United States District Court, E.D. Louisiana
ORDER AND REASONS
CARL J. BARBIER, District Judge.
Before the court is a Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (Rec. Doc. 31) filed by Defendant, Calvin Batiste, Jr. ("Batiste"), as well as an Opposition by the United States of America ("the Government") (Rec. Doc. 35), and Batiste's Reply (Rec. Doc. 39). Having considered the parties' submissions, the record, and the applicable law, the Court finds, for the reasons expressed below, that the application should be DENIED.
PROCEDURAL AND FACTUAL BACKGROUND
On October 25, 2013, Batiste pled guilty to Count One of the Indictment (Rec. Doc. 10) pursuant to a plea agreement (Rec. Doc. 21). Count One charged Batiste with knowingly and intentionally possessing with the intent to distribute a quantity of cocaine hydrochloride, in violation of 21 U.S.C. § 846. At his rearraignment hearing, Batiste waived both his right to trial by jury as well as a formal reading of the indictment. Batiste then entered a plea of guilty pursuant to a written Factual Basis (Rec. Doc. 20), which he had acknowledged, sworn to, and signed. The Court accepted Batiste's plea of guilty after Batiste verified under oath the truth of the matters set forth in the Factual Basis.
The Factual Basis sets forth that a source of information contacted the DEA and notified the agent with whom he spoke that Batiste was looking for a source of cocaine. A meeting was scheduled, and on March 11, 2013, Batiste met with the DEA agent and agreed to purchase 5 kilograms of cocaine hydrochloride for a heavily discounted price of $26, 500. As part of the deal, Batiste was advised that he would pay for 2.5 kilograms of the drugs up-front at the next meeting and would be "fronted" the additional 2.5 kilograms. The parties further agreed that Batiste would have 48-hours from the next meeting to pay for the "fronted" 2.5 kilograms. On August 9, 2013, Batiste again met with the DEA agent to conduct the transaction. At the meeting, Batiste came equipped with a "large amount of U.S. currency in a pouch, " which Batiste advised the DEA agent was enough to cover the agreed-upon 2.5 kilograms for which payment was due. The agent then asked Batiste to text him where he would like the 5 kilograms to be delivered. At this point, Batiste was taken into custody.
21 U.S.C. § 841(b)(1)(A) imposes a mandatory minimum of ten-years imprisonment for possession with intent to distribute five kilograms or more of a substance containing cocaine. Because Batiste has a previous felony drug conviction, under this statute he would have been subject to a mandatory minimum of twenty-years imprisonment. However, as part of Batiste's plea agreement, the Government agreed to charge Batiste in the indictment with possession with the intent to distribute an un-quantified amount of cocaine hydrochloride in violation of 21 U.S.C. § 846.
According to the Pre-Sentence Report, Batiste was subject to a sentencing guideline range of 97-121 months imprisonment. Batiste was sentenced by this Court on January 23, 2014 to a term of 97 months imprisonment. Batiste did not appeal this sentence, but filed the instant motion to vacate his sentence on October 6, 2014.
In his motion, Batiste sets forth several arguments in support for why his sentence should be vacated. First, Batiste argues that he was denied effective assistance of counsel because his lawyer improperly advised him to accept a plea agreement which included an element of a crime that was not included in the indictment. Specifically, Batiste asserts that his plea agreement references the quantity of drugs which he was found to possess at the time of his arrest, when this quantity remained unnamed in his indictment. Second, Batiste argues that his counsel was ineffective by failing to request a sentencing reduction based on the quantity which he actually possessed. Batiste contends that the Government engaged in "sentencing entrapment" by "fronting" Batiste an additional 2.5 kilograms for which he didn't actually pay, simply to ensure he received a higher sentence. Batiste argues that his counsel's failure to object to his sentence on this basis constituted ineffective assistance.
In response to this argument, the Government contends that Batiste expressly agreed as part of his plea agreement not to be indicted for the crime of 21 U.S.C. § 841(b)(1)(A) for possession of 5 kilograms of cocaine hydrochloride, so as to avoid a mandatory minimum of twenty years imprisonment. As such, the Government agreed to charge Batiste with possession of an unspecified quantity of cocaine hydrochloride. Contrary to Batiste's assertions, the Government notes that Batiste's plea agreement is aptly supported by a Factual Basis which details the specifics of Batiste's crime, and which was sworn to and signed by Batiste himself. Additionally, the Government contends that Batiste has failed to show ineffective assistance of counsel, as his lawyer's conduct of which he complains involved a decision on strategy and tactics, which requires proof that such a decision "permeates the entire process with obvious unfairness." (Rec. Doc. 35, p. 4). Because Batiste has failed to make such a showing, the Government maintains that his argument is without merit.
Batiste also raises a number of other arguments in support of his motion to vacate. Batiste submits that the Government's conduct in initiating contact with him and persuading him to purchase cocaine constituted entrapment and violated his due process rights. Specifically, Batiste argues that the government's conduct in agreeing to sell him 2.5 kilograms outright and "fronting" him an additional 2.5 kilograms was performed to increase his ultimate sentence and constituted "sentencing entrapment." Finally, Batiste argues that the Court miscalculated the Sentencing Guidelines applicable to his offense. Batiste argues that by considering the 2.5 kilograms which he was "fronted" by the Government, the Court considered irrelevant conduct, in which Batiste alleges he was not directly involved. As such, Batiste submits that his sentencing guideline range was calculated by the Court to be much higher than it should have been.
The Government jointly addresses these additional arguments by asserting that they are procedurally barred. Because Batiste failed to appeal his sentence on these grounds, the Government argues that he is precluded from raising these issues of "claims of error" on collateral review unless he is able to show "cause and prejudice." The Government asserts that Batiste is unable to satisfy this strict standard because he cannot show any prejudice suffered as a result of his plea agreement and subsequent sentence.
A. Ineffective Assistance ...