Jackson v. United States of America
MEMORANDUM OPINION. Signed by Judge R David Proctor on 7/14/2017. (KAM, )
2017 Jul-14 PM 04:23
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
CARLOS LAMAR JACKSON,
UNITED STATES OF AMERICA,
Case No.: 2:16-cv-08151-RDP
This matter is before the court on Petitioner’s Motion to Vacate, Set Aside, or Correct
Sentence filed pursuant to 28 U.S.C. § 2255. (Doc. # 1). Petitioner, acting pro se, moves to
vacate, set aside, or correct the sentence he received in case 2:15-cr-84-RDP-HGD. After careful
review, the court concludes Petitioner’s claims are due to be denied and that the action be
dismissed with prejudice.
Petitioner was indicted on August 27, 2014 in an indictment charging him with illegal
possession of two firearms. See 7:14-cr-276-RDP-HGD (the “gun case”). While the gun case
was pending, Petitioner cooperated with the Government and provided information regarding a
bank fraud scheme in which he participated and for which he was charged. See 2:15-cr-84-RDPHGD (the “bank fraud case”). The Government reached a plea agreement with Petitioner in the
bank fraud case. Pursuant to that agreement, Petitioner agreed to enter a guilty plea to one count
of conspiracy to commit bank fraud and one count of aggravated identity theft in the bank fraud
case. (Doc. # 6-1 at p. 2).
The Government also agreed to proceed with the gun case and the bank fraud case
sentencing on the same date, and Petitioner was sentenced in both cases on September 28, 2015.
(Gun Case, Minute Entry on 9/28/2015; Bank Fraud Case, Minute Entry on 9/28/2015). The
Government moved for a downward departure in the gun case pursuant to 5K1.1 based on
Petitioner’s cooperation providing information regarding the bank fraud case. (Doc. # 6-1 at pp.
On September 28, 2015, the court granted the Government’s motion for downward
departure in the gun case, and sentenced Petitioner to a custodial sentence of 34 months as to
Count 1 and 36 months as to Count 2 to be served concurrent with any sentence imposed in the
bank fraud case. (Gun Case, Minute Entry on 9/28/2015). In the bank fraud case, the court
imposed a custodial sentence of 34 months as to Count 1 to be served concurrent with any
sentence imposed in the gun case and 24 months as to Count 2 to be served consecutive. (Bank
Fraud Case, Minute Entry on 9/28/2015). Accordingly, the total sentence imposed was 58
months for both cases.
In his Motion, Petitioner contends that he is entitled to relief because the Government did
not move for a sentence reduction, in spite of Petitioner’s cooperation. (Doc. # 1 at p. 4).
However, in his brief in support of his Motion, and in his reply brief, Petitioner argues that the
Government filed a motion for a downward departure based on his assistance, but did not inform
the court of the full extent of his cooperation. (Doc. # 2 at p. 4; Doc. # 11 at pp. 1-2). Petitioner
is not entitled to relief under either theory.
Analysis of Petitioner’s claim is muddied by the fact that Petitioner was sentenced in two
separate cases on the same day, and his cooperation in the gun case included a discussion of his
involvement in the bank fraud case. To be clear, in his motion, Petitioner identifies case number
2:15-cr-84-RDP-HGD-1 (the bank fraud case) as the case (and sentence) from which he seeks
relief in his Petition. (See Doc. # 1 at p. 1). However, because Petitioner does not clearly
delineate between the plea agreements entered in the separate cases and the different sentences
that he received, the court will give him the benefit of any doubt and address each of his
arguments, in turn.
Petitioner is Not Entitled to Relief Because of Any Failure to File a
Departure Motion in the Bank Fraud Case
While Petitioner and the Government entered a plea deal in the bank fraud case, that
agreement did not include a cooperation agreement or any other terms under which the
Government was obligated to file a motion for downward departure in that case. (See Doc. # 63). Accordingly, to the extent that Petitioner contends that the Government breached the plea
agreement by failing to file a motion for downward departure in the bank fraud case, he raises no
right to relief.
