Davenport v. United States

CEDRIC DERRELL DAVENPORT, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

CV 120-184

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF GEORGIA AUGUSTA DIVISION

May 28, 2021

(Formerly CR 107-128 & CR 119-003)

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

Petitioner, an inmate at Bennettsville Federal Correctional Institution in Bennettsville, South Carolina, filed a motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. For the reasons set forth below, the Court REPORTS and RECOMMENDS the amended § 2255 motion challenging Petitioner's conviction in CR 119-003 be DENIED without an evidentiary hearing, (doc. no. 3), the original motion be DENIED AS MOOT, (doc. no. 1), the § 2255 motions in CR 107-128 be DENIED AS MOOT, this civil action be CLOSED, and a final judgment be ENTERED in favor of Respondent.

I. BACKGROUND

A. Procedural History

On December 29, 2020, the Court ordered Petitioner to refile his motion and specify which conviction he was challenging because it appeared Petitioner was challenging convictions in two separate criminal cases. (Doc. no. 2.) The Court explained Petitioner cannot challenge both convictions in one § 2255 motion. (Id.) Petitioner refiled his motion challenging only his conviction in CR 119-003. (Doc. no. 3.) Thus, Petitioner's § 2255 motions in CR 107-128 should be DENIED AS MOOT. The Court will address the claims raised in Petitioner's amended motion challenging his conviction in CR 119-003. Because Petitioner's operative motion to vacate is the amended motion challenging his conviction in CR 119-003, the original motion should be DENIED AS MOOT. (Doc. no. 1.)

B. Indictment

On January 8, 2019, the grand jury in the Southern District of Georgia indicted Petitioner on one count of felon in possession of firearm in violation of 18 U.S.C. § 922(g)(1). United States v. Davenport, CR 119-003, doc. no. 1 (S.D. Ga. January 8, 2019) (hereinafter "CR 119-003"). On January 23, 2019, Petitioner pled not guilty. Id., doc. no. 10. Petitioner faced a statutory sentence of not more than ten years of imprisonment. Id., doc. no. 2. The Court appointed Richard T. Pacheco, II to represent Petitioner. Id., doc. no. 6.

C. Guilty Plea

On February 14, 2019, Petitioner appeared with counsel and entered a guilty plea to the firearm charge. Id., doc. nos. 18-20. The written plea agreement identified the elements of the offense as: "(1) that Defendant knowingly possessed a firearm in or affecting commerce; and (2) that, before possessing the firearm, Defendant had been convicted of a felony, that is, a crime punishable by imprisonment for more than one year." Id., doc. no. 20, ("Plea Agreement"), p. 1. In exchange for the guilty plea, the government agreed to (1) not object to a recommendation for a two-point acceptance of responsibility reduction and move for an additional one-point reduction under the Sentencing Guidelines if Petitioner's offense level was sixteen or greater prior to the acceptance of responsibility reduction; (2)recommend to the U.S. Probation Office and the Court, for purposes of Section 2K2.1(b)(1) of the Sentencing Guidelines, Petitioner's offense involved one firearm; and (3) consider filing a motion, based on any "substantial assistance" provided by Petitioner, for downward departure under U.S.S.G. § 5K1.1 or requesting a reduction of Petitioner's sentence under Fed. R. Crim. P. 35. Id. at 3-5.

The Plea Agreement contained the following factual basis for Petitioner's guilty plea:

On or about July 16, 2018, in Richmond County, within the Southern District of Georgia, the defendant,

CEDRIC DERRELL DAVENPORT

having been convicted of a crime punishable by imprisonment for a term exceeding one year, did knowingly possess, in and affecting commerce, a firearm, to wit, a Springfield Armory XDM-9, 9mm handgun, which had been transported in interstate commerce.

Id. at 1-2. With his signature on the Plea Agreement, Petitioner "stipulate[d] that the factual basis set out therein is true and accurate in every respect." Id. at 12.

By signing the Plea Agreement, Petitioner also "entirely waive[d] his right to a direct appeal of his conviction and sentence on any ground" unless the Court (1) sentenced him above the statutory maximum, (2) sentenced him above the advisory Sentencing Guidelines range, or (3) the government appealed the sentence. Id. at 8. Absent one of those three conditions, "[Petitioner] explicitly and irrevocably instruct[ed] his attorney not to file an appeal." Id. at 9. Further, Petitioner waived his right to collaterally attack his conviction and sentence on any ground other than ineffective assistance of counsel. Id. By signing the Plea Agreement, Petitioner additionally attested Mr. Pacheco had "represented him faithfully, skillfully, and diligently, and [Petitioner] is completely satisfied with the legal advice given and the work performed by his attorney." Id. at 10.

