United States v. Hicks

UNITED STATES OF AMERICA v. ANDRE HICKS, Defendant.

Criminal No. 17-0024 (PLF)

Civil Action No. 18-0119 (PLF)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

August 5, 2020

OPINION

The matter before the Court is defendant Andre Hicks' motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255 [Dkt. Nos. 32 and 33], as amended by his supplemental motion [Dkt. No. 48] and limited by his notice withdrawing certain claims [Dkt. No. 66]. The United States opposes the motion. After careful consideration of the parties' papers, the relevant legal authorities, the motions hearing held on February 27, 2020, and the entire record, the Court will deny Mr. Hicks' motions. A separate Order giving effect to this opinion will issue this same day.¹

I. BACKGROUND AND PROCEDURAL HISTORY

A. The Defendant's Criminal Conduct

On January 13, 2017, Andre Hicks sold a PCP-laced cigarette to an undercover police officer and was subsequently arrested. Proffer at 2-3. The officers searched Mr. Hicks' vehicle after his arrest and discovered a semi-automatic pistol with ammunition in the chamber and twenty-seven rounds in an extended magazine beneath clothing in the rear of the vehicle. Proffer at 3; US Sentencing Memo at 6. Mr. Hicks was on supervised release at the time. See Plea Agreement at 4.

On February 7, 2017, a federal grand jury in the District of Columbia indicted Mr. Hicks on the following four counts: (1) unlawful possession with intent to distribute a mixture and substance containing a detectable amount of phencyclidine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C) ("Count One"); (2) unlawful distribution of a mixture and substance containing a detectable amount of phencyclidine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C) ("Count Two"); (3) unlawful possession of a firearm and ammunition by a person previously convicted of a crime punishable by a term of imprisonment exceeding one year in violation of 18 U.S.C. § 922(g)(1) ("Count Three"); and (4) using, carrying, andpossessing a firearm during a drug trafficking offense in violation of 18 U.S.C. § 924(c)(1) ("Count Four"). Indictment at 1-3; see also Superseding Indictment at 1-3.²

B. The Defendant's 11(c)(1)(C) Plea and Sentence

Mr. Hicks was represented by court-appointed counsel from the time of his arrest through his plea of guilty. See Minute Entry, dated Feb. 9, 2017. On June 13, 2017, Mr. Hicks pled guilty to Count Two - unlawful distribution of a mixture and substance containing a detectable amount of phencyclidine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C) - and the government agreed to dismiss all other counts pursuant to the plea agreement. See Plea Agreement at 1-2; Plea Hr'g Tr. at 10:01-04, 30:17-31:16. The parties entered a plea agreement under Federal Rule of Criminal Procedure 11(c)(1)(C). Plea Agreement at 1. According to Rule 11(c)(1)(C), if a defendant pleads guilty to a charged offense, the plea agreement may specify that an attorney for the government will agree either that a "specific sentence" or "sentencing range" is the appropriate disposition of the case, "or that a particular provision of the Sentencing Guidelines . . . does not apply." FED. R. CRIM. P. 11(c)(1)(C). Once a court accepts a plea under Rule 11(c)(1)(C), the recommendation in the plea agreement binds the court. Id. Here, the parties agreed to a specific sentence of thirty months of incarceration, followed by three years of supervised release in Criminal No. 17-0024. See Plea Agreement at 1-2.³

A sentence of thirty months of incarceration was the middle of the Sentencing Guidelines range that the prosecutor and defense calculated for Count Two. See Plea Agreement at 3-6. Count Two carried a base offense level of 12, with a two-level increase for possession of a firearm in connection with the offense and a two-level decrease for acceptance of responsibility. Id. at 3-4. Mr. Hicks' prior offenses garnered him ten criminal history points under the Guidelines, which put him in Criminal History Category V. See id. at 4-5. The corresponding Guidelines range for Count Two therefore was 27-33 months. Id. at 5. The parties agreed to a sentence in the middle of the Guidelines range for Count Two, with the government agreeing to dismiss the remaining three counts against Mr. Hicks. Id. at 2.

The Guidelines range calculated in the plea agreement did not include a career offender enhancement. See Plea Agreement at 5. The parties acknowledged, however, that Mr. Hicks may have been eligible for a career offender enhancement under Section 4B1.1 of the U.S. Sentencing Guidelines ("U.S.S.G."):

Based on the Pre-Trial Services report, it should be noted that your client may qualify for classification as a career offender under U.S.S.G. § 4B1.1. Under U.S.S.G. § 4B1.1, the defendant would be assigned base offense level of 29 and Criminal History Category VI. Taking into consideration a 3-level reduction for acceptance of responsibility, as set forth above, this would result in a sentencing guidelines range of 151 to 188 months of incarceration.

