Brand v. United States of America

Filing 28

ORDER overruling 27 --objections to report and recommendation; adopting 26 --report and recommendation; denying relief on Brand's claim that former counsel rendered ineffective assistance by not appealing; directing the United States to s how cause by 8/17/2015 why relief should not be granted on the remaining claims; permitting a reply by the latter of 9/21/2015 or thirty days from the United States' response. Signed by Judge Steven D. Merryday on 7/1/2015. (BK)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

UNITED STATES OF AMERICA
v.

CASE NO. 8:11-cr-380-T-23AEP
8:13-cv-2103-T-23AEP

ZAVIEN BRAND
/
ORDER
Brand moves to vacate his sentence under 28 U.S.C. § 2255. (Doc. 1) The
earlier order (Doc. 15) refers to the magistrate judge Brand’s claim that his counsel
failed to appeal. Based on evidence presented during an evidentiary hearing, the
magistrate judge issued his report and recommendation. (Doc. 26) Brand objects
(Doc. 27) to the report and recommendation and requests that the district court
reconsider Brand’s claim that counsel failed to appeal.
Report and Recommendation:
The magistrate judge’s thorough report includes the following recitation of
facts from the evidentiary hearing and findings based on those facts:
1.

Brand was charged in a fourteen count superceding indictment for his

involvement in a series of incidents where (1) he possessed firearms and ammunition
and (2) he sold firearms and cocaine base to an undercover officer. More specifically,
Brand faced six counts of distribution of cocaine base, four counts of being a felon in

possession of a firearm, and four counts of possessing a firearm in furtherance of a
drug crime. Brand pleaded guilty to ten of the counts without the benefit of a plea
agreement but he was permitted to withdraw his guilty plea to one of the counts. The
magistrate judge determined that “in return for the United States’ agreement to
dismiss ‘all unresolved counts,’ Brand later elected to plead guilty pursuant to a plea
agreement to Count Fourteen.” (Doc. 26 at 2) As a consequence, Brand pleaded
guilty to four counts of distribution of cocaine base, four counts of being a felon in
possession of a firearm, and two counts of possessing a firearm in furtherance of a
drug trafficking crime.
2.

Brand was sentenced (1) to concurrent terms of imprisonment for one

year on eight of the counts, (2) to a minimum mandatory consecutive term of
imprisonment for five years, and (3) to a minimum mandatory consecutive term of
imprisonment for twenty-five years, for a total of 372 months.
3.

Under the terms of the plea agreement Brand waived his right to appeal

his sentence or to challenge it collaterally.
4.

Recognizing that the relevant claim hinges on the comparative credibility

of Brand and his former counsel, the magistrate judge finds Brand not credible and
finds his former counsel credible (Doc. 26 at 8):
Brand testified in no uncertain terms that he instructed [former
counsel] to file an appeal, while on the other hand, former
counsel] testified unequivocally that Brand never instructed him
to file an appeal, but rather directed him not to file an appeal. If
Brand’s testimony was accepted by the Court, that evidence
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would be sufficient to warrant the granting of his belated appeal.
However, I cannot accept Brand’s testimony and evidence
because I find it not credible for several reasons.

5.

As stated in the report and recommendation, former trial counsel

explained the defense’s strategy for initially pleading guilty to only some of the
counts (Doc. 26 at 5S6):
[Former counsel] explained that the strategy was for Brand to
plead guilty to Counts One through Five, Seven, Nine, Ten,
Twelve and Thirteen, but take to trial Counts Six, Eight, Eleven,
and Fourteen. [Former counsel] emphasized that the primary
concerns were the three pending Section 924(c)(1)(A) charges in
Counts Eight, Eleven and Fourteen because combined they could
have exposed Brand to a minimum mandatory sentence of
seventy-five years imprisonment to run consecutive to any other
term of imprisonment imposed. Thus, [former counsel] detailed
that the plan was to emphasize to a jury that Brand pled guilty to
those charges he was in fact guilty of, but that he was not guilty of
the remaining Section 924(c)(1)(A) charges. [Former counsel]
further stated that the defense was going to be that because Brand
only brought the guns at issue to the transactions at the
undercover agent’s request in order to sell them to the undercover
agent, then he could not be guilty under Section 924(c)(1)(A) as
the guns were not in furtherance of the drug transactions.
However, despite this defense, [former counsel] testified that
Brand later decided to plead guilty because he wanted to try to
cooperate with the Government in hopes of reducing his sentence.
[Former counsel] described that in return for Brand pleading
guilty to Count Fourteen pursuant to the plea agreement, the
Government agreed to allow Brand to cooperate; to withdraw his
plea to Count Twelve, which carried a mandatory minimum
sentence of five years’ imprisonment; and to dismiss the
remaining Section 924(c)(1)(A) charges in Counts Eight and
Eleven.

