Opinion
CRIMINAL DOCKET NO:00-383
January 7, 2004
MINUTE ENTRY
Before the court is the Government's " Motion to Dismiss Defendant's Motion for Post-Conviction Relief Under 28 U.S.C. § 2255". Defendant, Kevin Williams, filed a memorandum in opposition. The Government's motion, set for hearing on Wednesday, January 7, 2004, is before the court on briefs, without oral argument.
Having reviewed the parties' briefs, the record and the applicable law, the court concludes that:
(1) an evidentiary hearing is not necessary because all of the facts underlying the issues raised in the Government's Motion to Dismiss and the Defendant's § 2255 Motion are contained in the record, and ruling on the Government's motion depends solely upon the application of the relevant case law and standard of review to facts that are already part of the record; and
(2) the Government's motion should be granted.
I. Background
On January 18, 2001, Defendant Kevin Williams was charged in a Superseding Indictment with: conspiracy to possess with the intent to distribute approximately 171 grams of cocaine hydrochloride and more than 50 grams of cocaine base (crack) in violation of 21 U.S.C. § 846; one count of distribution of cocaine hydrochloride and three counts of distribution of crack in violation of 21 U.S.C. § 841(a)(1); and one count of possession with intent to distribute crack and one count of possession with intent to distribute crack and cocaine hydrochloride in violation of 21 U.S.C. § 841(a).
On July 24, 2002, Williams pled guilty to Count 1 (the conspiracy), and to Count 3 (distribution of more than 50 grams of crack). Williams pled guilty pursuant to a plea agreement in which Williams agreed:
Except as otherwise provided in this paragraph, the defendant hereby expressly waives the right to appeal his sentence on any ground, including but not limited to any appeal right conferred by Title 18, United States Code, Section 3742 on the defendant, and the defendant further agrees not to contest his sentence in any post-conviction proceeding, including but not limited to a proceeding under Title 28, United States Code, Section 2255. The defendant, however, reserves the right to appeal the following: (a) any punishment imposed in excess of the statutory maximum, and (b) any punishment to the extent it constitutes an upward departure from the Guideline range deemed most applicable by the sentencing court.
(See Plea Agreement, Doc. No. 37, p. 2).
At his Rearraignment, Williams acknowledged that he understood this appeal waiver. ( See Rearraignment Transcript, Doc. No. 66 Government's Ex. A, pp. 8-9). In response to questions from the court, Williams responded as follows:
The Court: Now the plea agreement provides, among other things, that you are giving up your right to appeal any sentence that I might enter in this matter with two exceptions. You can appeal the sentence if I sentence you to a sentence that is longer than provided in the Statute passed by Congress, or you can appeal the sentence if I sentence you to a sentence that is greater than the sentence provided for in the sentencing guidelines as I determine the sentencing guidelines to be. Do You understand that, sir?
Defendant: Yes, sir.
The Court: Do you understand, with those two exceptions, that you are giving up your right to appeal any sentence that I might impose, you understand that, sir?
Defendant: Yes, sir.
Id.
At his Rearraignment, the court also advised Williams that for each Count 1 and Count 3, the maximum possible term of imprisonment was life, with a mandatory minimum term of ten years. Id. at 6-7.
Prior to Sentencing, Williams filed a written objection to the two-level enhancement for possession of a firearm under USSG § 2D1.1 (b)(1). At the Sentencing hearing, Williams' counsel also argued that the evidence showed no connection between the firearm and the drug offense. However, the court rejected this argument, finding that "the Probation Officer's response to Defendant's objection [was] an accurate statement of the law as it fits [the] facts of this case." (See Sentencing Transcript, Doc. No. 67 Government Exhibit B, p. 4). The court sentenced Williams to 168 months incarceration, the bottom of the sentencing guideline range.
Defendant's base offense level was 36 pursuant to a finding that Defendant's relevant conduct made him accountable for at least 500 grams of cocaine base, but less than 1.5 kilograms. (USSG § 2D1.1). However, with the addition of two offense levels for possession of a firearm pursuant to USSG § 2D1.1(b)(1), and reduction of three offense levels for acceptance of responsibility, Defendant's total offense level was calculated to be 35. At Criminal History Category I, the sentencing range was 168-210 months. ( See Pre-Sentence Investigation Report, pp. 7 12).
Williams sought to appeal his sentence, and the Office of Federal Public Defender was appointed for this purpose. In light of the appeal waiver, however, defense counsel filed an Anders brief stating that there did not appear to be any non-frivolous issue for appeal, including the application of the § 2D1.1(b)(1) enhancement. ( See Government's Exhibit C, Anders Brief). On March 14, 2003, the Fifth Circuit agreed and dismissed Williams' appeal as frivolous. (Doc. No. 70).
Williams timely filed his § 2255 motion on September 30, 2003. All of his claims center around the application of the § 2D1.1(b)(1) enhancement. (Doc. No. 71).
II. Legal Analysis
"An informed and voluntary waiver of post-conviction relief is effective to bar such relief." United States v. Wilkes, 20 F.3d 651, 653 (5th Cir. 1994). Here, Williams clearly waived his right to challenge his sentence under § 2255 in his plea agreement. Further, as Williams attested in open court at his Rearraignment, he understood and voluntarily approved the waiver of his appellate rights, which the court specifically explained to him.
In her Anders brief, defense counsel stated that she concluded there were no non-frivolous issues for appeal, but Williams nonetheless wished to argue: (1) that the court erred in imposing the § 2D1.1(b)(1) enhancement; and (2) that the enhancement constituted an upward departure not waived by the plea agreement or that the enhancement was unconstitutional and an exception to the Fifth Circuit's rule that waivers are enforceable if knowing and voluntary. The Fifth Circuit rejected these arguments as frivolous, and that conclusion cannot be relitigated under § 2255. United States v. Kalish, 780 F.2d 506, 508 (5th Cir. 1986).
In his § 2255 motion, Williams also argues that his counsel was ineffective under Strickland v. Washington, 466 U.S. 668 (1984), in failing to "argue the inapplicability of the basis for the upward departure at sentencing and on Direct Appeal." (Williams' Memo, at 9). However, the court rejects this argument at the outset because an increase in the offense level is not the equivalent of an upward departure. See United States v. Gaitan, 171 F.3d 222 (5th Cir. 1999). And the court did not depart upward, but rather sentenced Defendant to 168 months incarceration, which was at the bottom of the guideline range. Finally, the record reflects that trial counsel objected to the two level gun enhancement at sentencing, and appellate counsel presented the "upward departure" argument in the Anders brief. (See PreSentence Investigation Report, Supplemental Addendum at 19-20 attachment; Government Ex. B, Sentencing Transcript; Government Ex, C, Anders brief at p. 10).
See fn. 1, supra.
In her Anders brief, Defendant's counsel acknowledged that the Fifth Circuit has rejected the argument that an enhancement falls within the exception to the waiver of appeal language in the plea agreement (for "upward departures" from the Sentencing Guidelines), and sanctioned counsel for pursuing an appeal contrary to the waiver. ( See Anders Brief at 10, citing United States v. Gaitan, 171 F.3d 222 (5th Cir. 1999).
Accordingly,
IT IS ORDERED that the Government's "Motion to Dismiss Defendant's Motion for Post-Conviction Relief Under 28 U.S.C. § 2255" be and is hereby GRANTED; and
IT IS FURTHER ORDERED that Defendant Williams' "Motion for Post-Conviction Relief Under 28 U.S.C. § 2255" be and is hereby DISMISSED.