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United States v. Brown

United States District Court, E.D. Louisiana

July 6, 2017


         SECTION: “J” (2)



         Before the Court is a Motion for Post-Conviction Relief (Rec. Doc. 244) filed pro se by Andrew Brown (“Petitioner”), an opposition thereto (Rec. Doc. 255) filed by the United States of America, and a reply by Petitioner (Rec. Doc. 267). Having considered the motion and legal memoranda, the record, and the applicable law, the Court finds that the motion should be DENIED.


         On October 18, 2013, a grand jury returned a superseding indictment against Petitioner and five co-defendants. The superseding indictment charged Petitioner with conspiracy to distribute five kilograms or more of cocaine hydrochloride and distribution of 500 grams or more of cocaine hydrochloride. The case was assigned to another section of this Court.

         On July 16, 2014, Petitioner pleaded guilty to distribution of 500 grams or more of cocaine hydrochloride pursuant to a written, signed plea agreement and the Court conditionally accepted the guilty plea. The plea agreement stipulated that the government would move to dismiss the charge of conspiracy to distribute five kilograms or more of cocaine hydrochloride. It also stipulated that the Government would not file a bill of information under 21 U.S.C. § 851 alleging that Petitioner had a prior felony drug conviction which, if filed, would have resulted in a mandatory minimum sentence of at least twenty years imprisonment. See 21 U.S.C. § 841(b)(1)(A), 851. Petitioner acknowledged that he understood the maximum penalties he faced in the signed plea agreement. The plea agreement provided that Petitioner waived any right to challenge his sentence collaterally unless he could establish that ineffective assistance of counsel “directly affected the validity of this waiver of appeal and collateral challenge rights or the validity of the guilty plea itself.” (Rec. Doc. 107 at 2-3.)

         On October 16, 2014, Petitioner's probation officer submitted a Presentence Investigation Report (“PSR”) that held Petitioner accountable for 6, 061 grams of cocaine. This amount was based on three separate events detailed in the factual basis, which Petitioner signed the same day he signed the plea agreement. The first incident highlighted in the factual basis was possession with the intent to distribute 2, 061 grams of cocaine which law enforcement seized on August 8, 2013. The factual basis also states that Petitioner acknowledged that on October 24, 2012 he purchased and transported approximately two kilograms of cocaine. Finally, the factual basis states that Petitioner acknowledged that on December 26, 2012 he unsuccessfully attempted to transport another two kilograms of cocaine. Petitioner's counsel, Mrs. Valerie Jusselin, submitted written objections to the PSR. One such objection addressed the amount of cocaine for which the PSR held Petitioner responsible. In particular, Petitioner's counsel objected to the inclusion of the attempted purchase of 2, 000 grams of cocaine.

         At the sentencing hearing held on October 22, 2014, the Court sustained Petitioner's objection to the inclusion of the cocaine in the PSR for the attempted purchase. As a result, Petitioner was only held responsible for 4, 041 grams of cocaine. This changed Petitioner's total offense level and reduced his sentencing guidelines. Petitioner's counsel also objected to a guideline enhancement for Petitioner's leadership role made pursuant to U.S.S.G. § 3B1.1(b) but the Court overruled this objection. Petitioner then affirmed his understanding of the maximum penalties he faced and did not raise any issues as to the facts of the case or the effectiveness of his counsel. The Court accepted Petitioner's guilty plea and sentenced him to 97 months imprisonment. Petitioner subsequently appealed the judgment of conviction and sentence and the Fifth Circuit dismissed the appeal. Petitioner then filed a petition for writ of certiorari which the Supreme Court denied. On March 14, 2016, the case was reassigned to this section of the Court.

         Petitioner now brings the instant motion pursuant to 28 U.S.C. § 2255, which allows the Court to provide post-conviction relief. Petitioner claims that his counsel's deficient performance prejudiced his defense prior to and at the time of his sentencing. The government filed an opposition and Petitioner filed a reply.


         Petitioner alleges that he was denied effective assistance of counsel prior to and at the time of sentencing for four reasons. First, he argues his sentence was improperly enhanced because his counsel failed to challenge the amount of drugs in the PSR used to calculate his guideline range. Second, Petitioner contends that his counsel failed to contest the guideline enhancement he received for his leadership role even though the government dropped the conspiracy charge. Third, Petitioner claims that his counsel was ineffective for failing to present him with a copy of a revised version of his PSR prior to the date of sentencing. Finally, Petitioner argues that his counsel did not fully investigate his case. Petitioner argues that due diligence would have revealed that he was eligible for the U.S.S.G. § 2D1.1(b)(17) safety-valve reduction. Although Petitioner acknowledges that he informed the Court at sentencing that he was satisfied with his counsel and confirmed that all the alleged facts were correct, he avers that he was only acting pursuant to his counsel's instructions.

         The government argues that Petitioner's ineffective assistance of counsel claim should be dismissed because Petitioner did not contend that his counsel's ineffectiveness impacted the knowingness or voluntariness of his waiver of post-conviction relief. The government also argues that Petitioner's substantive claims lack merit. The government argues that Petitioner's first claim is meritless because his counsel's advocacy prevented the government from holding Petitioner liable for 6, 061 grams of cocaine. Second, the government disputes Petitioner's claim that his counsel failed to object to the leadership role sentencing enhancement, noting that the transcript of the sentencing hearing clearly indicates that Petitioner's counsel did make the objection. The government responds Petitioner's third claim by noting that he had all the benefits of reviewing the PSR prior to and at the time of sentencing. Finally, the government states that Petitioner is ineligible for a two point reduction pursuant to U.S.S.G. § 2D1.1(17) because he failed to meet the statutory requirements for such a reduction.


         Section 2255 provides that a federal prisoner serving a court-imposed sentence may move the court that imposed the sentence to vacate, set aside or correct the sentence. 28 U.S.C. § 2255(a). Only a narrow set of claims are cognizable on a section 2255 motion. The statute identifies four bases on which a motion may be made: (1) the sentence was imposed in violation of the Constitution or laws of the United States; (2) the court was without jurisdiction to impose the sentence; (3) the sentence exceeds the statutory maximum sentence; or (4) the sentence is “otherwise subject to collateral attack.” Id. A claim of error that is neither constitutional nor jurisdictional is not cognizable in a section 2255 proceeding unless the error constitutes “a ...

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