United States v. Hogg

UNITED STATES OF AMERICA, Plaintiff, v. TRAVIS R. HOGG, Defendant.

No. 3:10-00099

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF TENNESSEE NASHVILLE DIVISION

Dated: September 8, 2011

JUDGE HAYNES

MEMORANDUM

On April 28, 2010, the United States of America filed a criminal action against the Defendant, Travis R. Hogg, charging that on or about September 2, 2009, he possessed with intent to distribute 50 grams or more of crack cocaine under 21 U.S.C. § 841(a)(1) (Count One) and possessed with intent to distribute a quantity of cocaine under 21 U.S.C. § 841(a)(1) (Count Two). (Docket Entry No. 1). On March 21, 2011, the Court held a plea hearing, and by agreement of the parties under Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure, Defendant pled guilty to the lesser included offense of possession with intent to distribute 5 grams or more of cocaine base under 21 U.S.C. § 841(a)(1). After careful consideration, the Court approved Defendant's plea of guilty and the plea agreement. (Docket Entry No. 21).¹

Defendant filed a motion to withdraw plea of guilty (Docket Entry No. 23), contending that he should be allowed to withdraw his guilty plea because newly discovered evidence undermines the credibility of Detective John Edwards, a key witness. On June 10, 2011, this Court conducted ahearing on Defendant's motion, and the Court took the matter under advisement. On July 12, 2011, the Court denied Defendant's motion. See (Docket Entry Nos. 40 and 41).

Before the Court is Defendant's second motion to withdraw plea of guilty (Docket Entry No. 47), contending, in sum, that at Defendant's plea hearing the Court misinformed him as to the statutory penalty range for the offense to which he pled guilty. Defendant also renews his request to withdraw his guilty plea in light of the post-plea revelation as to criminal charges being filed against Detective Edwards. In the alternative, Defendant argues that the Court should determine that Defendant's plea was not knowing, voluntary and intelligent, and allow him to withdraw his plea under the Due Process Clause. In response (Docket Entry No. 50), the Government contends that the Court properly advised Defendant as to the applicable statutory penalty range and that in any event Defendant agreed in his plea agreement and at his plea hearing that he possessed over 28 grams of crack cocaine, placing him in the same penalty range of 5 to 40 years imprisonment under the Fair Sentencing Act ("FSA").²

Defendant's plea petition provided that if the FSA applied to Count One the statutory penalty range would be 5 to 40 years of imprisonment, but if the FSA did not apply the statutory penalty range would be 10 years to life of imprisonment.³ (Docket Entry No. 21 at 1). In the Rule11(c)(1)(C)⁴ plea agreement, the parties agreed that Defendant would plead to the lesser included offense in Count One to possession with intent to distribute 5 grams or more of cocaine base under 21 U.S.C. § 841(a)(1) and the United States would dismiss Count Two upon sentencing. Id. at 7. The parties agreed that the statutory penalty range was 5 to 40 years. Id. As to the factual basis for the plea agreement, Defendant agreed, in part, that he was responsible for at least 50 grams but less than 150 grams of cocaine base that constituted relevant conduct under U.S.S.G. § 1B 1.3. Id. at 11. The parties agreed that Defendant had three prior felony drug convictions that qualified as either a crime of violence or a controlled substance offense and anticipated that Defendant would be a Career Offender under Section 4B 1.1 of the U.S.S.G. and be a Criminal History Category VI under Section 4B 1.1(b), resulting in a recommended advisory sentencing range of 188 months to 235 months imprisonment. Id. at 13-14. The parties also agreed to recommend a sentence of 188 months imprisonment that would be the bottom of the applicable Guidelines range for Defendant if he were found to be a Career Offender. Id.⁵

At the plea hearing, the Court discussed with the parties as to whether the Fair Sentencing Act should apply in calculating Defendant's statutory penalty range.

THE COURT: My question that I'd like the parties to address and we'll discuss is the statutory penalty, specifically what mandatory minimum term of imprisonment applies. For some context, this being an agreement under Rule 11(c)(1)(C), there is an agreed sentence of 188 months. So that's well above any mandatory minimum, but I have a duty to inform Mr. Hogg not only of the statutory maximum sentence but any mandatory minimum. As I understand it from the first page of the petition, there seems to be a question about whether there is a five-year mandatory minimum or a ten-year mandatory minimum depending on whether the Fair Sentencing Act that was passed in 2010 applies or not. And in looking at the indictment, some of the alleged conduct was in 2009.

