 1503 at 31. The probation
officer calculated Group One “Adjusted Offense
Level” at 42; Group Two “Adjusted Office
Level” at 43; and Group Three “Adjusted Offense
Level” at 45. ECF No. 1503 at 32-34. Under Sentencing
Guidelines § 3D1.4, the combined offense level is the
highest offense level; however, under Sentencing Guidelines
Chapter 5, Application Note 2, when an offense level is
higher than 43, it is to be treated as 43. Accordingly,
Movant's Total Offense Level was 43. The probation
officer calculated Movant's criminal history category as
III. Id. at 30. Movant's guideline range was
calculated at life imprisonment. Id. at 37. Movant
objected to the entirety of the presentence report. ECF No.
1503-2. However, at the sentencing hearing, Movant limited
his objections to the cross-reference contained in paragraphs
62-66, which related to the murder of Vance Davis in 2004.
August 19, 2010, the court sentenced Movant to a term of
imprisonment consisting of life as to Count 1; 48 months each
as to Counts 2, 6-10, 12-15, 17-19, 25, 27, 28, 30, and 32,
33; 480 months each as to counts 36 and 41; 240 months each
as to Counts 37 and 39; and 960 months as to Count 42, all to
run concurrently. ECF No. 1523. The court also imposed a term
of supervised release for 8 years, consisting of 5 years as
to Count 1; 1 year each as to Counts 2, 6-10, 12-15, 17-19,
25, 27, 28, 30, 32, 33; 4 years as to Count 36; 3 years each
as to Counts 37 and 39; 6 years as to Count 41; and 8 years
as to Count 42, all to run concurrently and with standard and
special conditions to include substance abuse treatment with
testing, financial or consumer credit counseling and
vocational training. Id. Lastly, Movant had to pay a
special assessment of $2, 500. Id.
filed a joint appeal with two of his codefendants, Anthony
Sellers (“Sellers”) and Alcindo Rochelle Matthews
(“Matthews”). Attorney Beattie Ashmore
represented Movant on appeal. Movant presented the following
grounds for appeal:
I. Sellers was sentenced to life without parole and that
sentence was not proportionate.
II. Sellers was denied due process in that the court allowed
the case agent to present hearsay testimony of a codefendant,
Tyrone Blocker, thereby denying Sellers the opportunity to
confront and cross examine the witness.
III. The court should have suppressed for use in evidence:
the drugs, the gun, other tangible evidence against Sellers
and the statements made by Sellers following his arrest on
August 14, 2008.
IV. The search of [Movant's] truck on May 21, 2007
violated his Fourth Amendment Rights.
V. The GPS tracking devices installed on [Movant's]
vehicle without a warrant violated his Fourth Amendment
VI. The government did not make a sufficient showing of the
necessity for the wiretaps thus evidence obtained there-from
should have been suppressed.
VII. [Movant's] statement made May 21, 2007 and November
20, 2008 should have been suppressed as there were obtained
in violation of the Constitution.
VIII. At sentencing, it was clear error to find that [Movant]
murdered Vance David; that he possessed a firearm and
ammunition; and that 90 kilograms of cocaine were
attributable to him. The court failed to articulate why it
found that the alleged murder was ‘relevant
conduct' under [United States Sentencing Guidelines]
IX. [Movant's] conviction and sentence for Count 42 is
invalid because the jury did not make the required finding of
the threshold drug quantity.
X. [Movant] was sentenced to life and that sentence is not
App. No. 10-4701, Appellant Br. 2-3, ECF No. 79. The Fourth
Circuit Court of Appeals held: (1) the initial search that
uncovered the $8, 000 and discovered the rear-facing camera
was a valid inventory search and no evidence from the
subsequent search of Movant's car was introduced at
trial; (2) the attachment of the GPS device to Movant's
car violated Movant's Fourth Amendment rights but no GPS
data was introduced at trial; (3) even after excluding the
GPS information, the “surviving information contained
in the application remained sufficient to support a finding
of probable cause and necessity required to issue a
wiretap”; (4) the court erred in considering the Davis
murder as relevant conduct during sentencing; and (5) the
life sentence was not disproportionate. United States v.
Sellers, 512 F. App'x 319 (4th Cir. 2013). The
Fourth Circuit lastly stated “[w]e have examined all
remaining issues raised by Appellants in their brief and find
them to be without merit.” Id. at 333 n.4.
Fourth Circuit remanded the case to the court for
resentencing. ECF No. 1806. Prior to resentencing the court
issued the following text order:
The within action has been set for sentencing pursuant to
remand from the Court of Appeals for the Fourth Circuit. The
Fourth Circuit found error in the court's determination
that the Davis murder was relevant conduct to the underlying
conspiracy. The court therefore improperly “increas[ed]
[Movant's] base offense level under the cross-reference
provisions.” The Fourth Circuit directed the court to
resentence [Movant] utilizing the correct offense level
calculation. Thus, the court declines to conduct a de novo
sentencing and to reconsider its previous rulings as to drug
weights, firearms enhancements, denial of acceptance of
responsibility, role adjustments, or other matters previously
addressed at sentencing.
ECF No. 1815. The United States Probation Office again
prepared a presentencing report, removing only the
cross-reference. Movant's offense level and criminal
history score remained the same. Compare ECF No.
1503 at 35, with ECF No. 1816 at 35. The court
sentenced Movant to the same sentence. Compare ECF
No. 1523, with ECF No. 1821. Movant appealed his
sentence to the Fourth Circuit, raising the following issue
on appeal: “[d]id the court err in denying
[Movant's] request for a de novo sentencing
after the appellate court remanded directing a
resentencing.” App. No. 13-4523, App. Br. 5, ECF No.
10. The Fourth Circuit held that the “mandate rule 
prohibits ‘litigation of issues decided by the district
court but foregone on appeal or otherwise waived, for example
because they were not raising in the district court.”
United States v. James, 547 F. App'x 237, 238
(4th Cir. 2013). The Fourth Circuit found that Movant waived
his objections as he raised the drug weight and firearm
enhancement at sentencing but failed to raise them on appeal,
and that Movant failed to raise the remaining issues at the
first sentencing and on appeal. Id.
asserts the following grounds in ...