Gilbert v. USA

Filing 8

MEMORANDUM OPINION AND ORDER denying 2 MOTION to Vacate under 28 U.S.C. 2255. (Ordered by Judge Ed Kinkeade on 10/15/2018) (aaa)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
RANDOLPH EDWARD GILBERT,
Movant,

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v.
UNITED STATES OF AMERICA,
Respondent.

3:17-cv-1751-K (BT)
3:15-cr-0062-K (BT)

MEMORANDUM OPINION AND ORDER
Before the Court is Movant’s petition to vacate, set-aside, or correct sentence
under 28 U.S.C. § 2255. For the foregoing reasons, the Court denies the petition.
I.
Movant pleaded guilty to conspiracy to possess with intent to distribute a
controlled substance in violation of 21 U.S.C. § 846 (“Count One”), and possession of
a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. §
924(c)(1)(A)(i) (“Count Three”). On June 22, 2016, the Court sentenced him to 120
months on Count One and 60 months on Count Three, to run consecutively. Movant
did not file a direct appeal.
On June 22, 2017, Movant filed this § 2255 petition. He argues:
1.

He did not knowingly and voluntarily plead guilty;

2.

He received ineffective assistance of counsel when counsel:
(a)

failed to investigate and challenge the government’s evidence for the

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firearm charge in Count Three;
(b)

failed to inform him of the possible penalties for the conspiracy
charge in Count One; and

(c)

failed to determine that his prior state convictions did not qualify
as controlled substance offenses under the career offender provision
in U.S.S.G. § 4B1.1.
II.

1.

Guilty Plea
Movant argues his guilty plea was not voluntarily entered because his counsel

failed to advise him of his constitutional rights before he pleaded guilty and failed to
ensure there was sufficient evidence to support the plea.
A defendant’s guilty plea must be made voluntarily, and the defendant must
“make related waivers knowing[ly], intelligent[ly], [and] with sufficient awareness of the
relevant circumstances and likely consequences.” United States v. Ruiz, 536 U.S. 622,
628 (2002) (quoting Brady v. United States, 397 U.S. 742, 748 (1970)). A determination
of whether a defendant understands the consequences of his guilty plea does not require
a trial court to determine that the defendant has a perfect understanding of the
consequences, however. The court must only ascertain whether the defendant has a
realistic or reasonable understanding of his plea. See United States v. Gracia, 983 F.2d
625, 627-28 (5th Cir. 1993).

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Courts considering challenges to guilty plea proceedings “have focused on three
core concerns: absence of coercion, the defendant’s understanding of the charges, and
a realistic
understanding of the consequences of the guilty plea.” Gracia, 983 F.2d at 627-28. A
realistic understanding of the consequences of a guilty plea means that the defendant
knows the “immediate and automatic consequences of that plea such as the maximum
sentence length or fine.” Duke v. Cockrell, 292 F.3d 414, 416 (5th Cir. 2002).
Here, Movant fails to show his guilty plea was not voluntary. At rearraignment,
the magistrate judge informed Movant of his constitutional rights, and Movant stated
he understood his rights. (ECF No. 218 at 5-6.) Movant testified he reviewed the
indictment with his attorney, and that he understood the charges. (Id. at 9.) He stated
he understood the possibly penalties for the offenses, that he had discussed the
sentencing guidelines with his attorney, and that he understood the judge would decide
his sentence. (Id. at 7, 13-14.) Movant testified that he fully discussed his case and
guilty plea with his attorney, and that he was satisfied with the advice from his attorney.
(Id. at 9.) He stated that no one had coerced him into plead guilty, and that he was
pleading guilty voluntarily.

(Id. at 11.) Additionally, Movant stated he read and

understood the Factual Resume, and he agreed that he committed each essential element
of the offenses. (Id. at 11-12.) Movant’s claim that his guilty plea was not voluntary
is without merit.

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2.

Ineffective Assistance of Counsel
To sustain a claim of ineffective assistance of counsel, a petitioner must show

that: (1) counsel’s performance was deficient; and (2) the deficient performance
prejudiced the defense so gravely as to deprive the petitioner of a fair trial. Strickland v.
Washington, 466 U.S. 668, 687 (1984). In Strickland, the Court stated that “[j]udicial
scrutiny of counsel’s performance must be highly deferential” and “every effort [must]
be made to eliminate the distorting effects of hindsight.” Strickland, 466 U.S. at 689.
Courts, therefore, must “indulge a strong presumption that counsel’s conduct falls within
the wide range of reasonable professional assistance.” Id.
Even if counsel is proven deficient, a petitioner must prove prejudice. To prove
such prejudice, a petitioner must show “a reasonable probability that the result of the
proceedings would have been different but for counsel’s unprofessional errors.” Crane
v. Johnson, 178 F.3d 309, 312 (5th Cir. 1999) (citing Strickland, 466 U.S. at 694). “[T]he
mere possibility of a different outcome is not sufficient to prevail on the prejudice
prong.” Id. “Rather, the defendant must demonstrate that the prejudice rendered
sentencing ‘fundamentally unfair or unreliable.’” Id. (quoting Lockhart v. Fretwell, 506
U.S. 364, 369 (1993)).
When a petitioner argues his guilty plea was not voluntary due to the ineffective
assistance of counsel, he must show that his counsel’s advice to plead guilty fell below
the range of competence demanded of an attorney in a criminal case. Hill v. Lockhart,

