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United States v. Barnes

United States District Court, W.D. Louisiana, Shreveport Division

May 30, 2017

UNTIED STATES OF AMERICA
v.
MAYO BARNES

          HORNSBY MAGISTRATE JUDGE

          MEMORANDUM RULING

          ELIZABETH E. FOOTE UNITED STATES DISTRICT JUDGE.

         Before the Court is a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 [Record Documents 498, 516, 517, &.543], [1] filed by defendant Mayo Barnes ("Barnes"). The United States responded to the motion [Record Document 521], and Barnes filed a reply thereto [Record Document 525]. For the following reasons, the motion is DENIED.[2]

         BACKGROUND

         On July 29, 2011, a grand jury in the Western District of Louisiana returned a fourteen-count indictment charging eleven defendants, including Barnes, with various drug offenses. Record Document 14. Barnes was named in Counts One (conspiracy to possess with intent to distribute methamphetamine) and Fourteen (possession with intent to distribute methamphetamine). Attorney Paul Carmouche ("Mr. Carmouche") was appointed to represent Barnes. Record Documents 6 & 11.

         I. Guilty Plea.

         On December 5, 2011, with the advice of Mr. Carmouche and pursuant to a plea agreement, Barnes pled guilty to Count Fourteen. Record Documents 198 & 199. During the guilty plea colloquy, the Court engaged in the following exchange with Barnes:

The Court: And, sir, could you tell me in your own words what you believe you are charged with in the indictment?
The Defendant: Possessing methamphetamine.
The Court: And it's possession with intent to distribute to distribute [sic]; did you understand that?
The Defendant: Yes, ma'am, I understood that.
The Court: What about the amount, the 50 grams? Do you agree that that's the amount?
The Defendant: Yes, ma'am.
The Court: Okay. How do you wish, sir, to plead in this matter?
The Defendant: Guilty. Record Document 378, pp. 4-5.

         Hank Haynes, a Louisiana State Trooper assigned to the DEA Task Force ("Trooper Haynes"), testified to the factual basis necessary to support the guilty plea. He explained that Barnes's co-defendant, Lauralyn Thompson ("Thompson"), began cooperating with authorities in this drug investigation. IcL. at p. 6. Thompson ordered a half pound of methamphetamine from co-defendants Dwight Moody ("Moody") and Terry Pimpleton ("Pimpleton"). 14 at pp. 6 & 9. Moody, in turn, hired Barnes to travel via Greyhound bus from Shreveport, Louisiana, to Dallas, Texas to obtain the methamphetamine from Pimpleton and then to bring the methamphetamine back to Shreveport. Id. at pp. 9-10 Upon Barnes's arrival in Shreveport, Pimpleton picked up Barnes and the drugs from the Greyhound bus station. Id. at p. 10. At the guilty plea hearing, Barnes agreed that Trooper Haynes's factual recitation, outlined above, was correct. Id. at p. 11. Barnes agreed that the quantity of methamphetamine was fifty grams or more. When asked whether he was pleading guilty because he was, in fact, guilty as charged, Barnes responded, "Yes, ma'am." Id. at p. 17. He answered the same way when asked whether his guilty plea was "a free and voluntary act on your part done with the advice and consent of Mr. Carmouche." Id.

         With respect to the penalty he was facing, Barnes knew that Count Fourteen carried a mandatory minimum sentence of ten years. Record Document 199, p. 2; Record Document 378, pp. 19-20. Further, Mr. Carmouche stated at the guilty plea hearing, "Your Honor, under Section D of the plea agreement, we discussed the fact that this is a 10 to life sentence. And Mr. Barnes and I- and of course that part, we discussed that. You know, there is always a chance, always, that he could have a chance to get the safety valve and that- and hopefully he wouldn't have to do at least that minimum 10 years in jail. But that all comes after the presentence investigation and the entirety of the report." Record Document 378, p. 19. At the conclusion of the hearing, the Court accepted Barnes's guilty plea to Count Fourteen.

         II. Sentencing.

         The United States Probation Office prepared a Presentence Investigation Report ("PSR") to which Mr. Carmouche made a number of objections. At the sentencing hearing on May 3, 2012, he objected to the PSR assessing Barnes with five criminal history points, noting that two of those points resulted from misdemeanors and should not be counted, while another point stemmed from conduct to which Barnes allegedly pled guilty only to be released from jail. Barnes's additional two points resulted from the fact that he was on probation when he committed the instant methamphetamine offense. The Court overruled the defense's objection to the points allocated for the misdemeanor convictions, and also explained that it would not allow the defense to collaterally attack Barnes's felony conviction. Thus, the Court found that Barnes had five criminal history points, and it overruled the defense's objection to the criminal history score. Id, at p. 11.

         The criminal history score rendered Barnes ineligible for the safety valve, although Mr. Carmouche nevertheless urged the Court to apply the safety valve. In opposition to the defense's argument, the Government stated,

The Government's position is, is that the criminal history points that are given by the Probation Office and that are not rebutted under this record make [Barnes] ineligible for the safety valve by statute. And since the statute requires the sentence to be imposed, that's it. That's the Government's position; it's plain and simple. The 10-year mandatory minimum must be applied unless the statutory criteria are met. Because of the criminal history, he cannot meet the statutory criteria. That's the Government's position.