And also one other point to consider is the indictment charges 50 grams or more of cocaine base, that is, crack cocaine. But Mr. Hogg is offering to plead guilty to the lesser-included offense of five grams. . . . Under previous law, five grams would trigger a five-year mandatory minimum, and it would take 50 grams to trigger the ten-year mandatory minimum. And under current law, five to 28 grams triggers the five-year mandatory minimum, I believe.

Why I am raising all of this is I have to inform Mr. Hogg of the statutory maximum penalty as well as the statutory sentence, so I wanted to understand what the position of the parties is as to what the mandatory minimum sentence is. Mr. Hannafan, do you have a position?

. . . .

MR, HANNAFAN: United States' position is that the penalty of mandatory minimum of five and maximum penalty of 40 years applies. Defendant is pleading to the lesser-included offense of five grams of crack or more and that the act was not retroactive. Mr. Hogg was charged prior to the passing of that act, and he is now just agreeing to plead to the lesser-included . . .

THE COURT: Here is one other point I should have made which is there is an admission of relevant conduct, as I understand it, in the plea agreement of 50 grams. So the relevant conduct would be taken into account in what is the mandatory minimum sentence.

Let me be clear what I am doing here. I am not objecting to this agreement. It is all these questions are designed to make sure Mr. Hogg understands what he is getting into and what the mandatory minimum sentence is. I understand he's only pleadingguilty to the lesser-included offense, but on the other hand he is admitting for purposes of relevant conduct the 50 grams, if I recall correctly.

MR. HANNAFAN: That's correct.

THE COURT: So if he is admitting the relevant conduct, the mandatory minimum sentence would be set by the relevant conduct, wouldn't it?

MR. HANNAFAN: I don't think it would, Your Honor. I think the mandatory minimum is set by the charge to which he is pleading guilty. . . . So even though the relevant conduct is higher than the amount for the mandatory minimum of ten years to life, we are agreeing to let him plead to the lesser-included. The relevant conduct wouldn't control as to the mandatory minimum. It would control as to his offense level, his base offense level, but I think in this case due to the fact that he is a career offender, his base offense level would still even be higher than if it was just 50 grams of crack.

THE COURT: Well, the agreed sentence again is well above either of these mandatory minimum sentences that are possible. But I am not necessarily sure that in admitting the relevant conduct of at least 50 grams that that wouldn't trigger ten-year mandatory minimum, especially when the statutory maximum would be 40 years even under a five grams of crack cocaine as a lesser-included offense. . . .

. . . .

THE COURT: . . . . And I guess the real question at this point is, you know, is the act retroactive. And without regard to that, putting that aside, whether the relevant conduct admission would trigger a higher mandatory minimum notwithstanding a lesser-included offense.

MR. HOLLEY: Yes, Your Honor. I have to say I agree with Mr. Hannafan that I think the fact that he's pleading to the lesser-included offense of over five grams that that drives the statutory mandatory minimum.

. . . .

THE COURT: He is pleading to five grams or more, but he is admitting 50 or more.

MR. HOLLEY: Yes, Your Honor.

THE COURT: And sentencing certainly under the guidelines is based on actual conduct, relevant conduct, not simply charged conduct.

MR. HOLLEY: Yes, Your Honor. You know, I would have to research it. I thought that relevant conduct would go into the guideline calculation -- I mean the 2D 1.1 calculation, sure, but that in terms of the statutory mandatory minimum I thought if he pled to five or more.

THE COURT: I am not entirely clear on it. That's why I am raising the issue. The additional wrinkle is it is not as if the mandatory minimum sentence would otherwise exceed the statutory maximum for the lesser-included offense.

MR. HOLLEY: Uh-huh. I guess we were all willing to agree that his mandatory minimum would be at least five years based on his plea is what we were.

THE COURT: I recognize that. But for purposes of accepting a plea of guilty, I have to inform Mr. Hogg of what the mandatory minimum sentence will be or at least the risk of what it will be and not simply the lowest possible one but the highest possible one.

MR. HOLLEY: It may be -- I mean the Fair Sentencing Act decision will remain ambiguous, I think, today.

THE COURT: Will remain what?

MR. HOLLEY: Will probably remain ambiguous today unless the Court wants to decide whether that applies necessarily in a proceeding like this. As will the relevant conduct question. I mean, we could research that and try and resolve that.

THE COURT: Well, my view is the intent of Congress was for the Fair Sentencing Act to be applied to all sentences that were imposed after the act was passed, recognizing that it is, as I

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