Plea Agreement at 4, n.1; see also US Sentencing Memo at 6; Hicks Sentencing Memo at 2. Under the Sentencing Guidelines, a defendant is a career offender if "the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense." U.S.S.G. § 4B1.1. Of Mr. Hicks' prior convictions, the parties agree that only two would have possibly counted towards a career offender enhancement: (1) a 2009 conviction for unlawful distribution of 100 grams or more of phencyclidine, and (2) a 2009 conviction for attemptedpossession with intent to distribute a controlled substance (Mr. Hicks' "prior inchoate controlled substance offense"). See Hicks' Supp. Mot. to Vacate at 4 (citing PSR at ¶¶ 34, 41-42); US Response at 7; see also Hicks Supp. Br. at 4-7; US Supp. Br. at 5-6.

During the plea hearing, the Court noted that there was an "open question" about whether Mr. Hicks would be viewed as a career offender under the guidelines. Plea Hr'g Tr. at 6:09-12. Defense counsel explained that while the parties did not include the career offender enhancement in the plea agreement, there was a possibility that the probation office may apply the career offender enhancement in its calculation of the guidelines in the presentence investigation report. Id. at 7:09-19. Thus, counsel included the footnote referencing Section 4B1.1 of the Sentencing Guidelines in the plea agreement because they did not want the Court to be "surprised" if the presentence investigation report referenced a career offender enhancement that was absent from the plea agreement. Id. at 7:13-19. Defense counsel further explained that "the parties don't want to litigate the applicability and all of the arguments that this Court has seen about career offenders." Id. at 7:05-08. The Court agreed that there was no reason to reach the question of whether Mr. Hicks qualified as a career offender "when it's easy enough for me to accept the plea today, because I think it's a fair and reasonable plea [under Rule 11(c)(1)(C)]." Id. at 29:10-13.

At the plea hearing, the Court carefully reviewed with the defendant the consequences of entering a guilty plea and the constitutional rights that the defendant waived by pleading guilty, as was also set forth in the plea agreement. Plea Hr'g Tr. at 10:01-20:20; Plea Agreement at 7-9. When questioned by the Court, Mr. Hicks affirmed that he had had adequate time and opportunity to discuss the plea with his lawyer, and that he was fully satisfied with his lawyer's representation of him. Plea Hr'g Tr. at 12:01-07. Throughout the plea hearing, theCourt confirmed that the plea agreement had been thoroughly explained to Mr. Hicks, confirmed that Mr. Hicks understood the agreement, and provided Mr. Hicks repeated opportunities to ask any questions he may have had. Id. at 26:12-21; 26:22-27:20; 27:21-28:10; 28:16-25. The Court informed Mr. Hicks that unlike some other instances where the Court has discretion in the sentence it imposes, if the Court accepted this plea under Rule 11(c)(1)(C) then it would be bound to sentence Mr. Hicks to "the sentences agreed upon" in the plea agreement. Id. at 29:01-07. Before accepting his plea of guilty, the Court asked Mr. Hicks if he had any questions for the Court or for counsel, to which Mr. Hicks said that he had no questions. Id. at 30:10-16.

The Court accepted the Rule 11(c)(1)(C) plea that resolved both Criminal No. 17-0024 and Criminal No. 09-0303. Plea Hr'g Tr. at 29:03-07; 30:23-31:16. On September 6, 2017, it sentenced Mr. Hicks to thirty months of incarceration on Count Two in Criminal No. 17-0024. Judgment at 1-3. The Court also sentenced Mr. Hicks to twenty-one months of incarceration for violating the terms of his supervised release in Criminal No. 09-0303, to run consecutively to his sentence in Criminal No. 17-0024. United States v. Hicks, Criminal No. 09-0303, Judgment on Revocation [Dkt. No. 30] (Sept. 8, 2017) at 1-3. In accordance with the plea agreement, the government moved to dismiss the remaining counts in the indictment in Criminal No. 17-0024. See Minute Entry dated Sept. 6, 2017; see also Plea Agreement at 2.

C. The Defendant's 2255 Motions to Vacate, Set Aside, or Correct his Sentence

On January 18, 2018, Andre Hicks filed two pro se motions to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255 that raised multiple issues. See Pro Se Motions.⁴The Court appointed new counsel to represent Mr. Hicks, who then filed a supplemental memorandum of law in support of Mr. Hicks' pro se motion. See Order Appointing Counsel; Hicks Supp. Mem. of Law. The United States filed an opposition to Mr. Hicks' 2255 motions. See US Original Response. Mr. Hicks then filed a supplemental motion in support of his motion to vacate, set aside, or correct his sentence, raising a new argument that he received ineffective assistance of counsel...