Craig v. United States of America

Filing 10

MEMORANDUM OPINION and ORDER granting motion for 2255 relief; petitioner's sentence is hereby VACATED; separate order will be entered in the criminal case; dismissing case with prejudice. Signed by Judge L Scott Coogler on 11/10/2014. (KAM, )

FILED
2014 Nov-10 PM 02:19
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
DERRICK CRAIG,

)
)
Petitioner,
)
)
vs.
)
)
)
UNITED STATES OF AMERICA,)
)
Respondent.
)

2:14-CV-08029-LSC
(2:11-CR-0013-LSC-HGD-4)

MEMORANDUM OF OPINION AND ORDER
This is a motion to vacate and reimpose a sentence under 28 U.S.C. § 2255,
filed by Petitioner, Derrick Craig, with the assistance of counsel. For the following
reasons, the motion is due to be granted.
I.

Background
On August 29, 2011, Petitioner pled guilty to one count of Hobbs Act robbery,

in violation of 18 U.S.C. § 1951 (Count 14), and one count of brandishing a firearm
during a crime of violence, in violation of 18 U.S.C. § 924(c) (Count 15). As part of
his written plea agreement, Petitioner waived his rights to appeal his conviction and
sentence and to seek post-conviction collateral relief to challenge his sentence. He did,
however, reserve the right to contest “[a]ny sentence imposed in excess of the
applicable statutory maximum” and “[a]ny sentence that constitutes an upward

departure from the advisory guideline sentencing range calculated by the court at the
time the sentence is imposed.”
On January 25, 2012, Petitioner was sentenced by this Court to a total of 346
months imprisonment: 240 months as to Count 14 and 106 months as to Count 15,
each to run consecutively with the other. Judgment was entered on January 27, 2012.
Petitioner filed a pro se notice of appeal on June 26, 2013. The Eleventh Circuit
Court of Appeals appointed counsel for Petitioner on direct appeal. On July 8, 2014,
the Eleventh Circuit Court of Appeals granted the Government’s motion to dismiss
Petitioner’s appeal as untimely, but stated that it expressed no opinion as to what
determination the district court should make if presented with a § 2255 motion to
vacate and reimpose its sentence to permit a timely appeal.
Through the same appointed direct appeal counsel, Petitioner filed the instant
§ 2255 motion in this Court on June 3, 2014. The Court directed the Government to
show cause as to why Petitioner’s motion should not be granted. The Government
responded on October 29, 2014, agreeing with Petitioner that the motion should be
granted and that the Petitioner should be re-sentenced.
II.

The § 2255 Motion1 and the Government’s Response

1

The Court need not address whether the motion was timely filed under § 2255(f), which
sets forth the statute of limitations that applies to motions to vacate sentences filed pursuant to §
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The basis of Petitioner’s motion is that the Court miscalculated the United
States Sentencing Guidelines range for his offenses by adding 84 months to the
applicable guideline range of 262-327 months pursuant to the Career Offender
provisions found at U.S.S.G. § 4B1.1(c)(3). Petitioner also contends that the Court
erred at the sentencing hearing by upwardly departing from its erroneous calculation
by adding 22 additional months on the brandishing offense, resulting in a total of 106
months on that offense. Petitioner raises four ineffective assistance of trial counsel
claims in his petition: 1) trial counsel failed to object to the Court’s miscalculation of
the applicable Guidelines range; 2) trial counsel failed to object to the Court’s upward
departure on the sentence for the brandishing offense; 3) trial counsel failed to object
to the Government’s breach of the plea agreement;2 and 4) trial counsel failed to file
2255. Petitioner argued that the § 2255 motion is timely because it was filed within one year of
Petitioner discovering through the exercise of due diligence his attorney’s failure to prosecute his
appeal as he directed. Long v. United States, 626 F.3d 1167, 1169 (11th Cir. 2010) (“A § 2255
motion based on counsel’s failure to file a requested direct appeal is considered timely under §
2255(f)(4) if the movant files within one year of discovering, through the exercise of due
diligence, that counsel did not file the requested appeal.”). The Government does not challenge
that argument in its response, thus waiving the defense. See Holland v. Florida, 560 U.S. 631, 645
(2010) (“[T]he AEDPA ‘statute of limitations defense . . . is not jurisdictional.’ . . . It does not
set forth ‘an inflexible rule requiring dismissal whenever’ its ‘clock has run.’”) (quoting Day v.
McDonough, 547 U.S. 198, 205, 208 (2006)); see also Day, 547 U.S. at 213 (“We have repeatedly
stated that the enactment of time-limitation periods such as that in § 2244(d), without further
elaboration, produces defenses that are nonjurisdictional and thus subject to waiver and
forfeiture.”) (citing cases) (Scalia, J., dissenting).
2

This allegation is based on Petitioner’s underlying argument that the Government
breached its plea agreement with Petitioner by recommending a sentence that was 22 months
above the Court’s erroneously-calculated Guidelines range. The United States Probation Office
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a timely notice of appeal as directed. Petitioner requests that this Court vacate and
reimpose its sentence using the proper Guidelines range and permit Petitioner to
timely appeal his sentence of imprisonment.
As noted, the Government has responded to the motion. Contrary to the
position that it took at sentencing, the Government now agrees with Petitioner that
the appropriate Guidelines range for both offenses is a total of 262-327 months. The
Government requested that this Court re-sentence Petitioner, and stated that it will
recommend a low-end Guidelines range of 262 months imprisonment at resentencing.
III.

Conclusion
Having now carefully reviewed and considered the § 2255 motion and the

Government’s response to it, and having independently examined the entire record
in Petitioner’s criminal case, it is hereby ORDERED and ADJUDGED that the
motion for § 2255 relief be and hereby is GRANTED, and Petitioner’s sentence in
United States v. Craig, 2:11-cr-00013-LSC-HGD-4 (N.D. Ala.) is hereby VACATED.

and the Government agreed that the Guidelines range for Petitioner’s brandishing offense was 84
months. However, at sentencing, the Government recommended a sentence of 106 months.
Because the Government recommended an upward departure rather than the “low end” of the
Guidelines range as it had agreed to recommend, Petitioner argues that the Government
breached the agreement underlying his guilty plea, and trial counsel was ineffective for not
objecting on this ground.
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By separate order in Petitioner’s criminal case, the Court will set a new sentencing
hearing for the Petitioner. This action is DISMISSED WITH PREJUDICE.
Done this 10th day of November 2014.

L. Scott Coogler
United States District Judge
[160704]

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