Hargrove v. United States

SOLOMON HARGROVE, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

Nos. CV 121-174, CR 118-004

United States District Court, S.D. Georgia, Augusta Division

April 8, 2022

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

BRIAN K. EPFS UNITED STATES MAGISTRATE JUDGE.

Petitioner an inmate at the Federal Correctional Institution in Herlong California, has filed with this Court a motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. This case is now before the Court on Respondent's motion to dismiss. (Doc. no. 3.) For the reasons set forth below, the Court REPORTS and RECOMMENDS that Respondent's motion to dismiss be GRANTED, (doc. no. 3) Petitioner's § 2255 motion be DISMISSED, this civil action be CLOSED, and a final judgment be ENTERED in favor of Respondent.

I. BACKGROUND

A. Indictment

On February 7, 2018, the grand jury in the Southern District of Georgia charged Petitioner with two counts of distributing cocaine base in violation of 21 U.S.C. § 841(a)(1), on June 2 and 5, 2017. United States v. Hargrove, CR 118-004, doc. no. 3 (S.D. Ga. Feb. 7, 2018) (hereinafter “CR 118-004”). Both counts carried maximum sentences of twenty years imprisonment. Id., doc. no. 4. Petitioner retained attorney Martin C. Puetz to represent him. Id., doc. no. 10.

B. Agreement to Plead Guilty

On October 25, 2018, Petitioner appeared with counsel and pled guilty to Count Two only. CR 118-004, doc. nos. 48-50. In exchange, the government agreed to dismiss Count One, not object to 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. Id., doc. no. 50, (“Plea Agreement”), p. 3.

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

On or about June 5, 2017, in Richmond County, within the Southern District of Georgia, the defendant, SOLOMON HARGROVE a/k/a "SOLO," did knowingly and intentionally distribute a mixture or substance containing a detectable amount of cocaine base, a Schedule II controlled substance.

Id. at 1-2.

The Plea Agreement did not require Petitioner to waive any appellate or collateralattack rights. See Plea Agreement. With his signature on the Plea Agreement, Petitioner agreed he read and carefully reviewed it with Mr. Puetz, understood each provision, voluntarily agreed to it, and “stipulate[d] that the factual basis set out therein is true and accurate in every respect.” Id. at 8. Petitioner additionally attested “that his attorney has 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 5.

At the change of plea hearing, Chief United States District Judge J. Randal Hall first 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. 75 (“Rule 11 Tr.”), p. 2. Judge Hall reviewed the charges against Petitioner in the indictment, with a particular focus on the Count Two to which the guilty plea applied, as well as the forfeiture allegation against him. Id. at 5-6. Petitioner confirmed he had as much time as he needed to review the charges with Mr. Puetz. Id. at 6. Petitioner also testified under oath he was satisfied with Mr. Puetz's assistance, and he had read and reviewed the Plea Agreement with counsel before signing it. Id. at 7, 9.

Judge Hall also explained the rights Petitioner would be waiving by pleading guilty, and Petitioner affirmed he clearly understood those rights. Id. at 7-9. Among the rights explained, Judge Hall 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 crossexamine witnesses, and the right to remain silent. Id. Judge Hall confirmed that other than the Plea Agreement, no one on behalf of the government had promised anything to procure the guilty plea. Id. at 10.

Judge Hall reviewed the statutory penalty of a sentence up to twenty years in prison. Id. at 11. When asked, Petitioner confirmed he understood the possible imprisonment penalty, as well as the potential $1, 000, 000 fine and up to three years of supervised release after completion of the term of imprisonment. Id. Judge Hall also explained that upon Petitioner's conviction, he would lose the right to vote, hold public office, serve on a jury, and own or possess firearms or ammunition. Id. at 12. Judge Hall further explained that upon entry of the guilty plea, he would order the preparation of a Presentence Investigation Report (“PSI”), and Petitioner's sentence would be based on the information in the PSI. Id. at 12-14. Judge Hall specifically explained the PSI would calculate an advisory Sentencing Guidelines range, but he could sentence Petitioner within the range, below the range, or above the range. Id. at 14. Petitioner stated he understood the sentencing process described by Judge Hall and no one had promised him he would receive a particular sentence. Id. at 15.

