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United States v. Rodney

United States District Court, E.D. Louisiana

November 18, 2014

UNITED STATES OF AMERICA,
v.
KENRIC RODNEY, Section:

ORDER AND REASONS

MARY ANN VIAL LEMMON District Judge.

IT IS HEREBY ORDERED that Kenric Rodney's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (Doc. #151) is DENIED.

BACKGROUND

This matter is before the court the defendant's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody. Defendant, Kenric Rodney, argues that this court should reduce his sentence because there was a constructive amendment of the indictment during the trial, he received ineffective assistance of counsel at trial because his trial counsel failed to object to the constructive amendment and failed to move for acquittal, and he received ineffective assistance of counsel on direct appeal because his appellate counsel failed to raise the retroactive application of the Fair Sentencing Act of 2010.

In September 2011, Rodney was tried by a jury on a four-count superseding indictment in which he was charged with: Count 1: conspiracy to distribute and possess with the intent to distribute five kilograms or more of cocaine hydrochloride, fifty grams or more of cocaine base ("crack"), and a quantity of heroin and marijuana, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), 841(b)(1)(C) and 846; Count 2: distributing fifty grams or more of cocaine base ("crack") on or about April 20, 2009, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A), and 18 U.S.C. § 2; Count 3: distributing fifty grams or more of cocaine base ("crack") on or about April 23, 2009, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A), and 18 U.S.C. § 2; and, Count 4: distributing a quantity of cocaine hydrochloride on or about September 15, 2009, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C), and 18 U.S.C. § 2.[1] On a special verdict form, the jury found Rodney guilty of Count 1. The jury was then instructed to "make an additional finding as to the type and quantity of drugs involved in the conspiracy, " and answered as follows:

We the Jury unanimously find, that the overall scope of the conspiracy involved:
A) Amount of Cocaine Hydrochloride ("powder"):
(a) __X__ 5 kilograms or more of a mixture or substance containing a detectable amount of cocaine hydrochloride ("powder")
(b) _____ 500 grams or more of a mixture or substance containing a detectable amount of cocaine hydrochloride ("powder")
(c) _____ less than 500 grams of a mixture or substance containing a detectable amount of cocaine hydrochloride ("powder")
(d) _____ No cocaine hydrochloride ("powder")
B) Amount of Cocaine Base ("crack"):
(a) __X__ 280 grams or more of a mixture or substance containing a detectable amount of cocaine base ("crack")
(b) _____ 50 grams or more of a mixture or substance containing a detectable amount of cocaine base ("crack")
(c) _____ 28 grams or more of a mixture or substance containing a detectable amount of cocaine base ("crack")
(d) _____ 5 grams or more of a mixture or substance containing a detectable amount of cocaine base ("crack")
(e) _____ less than 5 grams of a mixture or substance containing a detectable amount of ...

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