O'Bryant v. United States

ANDREUS O'BRYANT, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

No. 4:16-cv-1804-AGF

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION

March 31, 2020

MEMORANDUM AND ORDER

This matter is before the Court of Petitioner Andreus O'Bryant's motion filed under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. On August 29, 2013, Petitioner entered a plea of guilty to one count of conspiracy to possess with intent to distribute cocaine, in violation of 21 U.S.C §§ 841(b)(1)(B) and 846. The Court accepted Petitioner's plea, and on February 11, 2014, after a two-day sentencing hearing, the Court sentenced Petitioner to a total of 330 months in prison and a four-year term of supervised release. In arriving at this sentence, the Court, pursuant to United States Sentencing Guidelines ("Guidelines") § 2D1.1(d)(1), applied a cross-reference to § 2A1.1, the Guidelines section applicable to first-degree murder.

In his pro se motion to vacate and set aside his conviction and sentence, Petitioner claims that the Court's application of the first-degree murder cross-reference violated his Sixth Amendment right to a jury trial as interpreted in Apprendi v. New Jersey, 530 U.S. 466 (2000)¹ and its progeny, particularly Alleyne v. United States, 570 U.S. 99 (2013). As the record before the court conclusively demonstrates that Petitioner is not entitled to relief, the Court will deny Petitioner's motion without a hearing.

BACKGROUND

Criminal Proceedings

As part of the guilty plea agreement signed by both parties, Petitioner stipulated to the following facts. On April 21, 2011, victim Jamie Benson and two other individuals traveled to St. Louis, Missouri from Houston, Texas for the purpose of selling approximately a half kilogram of cocaine in a deal arranged by Petitioner. At some point after their arrival that day, Benson and his travel companions, as well as Petitioner, co-defendants Lodgy Jackson and Scott Compton, and an individual named Desmond Stringfellow, drove to a rural, wooded area outside of St. Louis, where the sale was to take place. A sudden downpour interrupted the transaction.

At some point following the failed transaction, some members of the group drove around the St. Louis metropolitan area in Petitioner's car into the early morning hours of April 22, 2011. Later that morning, Benson's body was discovered in an alley in the City of St. Louis. Benson had been shot. Petitioner was not present at the location where Benson was shot but was inside a nearby residence at the time. Petitioner's co-defendant, Jackson, admitted to shooting and killing Benson.

On August 25, 2011, Petitioner was indicted on five counts: 1) one count of conspiracy to possess with intent to distribute cocaine, in violation of 21 U.S.C. §§ 841(b)(1)(B) and 846; (2) one count of conspiracy to possess a firearm in furtherance of a drug-trafficking crime, in violation of 18 U.S.C. § 924(o); and (3) three counts of intimidation, threatening, and corruptly persuading individuals to make false statements to investigators and the federal grand jury, all in violation of 18 U.S.C. § 1512(b)(1). Petitioner evaded police detection until July 2012, when he was arrested in Houston, Texas. Petitioner initially pled not guilty.

As noted above, Petitioner later changed his plea and pled guilty to count one pursuant to a written plea agreement executed on August 29, 2013. As part of the plea agreement, the government agreed to dismiss the remaining charges. The parties also agreed that Petitioner was accountable for 510 grams of cocaine, but they did not agree on an estimated total offense level under the Guidelines. Instead both parties agreed to reserve their rights to make final recommendations for offense level until each party could review the Presentence Investigation Report ("PSR"). United States v. O'Bryant, No. 4:11-cr-00351-AGF-1, ECF No. 202 at ¶ 6(c) (E.D. Mo.). Notably, the parties disputed the potential use of the first-degree murder cross-reference for sentencing, and therefore, both reserved the right to litigate the application of the cross-reference under §§ 2D1.1(d) and 2A1.1, and to present evidence of this issue at the sentencing hearing. Id., ECF No. 202 at ¶ 6(a)(2). Additionally, both parties reserved the right to appeal all sentencing issues. Id. at ¶ 7(a)(2).

At the change-of-plea hearing held on the day the plea agreement was executed, Petitioner represented to the Court that he had read, discussed with his attorney, and understood the terms of the plea agreement, and that he was guilty of the crime to which he was pleading guilty. He further confirmed that he was satisfied with the representation he received from his attorney, and that there was nothing he wanted his attorney to do for him that the attorney had not done in representing Petitioner. Id., ECF No. 299 at 8-9.

