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James v. United States

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

August 24, 2017

Sigmund Diaola James a/k/a Sig, Movant,
v.
United States of America, Respondent.

          OPINION AND ORDER

          MARGARET B. SEYMOUR, SENIOR UNITED STATES DISTRICT COURT JUDGE

         On 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.

         I. Factual and Procedural Background

         From 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.

         On 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.

         On 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.

         On 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.

         Movant filed a joint appeal with two of his codefendants, Anthony Sellers (“Sellers”) and Alcindo Rochelle Matthews (“Matthews”). Attorney Beattie Ashmore represented Movant on appeal.[1] 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 Rights.
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] § 1B1.3.
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 proportionate.

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.

         The 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.

         Movant asserts the following grounds in ...


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