Id, at p. 13. The Court agreed, explaining

The Court notes for the record, that as previously stated, that the • charge to which Mr. Barnes pled is a charge which carries a mandatory minimum sentence of 10 years. The only way that the Court can get out of imposing that 10-year sentence on Mr. Barnes is if in fact Mr. Barnes was safety valve eligible. The Court holds that Mr. Barnes is not safety valve eligible based on the wording of the statute, that he has a criminal history category of III.
And, Mr. Barnes, there is nothing I can do about that.

Id. at p. 13.[3]

         At the sentencing hearing, Trooper Haynes explained that agents, working with cooperating co-defendant Thompson, ordered the methamphetamine that Barnes ultimately obtained from Dallas: "we ordered it from Mr. Pimpleton. We had Lauralyn Thompson . . . working under our direction at that time." Record Document 379, p. 23. Trooper Haynes established through his testimony that two different packages of methamphetamine were secured from Pimpleton. One package, which was hidden behind an ice machine at Boomtown Casino, stemmed from Thompson's order, while the other package, which was hidden in Pimpleton's rental vehicle, was intended to be delivered to Winnfield, Louisiana to sell to others. Id, at 23-24. The package found at Boomtown Casino contained 168.9 grams of actual methamphetamine, while the package found in the rental vehicle contained 137.3 grams of actual methamphetamine. Id. at p. 21, 24.

         The PSR held Barnes accountable for only 168.9 actual grams of methamphetamine.[4] Record Document 281, p. 5, ¶ 24. Mr. Carmouche objected that Barnes pled guilty to only fifty grams of methamphetamine, implying that Barnes should not be held responsible for morethan fifty grams of methamphetamine.[5] However, as the record confirms, Barnes pled guilty to fifty grams or more of methamphetamine. Under Title 21, it is the fifty grams itself that triggers the ten year mandatory minimum sentence. This distinction of whether Barnes was held accountable for more than fifty grams at sentencing is not critical to the matter before the Court, as Barnes's § 2255 does not challenge his Guideline calculation or the resultant Guideline range. Instead, it attacks the mandatory minimum sentence which was triggered by his possession with intent to distribute at least fifty grams of methamphetamine. Significantly, Barnes has never disputed that the weight of the drugs he transported from Dallas to Shreveport was at least fifty grams.

         In its calculation of the Guideline range, the Court found that Barnes began with a level 34, which corresponded to between 150 and 500 grams of actual methamphetamine. The offense level was reduced by four for Barnes's limited role in the offense, and reduced another three levels based on his acceptance of responsibility, resulting in a total offense level of 27. With a total offense level of 27 and a criminal history level III, Barnes's guideline range was 87-108 months. The Court imposed the mandatory minimum sentence of 120 months, but noted that that sentence did not reflect Barnes's overall minimal culpability in the overall conspiracy. Id. at p. 31.

         III. Appeal.

         Barnes timely filed a notice of appeal. [Record Document 308]. Barnes argued on appeal that the Government breached the plea agreement by failing to file a U.S.S.G. § 5K1.1 motion for downward departure based on his substantial assistance. See Record Document 455, pp. 2-3. The Fifth Circuit dismissed this argument, finding that the plea agreement did not require the Government to file a substantial assistance motion, that the possibility of a downward departure did not induce Barnes to plead guilty, and also that the record revealed the only real discussions counsel had about any downward departures involved Barnes's possible eligibility for the safety valve. Id. at pp. 3-4. The court held that the Government did not breach the plea agreement by failing to file a § 5K1.1 motion. Id. at p. 7.

         Barnes's appeal also lodged the "novel claim" that the Attorney General's August 12, 2013 Memorandum, entitled "Department Policy on Charging Mandatory Minimum Sentences and Recidivist Enhancements in Certain Drug Cases, " (the "August 12 Memorandum") entitled him to relief from his sentence. Id. In cases in which a defendant met certain criteria, the August 12 Memorandum allowed prosecutors to decline to charge defendants with drug quantities that would trigger a mandatory minimum sentence. Id. The Fifth Circuit disagreed with Barnes's contention that he was entitled to a sentence reduction under the August 12 Memorandum, finding that even if it assumed Barnes met the criteria enunciated by the Attorney General, the policy was not applicable to defendants who were already convicted and sentenced. Id. Further, the court noted that the Memorandum itself expressed that it did not create or confer any rights, privileges, or benefits. Id. Accordingly, Barnes was not entitled to any appellate relief or sentencing reduction on the basis of the August 12 Memorandum. Id. The Fifth Circuit affirmed this Court's judgment. Id.

         IV. The Instant § 2255.

         On December 16, 2014, Barnes timely filed the instant motion under 28 U.S.C. § 2255.[6] Barnes's petition, which has been amended a number of times, asserts the following grounds for relief, all based on ineffective assistance of counsel. [Record Documents 498, 516, 517, & 543]. First, as to Mr. Carmouche, Barnes claims that he provided ineffective assistance by (1) advising him to enter into a plea agreement when he was not guilty of the charges against him; (2) failing to secure a "binding" plea agreement in which the Government would have agreed either not to apply the mandatory minimum to Barnes at sentencing, or it would have filed a substantial assistance motion under 18 U.S.C. § 3553(e), which would have authorized the Court to sentence Barnes without regard to the mandatory minimum; (3) advising him to enter into a plea agreement when Mr. Carmouche should have asserted the defense of entrapment; and (4) failing to review the presentence report with Barnes. Second, as to Barnes's appellate counsel, Ms. Elizabeth Dougherty ("Ms. Dougherty"), Barnes claims that she was ineffective in (1) frivolously arguing on appeal that the Government breached the plea agreement; and (2) failing to seek a limited remand to the district court.

         LAW ...


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