But even if Petitioner’s § 2255 motion could also be construed to seek relief based on the
Government’s failure to move for a sentence reduction in the bank fraud case, there is no basis
for awarding it.1 The Government has the discretion to move for a departure from the Guidelines
if a defendant “provided substantial assistance in the investigation or prosecution of another
person who has committed an offense. U.S.S.G. § 5K1.1; Wade v. United States, 504 U.S. 181,
185 (1992) (under § 5K1.1, the Government has a “power, not a duty, to file a motion when a
defendant has substantially assisted). Indeed, review of the Government’s decision not to file a
substantial assistance motion is limited to those cases which allege an unconstitutional motive.
Wade, 504 U.S. at 185-86 (reasoning that a prosecutor’s refusal to file a substantial assistance
motion because of the defendant’s race or religion could form the basis of an unconstitutional
The distinction between the two potential theories addressed above relates to the circumstances in which
the Government’s purported duty to move for a sentence reduction in the bank fraud case arises. As addressed
above, Petitioner’s § 2255 motion is due to be dismissed regardless of whether Petitioner contends that the
Government was obligated to file such a motion (1) based on its plea agreement or (2) due to some independent duty
arising from the Constitution or federal law.
motive); United States v. Nealy, 232 F.3d 825, 831 (11th Cir. 2000) (noting that Wade limited
the free exercise of the government’s discretion under § 5K1.1 only to the extent that the
government cannot exercise that discretion for an unconstitutional motive).
Here, Petitioner has not alleged that the Government had some unconstitutional motive
behind a decision not to file a substantial assistance motion in the bank fraud case. In fact,
Petitioner does not ascribe any motive to the Government at all. Instead, at best, his Petition can
be construed only to allege that he provided substantial assistance in the bank fraud case, but the
Government did not file a motion for downward departure in that case. This allegation does not
provide any basis for habeas relief for at least three reasons.
First, the plea agreement in the bank fraud case did not provide for a 5K1.1 motion to be
filed in that case. Thus, the Government was not contractually obligated to file such a motion.
Second, the agreement did not provide for filing of a motion under 18 U.S.C. § 3553(e) related to
the mandatory minimum sentence Petitioner faced with respect to Count 2 in the bank fraud case.
Absent such a motion, and even if a 5K1.1 motion had been filed, the court would not have had
the authority to depart below the 24 month mandatory minimum. United States v. Melton, No.
15-15738, 2017 WL 2926589, at *6 (11th Cir. July 10, 2017). Finally, even if a departure
motion had been filed in the bank fraud case and the court had departed under § 5K1.1, any
reduction in Petitioner’s sentence related to Count 1 in that case would not have reduced his
sentence (which was to be concurrently served) related to Count 1 in the gun case. In other
words, a § 5K1.1 departure in the bank fraud case would not have reduced the total time
Petitioner served in the bank fraud case and the gun case.
Petitioner is Not Entitled to Relief Because of Any Failure of the Government
to Properly Present the Departure Motion in the Gun Case
Petitioner’s briefing can also be construed to seek relief based on his plea agreement in
the gun case. In that case, Petitioner received a substantial assistance departure. The plea
agreement detailed the terms of Petitioner’s agreement to cooperate with the Government. (Doc.
# 6-2 at pp. 4-5). In exchange for such cooperation, the Government agreed to file a motion
requesting a downward departure – so long as Petitioner’s assistance rose to the level of
“substantial assistance.”2 (Id. at p. 5). And, Petitioner agreed “that the decision as to the degree
or extent of the downward departure requested, if any, also lies in the sole discretion of the
United States Attorney’s Office.” (Id. at p. 5).
In his briefing, Petitioner argues that the Government did not hold up its end of the plea
agreement, because at sentencing it did not fully inform the court of Petitioner’s cooperation.
Specifically, he contends that while the Government confirmed to the court that one third party
conviction had resulted from his cooperation, it did not inform the court of another arrest that
resulted because of his cooperation. (Doc. # 2 at p. 4). And, in his reply brief, Petitioner
acknowledges that the Government filed a substantial assistance motion in the gun case, but
contends that (1) his cooperation lead to the conviction of Tieuanekia Dates (in addition to the
convictions mentioned in the Government’s motion), yet (2) the Government did not tell the
In the Government’s Motion for Downward Departure, filed in the gun case on
September 25, 2015, it informed the court that:
This is consistent with Petitioner’s brief in support of his Motion, which contends that Assistant U.S.
