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United States v. Jones

United States District Court, E.D. Louisiana

September 5, 2017

UNITED STATES OF AMERICA
v.
DONALD JONES, JR.

         SECTION: “B”

          ORDER AND REASONS

         Before this Court is Petitioner Donald Jones, Jr.'s “Motion to Vacate, Set Aside or Correct Sentence Pursuant to 28 U.S.C. § 2255.” Rec. Doc. 192. Petitioner requests vacating his sentence as to Counts 1 and 2 of the indictment and remand for resentencing, or in the alternative grant an evidentiary hearing. Id. at 26. The government has filed its “Memorandum in Opposition to Defendant's Petition for Relief Pursuant to Title 28 U.S.C. § 2255.” Rec. Doc. 194. For the reasons outlined below

         IT IS ORDERED that the request for an evidentiary hearing is DENIED as unnecessary due to completeness of the record;

         IT IS FURTHER ORDERED that Petitioner's motion to vacate the sentence is DENIED.

         FACTUAL BACKGROUND AND PROCEDURAL HISTORY

         On January 7, 2015, this Court sentenced Petitioner to one hundred eighty months imprisonment after he pled guilty to Counts 1, 5, and 7 of his indictment, namely: one count of violating 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A) for conspiracy to distribute and possess with intent to distribute five kilograms or more of cocaine hydrochloride; one count of violating 21 U.S.C. § 841(a)(1) and 841(b)(1)(B) for possession with intent to distribute five hundred grams or more of cocaine hydrochloride, a quantity of cocaine base, and one hundred grams or more of heroin; and one count of violating 18 U.S.C. § 924(c)(1)(A)(i) for possession of firearms in furtherance of a drug trafficking crime. Rec. Doc. 143. Petitioner was sentenced to one hundred twenty months imprisonment as to Count 1 of his guilty plea, seventy-eight months imprisonment as to Count 5, and sixty months imprisonment as to Count 7. Id. at 3. This Court ordered Petitioner's sentences to run consecutively with credit for time served. Id.

         On January 20, 2015, Petitioner appealed his sentence for the conspiracy charge, Count 1, alleging that the district court erred by applying the mandatory minimum sentence of one hundred twenty months imprisonment to that charge. Rec. Doc. 144. The United States Court of Appeals for the Fifth Circuit affirmed Petitioner's sentence on October 5, 2015, finding that the mandatory minimum for Petitioner's conspiracy charge was correctly applied since Petitioner should be held responsible for the quantity of drugs handled by the conspiracy as a whole. Rec. Doc. 185.

         PETITIONER'S REQUEST

         On January 18, 2017 Petitioner filed the instant motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. Rec. Doc. 192. He asserts two grounds for relief. First, he contends that due to ineffective assistance of counsel his guilty plea as to Count 1 was involuntary and should be set aside. Id. at 15. Second, he alleges that the Court illegally sentenced him to Count 2 of the indictment, to which he did not plead guilty, and thus his sentence as to Counts 1 and 2 amounts to a miscarriage of justice. Id. at 21.

         In support of his first claim that his guilty plea was involuntary, Petitioner alleges that his counsel failed to adequately examine the record and advise Petitioner that the combined quantity of cocaine hydrochloride seized from an SUV and Petitioner's home, along with the amount that Petitioner sold to an informant, did not add up to five kilograms, the minimum volume required by his Count 1 conspiracy charge. Id. at 18. Because Petitioner relied on his attorney's advice in pleading guilty to that charge, Petitioner asserts that his guilty plea was involuntary. Id. In support of his second claim that he was illegally sentenced to Count 2 rather than Count 5 of his indictment, Petitioner cites a misstatement by the Court during his sentencing proceedings in which the Court referred to Count 2 rather than Count 5. Id. at 23. Petitioner asserts that because the Court sentenced him to Count 2 rather than Count 5, his sentence is a miscarriage of justice and thus his sentences for Counts 1 and 2 should be vacated and remanded for resentencing. Id. at 26.

         THE GOVERNMENT'S RESPONSE

         In opposition, the Government argues that Petitioner is not entitled to relief pursuant to § 2255 because (1) his counsel was not ineffective and (2) Petitioner is barred from raising his claim that he was sentenced to Count 2 because he did not raise the claim on direct appeal. Rec. Doc. 194 at 1-2. The Government asserts that Petitioner's counsel was effective because the drug quantity seized from the SUV referenced in Petitioner's Presentence Report contained an error in decimal placement and thus Counsel's advice on the quantity seized was correct. Id. at 5. The amount of cocaine seized from the SUV amounted to a net weight of 4, 923 grams rather than the erroneous 492.3 grams reflected in the Presentence Report. Id. The Government also contends that even if Petitioner could prove that his counsel's failure to notice the mistake amounted to ineffective assistance of counsel, Petitioner cannot prove that he was prejudiced by that failure because a conspiracy charge does not require that Petitioner be held responsible only for the drugs in his possession. Id. at 5-6.

         In support of its second objection that Petitioner cannot raise a new claim under a § 2255 motion, the Government contends that Petitioner cannot demonstrate both “cause and prejudice” as required for claims of error not raised on direct appeal. Id. at 6-7. The Government asserts that Petitioner cannot show cause excusing his procedural default because Petitioner's counsel did not commit a procedural default by failing to object to the Court's singular misstatement. Id. Because the Court referred to the correct count during the rest of Petitioner's sentencing, the plea agreement referred to the correct charges, and the correct charges were discussed during Petitioner's rearraignment, Petitioner's counsel did not err when he failed to subsequently raise the issue. Id. at 7-8. Nor can Petitioner show prejudice from the misstatement because he received a sentence for Count 5, not Count 2. Id. at 8.

         LAW ...


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