6.

The magistrate judge found that former counsel’s testimony that Brand

did not want to appeal is supported by counsel’s contemporaneously maintained
notes.
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7.

The magistrate judge credits former counsel’s testimony and rejects

Brand’s testimony ((Doc. 26 at 9S10):
Contrary to Brand’s testimony, I find it more plausible that after
many consultations with [former counsel], Brand decided to plead
guilty pursuant to the written plea agreement to avoid the
potential exposure of a devastating sentence in conjunction with
the additional Section 924(c)(1)(A) charges, and further hoped to
reduce through cooperation with the Government whatever
sentence he would receive from the Court on the remaining
charges. Thus, I find it more plausible that when [former counsel]
met with Brand on August 22, 2012, Brand told [former counsel]
not to file an appeal because Brand was still hoping to reduce his
sentence through cooperation, and did not want to disturb the
possibility of a reduction in his sentence by filing an appeal
contrary to the plea agreement. Given the above, I find it simply
inconceivable that Brand instructed [former counsel] to file an
appeal, and [former counsel] disregarded his instructions.

Brand’s Objections:
Brand disagrees with the magistrate judge’s finding that Brand pleaded guilty to
avoid a “devastating sentence” (Doc. 27, ¶ 8 at 2):
Mr. Brand comes before this Court with an aggregate sentence at
372 months. The practical implications that Mr. Brand would
have been concerned about a potentially devastating sentence in
this case is not well taken by the Defendant since an over 30-year
prison sentence is, in and of itself, devastating.

To summarize his argument, Brand contends (1) that the appeal waiver in the
plea agreement should be restricted to only the count that was the subject of the plea
agreement and (2) that he was not precluded from appealing the sentences for the
other counts. (Doc. 27, ¶ 12 at 3)

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Brand cites no authority to support his argument. Moreover, the decision to
enter into a plea agreement after pleading guilty to several counts without the benefit
of a plea agreement is supported by former counsel’s explanation of the defense’s
strategy, which changed when Brand changed his mind because he hoped to reduce
his sentence by cooperating with the United States. Under the terms of the plea
agreement the United States dismissed additional counts (including two counts that
carried a minimum mandatory term of twenty-five years’ imprisonment), allowed
Brand to withdraw the guilty plea to a count that was not the subject of the plea
agreement, and agreed to allow Brand to cooperate in hopes of reducing his sentence.
The plea agreement — including the requisite appeal waiver — was part of a package
both to resolve all of Brand’s charges and to limit Brand’s potential sentence.
Based on a credibility determination, the magistrate judge credits the testimony
of Brand’s former counsel and rejects Brand’s testimony. Louis v. Blackburn, 630 F.2d
1105, 1109 (5th Cir. 1980), instructs that “the district judge should not enter an order
inconsistent with the credibility choices made by the magistrate without personally
hearing the live testimony of the witnesses whose testimony is determinative.”
Nothing about the magistrate judge’s hearing, the issues, the content of the
testimony, the reasonableness of the factual findings, or any other aspect of the report
and recommendation raises a doubt about the correctness and reliability of the result
delivered by the magistrate judge, whose determinations and recommendations are
accepted.
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Having independently examined the file, reviewed the report, and considered
the defendant’s objections (Doc. 27), the objections are overruled and the report is
adopted, confirmed, and incorporated by reference into this order. Brand’s
remaining claims await resolution. See McIver v. United States, 307 F.3d 1327, 1331,
n.2 (11th Cir. 2002) (suggesting that a district court should first determine whether a
movant is entitled to a delayed appeal before the other claims are addressed).
Accordingly, the court adopts the report and recommendation (Doc. 26) and
overrules Brand’s objections. (Doc. 27) Relief based on Brand’s claim that his
former counsel rendered ineffective assistance of counsel by not appealling is
DENIED. On or before MONDAY, AUGUST 17, 2015, the United States must
show cause why the court should not grant the requested relief based on the
remaining claims. On or before MONDAY, SEPTEMBER 21, 2015 (or thirty days
after the United States complies with this order, whichever occurs later), Brand may
reply.
ORDERED in Tampa, Florida, on July 1, 2015.

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