Attorney Robin Mark “informed [Petitioner] that if he cooperated fully that she would recommend a sentence
reduction if the information was useful.” (Doc. # 2 at p. 3).
Petitioner concludes his reply brief by “requesting that the Government further move this Court for a
greater departure of his sentence due to the resulting conviction from his assistance.” (Doc. # 11 at p. 2).
The Defendant provided information and statements regarding the manner and
means of the scheme employed by the Defendant. These statements by the
Defendant verified information already known to the Government and
corroborated information provided by other witnesses. The Defendant was shown
numerous photographs of persons who were involved in the bank fraud scheme
and he was able to identify the persons and describe their involvement in the
scheme. Additionally, the Defendant identified one individual who purchased one
of the guns as a straw purchaser for the Defendant that was charged in the Gun
Case. The information provided by the Defendant has currently led to the
prosecution of two other defendants, (U.S. v. Brown, 2:15-cr-75) and (U.S. v.
Henry, 7:15-cr-300) and there are several other potential targets identified by the
Defendant that are still currently under investigation. The Defendant has
expressed a willingness to continue to cooperate with the Government.
(Doc. # 6-1 at pp. 7-8). As noted above, the Government has substantial discretion to elect
whether to file a motion for downward departure based on a defendant’s substantial assistance.
Wade, 504 U.S. at 185. In the gun case, the Government agreed to file a motion for downward
departure if Petitioner provided substantial assistance, but the Plea Agreement provided that “the
decision as to the degree or extent of the downward departure requested, if any, lies in the sole
discretion of the United States Attorney’s Office.” (Doc. # 6-2 at p. 5). Again, Petitioner does
not allege that the Government failed to file a substantial assistance motion in the gun case;
rather, he contends that the Government erred by not disclosing the full extent of his cooperation.
But that argument is off the mark.
To the extent that Petitioner’s Motion seeks relief based on the scope of his substantial
assistance motion in the gun case, it is due to be denied. Again, under a strict reading of his
pleadings, Petitioner’s Motion challenges only his conviction in the bank fraud case (2:15-cr-84RDP-HGD). Accordingly, under such a reading, his averments regarding the Government’s
conduct in the gun case -- the case in which the Government actually filed a substantial
assistance motion -- are beyond the scope of the present motion.
Moreover, even if the court could properly consider Petitioner’s contention that the
Government did not fully inform the court of Petitioner’s cooperation, that claim would not
warrant § 2255 relief. The Government may certainly enter into a plea deal which requires it to
provide the court with information about the full extent of a defendant’s cooperation. See United
States v. Mancilla, 226 F. App'x 941, 943 (11th Cir. 2007) (reviewing a plea agreement that
obligated the Government to make known the “nature and the extent” of the defendant’s
cooperation). But, here, the Plea Agreement in the gun case vested the Government with
discretion regarding the degree or extent of any downward departure requested. (Doc. # 6-2 at p.
5). Accordingly, Petitioner’s contention that the Government informed the court of some, but
not all, of his assistance during the gun case sentencing does not warrant habeas relief on a
“breach of plea agreement” theory.4
In addition, Petitioner contends in his reply brief that the Government failed to inform the
court that his cooperation led to the conviction of Tieuanekia Dates (1:16-cr-14-RDP-HGD).
The Government filed its Motion for Downward Departure in the gun case on September 25,
(7:14-cr-276-RDP-HGD, Doc. # 22).
The sentencing hearing was conducted on
September 28, 2015. Dates was charged by an Information and entered a Plea Agreement on
January 27, 2016. (1:16-cr-14-RDP-HGD, Docs. # 1, 2). Accordingly, the Government could
not have informed the court about Dates’s conviction prior to Petitioner’s sentencing. Further,
Petitioner has not alleged any reason to believe that the Government’s representation in its
Our Circuit has addressed similar arguments in cases on direct appeal. United States v. Loaiza–Quintana,
655 F. App'x 763, 764 (11th Cir. 2016) (finding that, even if the Government insufficiently informed the district
court of the nature and extent of the defendant’s cooperation, the defendant’s substantial rights were not affected
because the district court generally knew that the defendant cooperated with law enforcement and credited the
defendant with a downward variance); United States v. Martin, 441 F. App'x 698, 703 (11th Cir. 2011) (finding that
any failure to advise the court of the extent of the defendant’s cooperation did not affect the defendant’s substantial
rights where the plea agreement and factual proffer were part of the record for the district court’s review). This
reasoning is similarly relevant in the § 2255 context, and Petitioner’s contention that the Government informed the
court of some, but not all, of his cooperation does not warrant relief here.
