United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
CATHERINE D. PERRY, District Judge.
Petitioner Rocky Joseph Gendron brings this case under 28 U.S.C. § 2255, seeking to vacate, set aside, or correct his sentence. Gendron was sentenced to 120 months in prison, followed by a 5-year term of supervised release, after he pled guilty to conspiracy to possess with intent to distribute more than 50 grams of cocaine base. Criminal Case No. 4:09CR735 CDP. Gendron appealed, and the Eighth Circuit Court of Appeals affirmed. United States v. Gendron, Case No. 10-3662 (8th Cir. Apr. 19, 2011).
As grounds for his § 2255 motion, Gendron alleges that his counsel was ineffective at his sentencing hearing for two reasons: (1) he failed to call a witness to testify on the nature of the cocaine at issue, and (2) he failed to raise a Daubert challenge to the testimony of the government's expert witness, a chemist from the Drug Enforcement Administration.
Gendron has filed several additional motions. He sought discovery and then moved to compel the government to respond to his discovery requests. He also moved to file a supplemental pleading based on Alleyne v. United States, 133 S.Ct. 2151 (2013). I will deny these motions for the reasons stated below. Because the record affirmatively refutes Gendron's ineffective assistance of counsel claims, I will deny his § 2255 motion without a hearing.
On November 19, 2009, Gendron was charged with one count of conspiracy to possess with intent to distribute more than 50 grams of cocaine base (crack cocaine) under 21 U.S.C. §§ 841(a)(1) and 846 (Count I); one count of forging Federal Reserve Notes under 18 U.S.C. § 471 (Count II); and one count of possession of forged Federal Reserve Notes under 18 U.S.C. § 472 (Count III). Most of the facts surrounding the charges are not at issue in this case.
In September 2010, Gendron pled guilty to Count I, and the government dismissed the other two counts. During the plea colloquy, Gendron maintained that the substance he conspired to possess with intent to distribute was a "non-crack form of cocaine base." ( See Case No. 4:09CR735 CDP, Doc. 80, Transcript, 3:10-12, 6:21-23.) At the plea hearing, I questioned Gendron at length, and he indicated that he was satisfied with his counsel and understood the 120-month mandatory minimum sentence that applied to the charge. I accepted Gendron's guilty plea because there was a sufficient factual basis to support it, but I expressed concern about the legal difference between cocaine base and crack cocaine. Therefore, I ordered Gendron and the government to brief the issue of whether there was a difference, under the applicable statutes and the Sentencing Guidelines, between cocaine base and crack cocaine.
The parties briefed the issue, noting that Title 21 of the United States Code did not define "cocaine base" but that, in a note in the United States Sentencing Guidelines Manual, the Sentencing Commission defined cocaine base, "for purposes of this guideline, " as "crack." It went on, "Crack' is the street name for a form of cocaine base, usually prepared by processing cocaine hydrochloride and sodium bicarbonate, and usually appearing in a lumpy, rocklike form." U.S. SENTENCING GUIDELINES MANUAL § 2D1.1, Note (D) to Drug Quantity Table. Although there was a significant circuit split at that time as to whether possession of non-crack forms of cocaine base would support the same sentence under § 841, the Supreme Court has since decided the issue. In DePierre v. United States, 131 S.Ct. 2225 (2011), the Court held that, for the purpose of applying the ten-year mandatory minimum sentence under § 841, "cocaine base" was not limited to crack cocaine.
Because the Court had not yet decided DePierre, Gendron objected to the Presentence Investigation Report on the same basis. I heard arguments from both parties at Gendron's sentencing hearing on November 23, 2010. I also heard testimony, presented by the government, from DEA chemist Charlotte Corbett regarding analysis of the substance in question. Corbett stated - among other things - that on the basis of tests generally accepted by the scientific community, including an infrared spectroscopy test, the substance was conclusively cocaine base. Corbett testified that sodium bicarbonate was present in the substance and that it had a "clumpy" appearance with "rock-sized formations." She testified that if sodium bicarbonate were present in cocaine powder, it would interfere with inhaling or injecting the cocaine. Corbett testified that there was "no chemical test that would tell [her] if something is crack, " which she explained was not a "chemical term, " but "more of a street term."
Again, because there was no mandatory authority on the statutory difference between cocaine base and crack cocaine at that time, Gendron's counsel argued that the government had provided no witness that could testify that the substance was crack cocaine. He argued that an additional expert should be called in to testify as to whether the substance should be considered crack, that he had researched and located such experts, and requested that the Court allow an additional expert to testify. The government responded that no witness could definitively say whether it was crack because crack cocaine has an "amorphous definition" and that additional testimony would not be useful.
I agreed with the government. I found that an additional witness would do no good because there was no chemical distinction between cocaine base and crack cocaine. I found that because the substance was lumpy, in addition to its other characteristics, it met the Sentencing Guidelines definition of crack cocaine. However, I also ruled that the Guidelines definition limiting cocaine base to crack did not apply to the statute and that, therefore, Gendron would have been subject to the ten-year mandatory minimum under 21 U.S.C. § 841(b)(1)(A)(iii), even if I had found that the substance were a non-crack form of cocaine base. After hearing a statement from his counsel, I sentenced Gendron to the 120-month mandatory minimum.
Gendron appealed. The Court of Appeals enforced the plea agreement, finding that Gendron entered into the plea agreement and appeal waiver knowingly and voluntarily, and that there were no non-frivolous issues that could have been raised on Gendron's behalf.
On July 13, 2012, Gendron filed a 28 U.S.C. § 2255 motion seeking to vacate, set aside, or correct his sentence, claiming ...