The Court also explained to Petitioner that the plea agreement included a waiver of his rights to contest the sentence in any form of post-conviction proceeding, except for claim of prosecutorial misconduct or ineffective assistance of counsel, and Petitioner related to the Court that he understood that waiver. Id. at 16.

The Court further explained to Petitioner that the Court did not have to impose the parties' recommended sentence. Petitioner confirmed that he understood that: "the parties are anticipating the presentation of evidence at the time of sentencing for [the Court's] consideration in determine whether [the § 2A1.1] cross reference should apply"; the plea agreement waived the right for the jury to "mak[e] factual determinations related to [the cross reference]"; "the decision about whether [§] 2A1.1 is applied will instead be made by [the Court]"; "[Petitioner is] not going to be able to decide later, after sentencing that . . . , [Petitioner] want[s] a jury to make those decisions"; and that "[Petitioner is] still going to be stuck with [Petitioner's] plea and [Petitioner is] not going to be able to withdraw [the] plea just because [the Court] didn't go along with any Guidelines recommendations . . . or didn't agree with [Petitioner] on whether Section 2A1.1applies." Id. at 21-23. Counsel for Petitioner confirmed that he had reviewed the case law with Petitioner, including the Apprendi decision, about whether a jury and not a judge should hear the issues regarding the cross-reference in applying the Guidelines. The Court thereafter advised Petitioner that even if a new case came down suggesting a jury should be the one to make the decision regarding application of Section 2A1.1, Petitioner still would not be able to withdraw his guilty plea. Petitioner acknowledged that he understood and agreed that he was "giving up the right to have the jury make that decision by entering into this guilty plea." Id. at 23-24. The Court also informed the Petitioner that the Court may deem him a career criminal offender or an armed career criminal, that a determination of either could lead to an increased sentence, and that, by entering the guilty plea, the Petitioner would not be entitled to withdraw the plea if the Court made such a determination. Id. at 25-28.

The Court then ascertained the factual basis for the guilty plea and found that the plea was knowing, intelligent, and voluntary. Id. at 35-41.

The initial PSR prepared by the United States Probation Office for the Eastern District of Missouri was filed on December 19, 2013. The PSR recommended application of the first-degree murder cross-reference set forth in § 2A1.1(a) and, accordingly, a base offense level of 43. The PSR also recommended an enhancement for obstruction of justice under § 3C1.1, adding two points to the base offense level. Finally, the PSR recommended a three-point reduction to the base offense level because of Petitioner's acceptance of responsibility, stipulated to in the plea agreement. The PSRthus recommended a total offense level of 42 and a criminal history score of I. Id., ECF No. 251, at 8-10.

Petitioner, through appointed counsel, asserted multiple objections to the PSR, including objecting to the application of the first-degree murder cross-reference. Particularly, Petitioner asserted that he was not involved in Benson's murder and did not obstruct justice in the way that the PSR claimed. Id., ECF No. 258. The final PSR added a paragraph to reflect Petitioner's objections to his involvement in Benson's murder and the alleged witness intimidation leading to obstruction of justice, but still recommended application of the cross-reference, the applicability of which the Court would have to decide based on the evidence presented at sentencing. Id., ECF No. 264, at 7.

Petitioner's sentencing hearing began on February 10, 2014 and continued into February 11, 2014. At sentencing, the Government presented evidence, including the testimony of Compton and Stringfellow, that Petitioner, though not physically present for Benson's murder, was the mastermind of a plot by which Petitioner arranged a fake drug deal with Benson in St. Louis so that Petitioner and his co-conspirators could kill Benson and rob him of the cocaine.

At the close of evidence, the Court addressed the PSR and Petitioner's objections to the Guidelines calculations. The Court overruled Petitioner's objections that the application of the cross-reference violated his Fifth Amendment right to due process and Sixth Amendment right to a trial by jury, and the Court determined that from both a factual and legal standpoint, the application of the cross-reference was appropriate.

After making the above findings, the Court applied the cross-reference to determine that Petitioner's base offense level was 43, with a 3-level decrease for acceptance of responsibility, for a total offense level of 40. The Court also found that Petitioner's criminal history category was I, resulting in a sentencing Guidelines range of 292 to 365 months' imprisonment. Id. at 64. After considering the sentencing...