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474 U.S. 52, 56 (1985); Armstead v. Scott, 37 F.3d 202, 206 (5th Cir. 1994). Further, he
must show prejudice by establishing “but for his counsel’s alleged erroneous advice, he
would not have pleaded guilty but would have insisted upon going to trial.” Armstead,
37 F.3d at 206.
(a)

Firearm Charge

Movant claims his counsel failed to investigate and challenge the government’s
evidence for the firearm charge in Count Three. He claims he was actually innocent of
the charge, that “the record is devoid of evidence” to support the charge, and that he
made no admissions regarding the gun charge. (ECF No. 2 at 8.)
Movant’s claims are conclusory and are contradicted by the record. He does not
state how a further investigation of the gun charge would have uncovered evidence
favorable to the defense. See Ross v. Estelle, 694 F.2d 1008, 1012 (5th Cir. 1983)
(emphasizing that mere conclusory allegations do not raise constitutional issues in
habeas proceedings). Movant also signed a Factual Resume in which he admitted that
“during the course of his commission of the drug trafficking offense, he carried a firearm.
. . . He admits that he knowingly possessed the firearm in furtherance of the drug
trafficking crime, a violation of 18 U.S.C. § 924(c)(1)(A)(i).” (ECF No. 76 at 5.)
Additionally, at rearraignment, Movant testified that all facts in the Factual Resume
were true and correct, (ECF No. 218 at 12-15), and he admitted that he committed each
essential element of the offense. (Id. at 10-11.) Movant’s ineffective assistance of claim

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is without merit.
(b)

Conspiracy Charge

Movant claims his counsel failed to inform him that the conspiracy charge in
Count One carried a statutory minimum sentence of five years and a maximum of forty
years. The Factual Resume, however, contained the statutory minimum and maximum
sentence for the offense. As discussed above, Movant testified at rearraignment that he
reviewed the Factual Resume with his counsel before signing it, and he understood
everything in the Factual Resume. (ECF No. 218 at 12.)

At rearraignment, the

prosecutor also read aloud the statutory minimum and maximum sentence for the
charges, and Movant stated he understood the punishment range. (Id. at 13-14.)
Movant’s claim is without merit.
(c)

Career Offender Enhancement

Movant’s sentence was enhanced under the career offender provision at U.S.S.G.
§ 4B1.1 based on his prior Texas convictions for delivery of a controlled substance, and
possession with intent to deliver a controlled substance. (See ECF No. 94-1 at 32.)
Movant argues the enhancement of his sentence based on these convictions was
prohibited by the Supreme Court’s decision in Mathis v. United States, 136 S. Ct. 2243
(2016), and the Fifth Circuit’s decision in United States v. Hinkle, 832 F.3d 569 (5th Cir.
2016). In Mathis, the Supreme Court outlined the process by which a district court
should determine, for the purposes of the Armed Career Criminal Act (“ACCA”), if a

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defendant’s prior state court conviction was one of the enumerated violent felonies listed
in 18 U.S.C. § 924(e)(2)(B)(ii). In Hinkle, the Fifth Circuit applied Mathis to find that
the Texas crime of delivery of a controlled substance was no longer a controlled
substance offense under U.S.S.G. § 4B1.1. Further, in United States v. Tanksley, 848 F.3d
347 (5th Cir. 2017), the Fifth Circuit applied Mathis to also find that the Texas crime of
possession with intent to deliver a controlled substance was no longer a controlled
substance offense under § 4B1.1.
At the time that Movant pleaded guilty and was sentenced, however, his Texas
convictions for unlawful delivery of a controlled substance, and unlawful possession with
intent to deliver a controlled substance, qualified as controlled substance offenses under
§ 4B1.1. See United States v. Ford, 509 F.3d 714, 717 (5th Cir. 2007). Counsel was not
required to anticipate changes in the law. United States v. Fields, 565 F.3d 290, 294 (5th
Cir. 2009).
Further, although Movant states he raises only ineffective assistance of counsel
claims, (ECF No. 6 at 4), the Court notes that if Movant raised a free-standing claim
that Mathis and Hinkley prohibited the career enhancement of his sentence under
U.S.S.G. § 4B1.1, the claim would fail. A claim of misapplication of the sentencing
guidelines is not cognizable under § 2255. United States v. Williamson, 183 F.3d 458,
462 (5th Cir. 1999).

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III.
For the foregoing reasons, the petition to vacate, set-aside, or correct sentence
under 28 U.S.C. § 2255 is DENIED.
SO ORDERED.
Signed October 15th, 2018.

________________________________
ED KINKEADE
UNITED STATES DISTRICT JUDGE

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