At the guilty plea hearing, United States District Judge Dudley H. Bowen, Jr. confirmed no one had threatened or pressured Petitioner into pleading guilty and that he clearly understood where he was and why he was in court. Id., doc. no. 38 ("Rule 11 Tr."), pp. 4, 8, 13. Judge Bowen also reviewed the charge to which Petitioner was pleading guilty and confirmed Petitioner had as much time as he needed to go over the charge with Mr. Pacheco. Id. at 8-9. Petitioner also testified under oath he was satisfied with the assistance he had received from Mr. Pacheco. Id. at 9.

Judge Bowen also explained the rights Petitioner would be waiving by pleading guilty, and Petitioner affirmed he clearly understood those rights. Id. at 10-11. Among the rights explained, Judge Bowen reviewed the right to trial by jury, the presumption of innocence, the government's burden to prove guilt beyond a reasonable doubt, the right to present and cross-examine witnesses, and the right to remain silent. Id. After Petitioner questioned the Court as to the government's burden of proof, Judge Bowen further explained the elements of the offense the government would have to prove if Petitioner went to trial. Id. at 12-13. Judge Bowen also specifically reviewed the appeal and collateral attack waiver provisions of the Plea Agreement. Id. at 19-20. Judge Bowen confirmed that other than the Plea Agreement, no one on behalf of the government had promised anything to procure the guilty plea. Id. at 13, 20.

Judge Bowen reviewed the statutory maximum penalty of ten years in prison. Id. at 9-10. When asked, Petitioner confirmed that he understood the possible imprisonment penalty, as well as the potential $250,000 fine and up to three years of supervised release after completion of the term of imprisonment. Id. at 10. Judge Bowen also explained that upon entry of the guilty plea, he would receive a Presentence Investigation Report ("PSI"),and Petitioner's sentence would be based on the information in the PSI. Id. at 12-13.

Next, Judge Bowen heard a factual basis for the guilty plea from Assistant United States Attorney Patricia Rhodes. Id. at 14-16. On Monday July 16, 2018, investigators with the Richmond County Sheriff's Office received information Petitioner was selling marijuana at 724 Demaret Street. Id. at 14. When investigators arrived, Petitioner was sitting in a silver Chrysler 300 parked in the driveway. Id. Investigator Kyle Gould made contact with Petitioner, who appeared nervous. Id. Investigator Gould knew Petitioner was on parole and asked him to exit the vehicle. Id. Investigator Gould then observed a Springfield XDM 9-millimeter pistol on the driver's side floorboard of Petitioner's vehicle and located a small amount of marijuana in a glass jar inside a blue bag on the back seat. Id. at 14-16. After Petitioner's arrest, the investigators received consent from Petitioner's mother to search two safes located inside her home, where they found two additional firearms and marijuana. Id. at 15. However, Petitioner was not charged with possession of the two firearms because consent to search was obtained from Petitioner's mother, rather than Petitioner. Id.

Petitioner confirmed to Judge Bowen the information provided by Ms. Rhodes and contained in the indictment was true and he was guilty of, and wanted to plead guilty to, the felon in possession charge. Id. at 17, 20-21. Judge Bowen then summarized the proceedings as follows: Petitioner "has acknowledged his guilt. He is aware of his right to trial. He knows the maximum penalty and with full knowledge of the consequences, he has decided to plead guilty upon a sound factual basis, and I'll accept the plea in writing." Id. at 21.

D. Sentencing

The United States Probation Office prepared a PSI which set Petitioner's Total Offense Level at twenty-five, Criminal History Category at V, and Guidelines imprisonmentrange at 100 to 120 months. PSI ¶¶ 26, 37, 62. The base offense level of twenty-two was increased by two and four points, respectively, because the offense involved three firearms and Petitioner possessed the firearm while in possession of marijuana with intent to distribute. PSI ¶¶ 17-18. The adjusted offense level was reduced three points for Petitioner's acceptance of responsibility. PSI ¶¶ 24-25.

Petitioner raised three objections to the PSI based on the firearms enhancement under § 2K2.1(b)(1)(A), felony enhancement under § 2K2.1(b)(6)(B), and calculation of his criminal history score in ¶ 35. See PSI Add.; CR 119-003, doc. no. 39, ("Sent. Tr."), pp. 3-4, 8-9. Mr. Pacheco argued at sentencing that (1) the two-level enhancement for possessing three firearms should not apply because Defendant was charged with and pled guilty to only one firearm offense; and (2) the four-level enhancement for possessing a firearm while committing a felony should not apply because Petitioner possessed a misdemeanor rather than felony amount of marijuana. Sent. Tr., p. 3. The government agreed the two-level enhancement should not apply and explained it did not anticipate the...