Next, Judge Hall heard a factual basis for the guilty plea from Assistant United States Attorney Tara M. Lyons Id. at 16-17. On June 1, 2017, Special Agent Ron Rhodes with the Bureau of Alcohol, Tobacco, and Firearms (“ATF”) worked with a confidential informant to set up a drug purchase from Petitioner. Id. at 16. The confidential informant contacted Petitioner to purchase one half once of cocaine, and Petitioner told the informant to meet him at a Chevron parking lot in Augusta, Georgia. Id. Special Agent Rhodes and other ATF Agents observed Petitioner drive up in a Dodge Charger, exit the vehicle, enter the informant's vehicle, and hand the informant cocaine in exchange for $350. Id. The transaction was captured on video. Id. The cocaine was turned over to the ATF agents to be tested, and a database search matched the Dodge Charger's license plate to owner Lisa Hargrove. Petitioner stated to Judge Hall the information provided by AUSA Lyons and contained in Count Two of the indictment was true. Id. at 18.

Judge Hall summarized the proceedings as follows:

Now that the plea has been signed by [Petitioner] and entered into the record of this hearing, this Court now finds that [Petitioner] is competent. He fully understands the charge against him. There is an independent factual basis to support his plea of guilty containing each of the essential elements of this offense. He knows the statutory punishment that could be imposed on the charge and he knows his jury rights which he has knowingly and voluntarily waived.

I further find that [Petitioner]'s decision to plead guilty this morning is voluntary, knowing, and not as a result of any force, pressure, threats or promises other than the promises made by the Government in the Plea Agreement. Therefore, his plea is accepted and I now adjudge [Petitioner] guilty of count two of the indictment based upon the plea.

Id. at 19.

C. Sentencing

The United States Probation Office prepared a PSI setting Petitioner's Total Offense Level at twenty-nine, Criminal History Category at VI, and Guidelines imprisonment range at 151 to 188 months. PSI ¶¶ 21, 37, 60. Because Petitioner had two prior controlled substance convictions and was thus a career offender under U.S.S.G. § 4B1.1, his offense level was thirty-two, reduced by three for acceptance of responsibility. PSI ¶¶ 18-21. The statutory maximum term of imprisonment for Count One was twenty years. 21 U.S.C. §§ 841(a)(1) & 841(b)(1)(C); PSI ¶ 59.

Petitioner raised one objection to the PSI, objecting to his career-offender status. See PSI Add. The PSI classified Petitioner as a career offender because he had two prior state court convictions for controlled substance offenses. Specifically, in 2009 and 2010, Petitioner twice plead guilty in Richmond County Superior Court to possession of cocaine with intent to distribute. PSI ¶¶ 18, 25, 28. Petitioner averred his 2009 conviction only involved 3.3 grams of cocaine. PSI Add., p. 1. Petitioner argued the small quantity of cocaine involved in that conviction was grounds for a downward departure in Petitioner's sentence. Id. Petitioner also filed a separate motion for a downward departure making the same argument. See CR 118004, doc. no. 56.

At sentencing, Judge Hall noted that Petitioner filed both an objection to the PSI and a motion for a downward departure that was “tied into that objection.” Id., doc. no. 76 (“Sent. Tr.”), p. 3. Mr. Puetz agreed that the PSI objection and motion for a downward departure were both based on the amount of cocaine involved in the 2009 conviction that led to Petitioner's career offender classification. Id. Mr. Puetz further agreed his dispute with the PSI was not whether the 2009 conviction merited the career offender classification, but whether the underlying facts merited a downward departure. Id. at 3-4. Accordingly, Judge Hall overruled Petitioner's objection to the PSI and stated he would take into consideration the basis of the PSI objection when considering the motion for a downward departure. Id. at 4. Judge Hall then adopted the factual statement of the PSI and the application of the advisory Guidelines as his own findings of fact. Id. at 4-5.

Judge Hall next heard from Mr. Puetz and Petitioner regarding mitigation. Mr. Puetz explained the facts leading to Petitioner's prior state court convictions for possession with intent to distribute, emphasizing the small amounts of cocaine involved in the 2009 conviction and the weak evidence supporting the 2010 conviction. Id. at 8. Mr. Puetz noted Petitioner obtained a GED...