substantial assistance motion that “there are several other potential targets identified by the
Defendant that are still currently under investigation” was false.
Finally, relief under § 2255 is reserved for those who claim:
the right to be released upon the ground that the sentence was imposed in
violation of the Constitution or laws of the United States, or that the court was
without jurisdiction to impose such sentence, or that the sentence was in excess of
the maximum authorized by law, or is otherwise subject to collateral attack
28 U.S.C. § 2255. While Dates was convicted after Petitioner received his sentence, this simply
does not entitle Petitioner to a new sentence or habeas relief. The Government informed the
court that further investigations -- informed by Petitioner’s cooperation -- were ongoing at the
time of his sentencing. It was not obligated by the Plea Agreement (or the laws of the United
States) to return to this court and file a second motion for a downward departure now the
Government has secured another conviction based, in part, on Petitioner’s cooperation.
While not mentioned in his Petition, the court notes that Federal Rule of Criminal
Procedure 35 provides Petitioner no relief. Rule 35(a) allows the court to correct an arithmetical,
technical, or other clear error within fourteen days after sentencing. Here, Petitioner has not
alleged any clear error in his original sentence, and his Petition was filed more than fourteen
days after his sentencing. Moreover, Petitioner is not entitled to relief under Rule 35(b). Rule
35(b)(1) provides that the Government may move the court to reduce a sentence if the defendant
provided substantial assistance in prosecuting another person if the assistance occurred after
sentencing. Fed. R. Crim. P. 35(b)(1). In his briefing, Petitioner contends that he provided the
Government with information on two separate occasions, both before he was sentenced. (Doc. #
2 at pp. 3-4). Dates was not convicted until after he was sentenced, so there is at least a
substantial question as to whether the Government would even be permitted to file a motion for a
sentence reduction under Rule 35(b) based on that development. Petitioner has not alleged that
he provided any assistance after he received his sentence.
Petitioner’s Other Motions are Due to be Denied
Since filing his § 2255 Motion, Petitioner has filed a Motion seeking an evidentiary
hearing and appointment of an attorney (Doc. # 12) and a separate Motion (Doc. # 13) requesting
the court to enter an order regarding that earlier motion. Petitioner argues that he has set forth
facts which, if true, would entitle him to relief. (Doc. # 12 at p. 2). For the reasons stated above,
the court disagrees. Petitioner’s request for an evidentiary hearing is due to be denied because
on the face of his Petition and the record in these two cases he is not entitled to relief. No
evidence produced at a hearing would change that result. Finally, a plaintiff in a civil case has
no constitutional right to counsel,” Bass v. Perrin, 170 F.3d 1312, 1320 (11th Cir. 1999), and the
appointment of counsel “is a privilege that is justified only by exceptional circumstances, such as
where the facts and legal issues are so novel or complex as to require the assistance of a trained
practitioner,” Fowler v. Jones, 899 F.2d 1088, 1096 (11th Cir. 1990). No such circumstances are
present here. Accordingly, Petitioner’s request for counsel is due to be denied.
Petitioner’s May 10, 2017 Motion requests a “response” to his previously filed Motion
(Doc. # 12).
The court has addressed Petitioner’s April 5, 2017 Motion in this opinion.
Accordingly, Petitioner’s May 10, 2017 Motion is due to be administratively terminated as moot.
For the reasons stated above, Petitioner’s Motions (Docs. # 1, 12) are due to be denied,
and his Motion (Doc. # 13) is due to be administratively terminated as moot. A separate order
will be entered.
DONE and ORDERED this July 14, 2017.
R. DAVID PROCTOR
UNITED STATES DISTRICT JUDGE
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