United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
AUDREY G. FLEISSIG, District Judge.
This matter is before the Court on Petitioner Gauntlett McCarter's motion filed under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. Petitioner pled guilty to a drug offense and was sentenced to the mandatory minimum of 120 months' imprisonment. He now claims that his counsel was ineffective by misadvising him not to pursue a motion for the suppression of evidence seized during a traffic stop and failing to conduct an investigation into the legality of the seizure; and by failing to seek a sentence below the United States Sentencing Guidelines (the "Guidelines") advisory range and statutory minimum in light of Petitioner's minimal role in the offense. For the reasons set forth below, the motion shall be denied.
On December 2, 2011, Petitioner was charged with two counts in a 17-person, 20 count indictment. In Count III he was charged with conspiracy to distribute and possession with intent to distribute in excess of five kilograms of cocaine and 50 grams of cocaine base; and in Count X he was charged with possession with intent to distribute cocaine base in excess of 50 grams, in violation of 21 U.S.C. § 841(b)(1)(A). (Case No. 4:10CR00618 AGF, Doc. No. 1.)
The Government asserts, and Petitioner does not contest that wiretap interceptions identified Petitioner as involved in co-defendant William Gholson's drug distribution efforts. The Government further asserts that by January 16, 2010, there was probable cause to believe that Petitioner would be transporting drugs that afternoon. He was thereafter observed leaving Gholson's house with a backpack, later determined to contain cocaine base. However, to protect the secrecy of the electronic surveillance of a codefendant's phone, the police were instructed to wait until Petitioner committed a traffic violation before stopping his vehicle. On January 16, 2010, police stopped the rental car Petitioner was driving for operating a vehicle with expired plates, and failing to signal. (Doc. No. 9 at 26.) A search revealed the cocaine base and a scale in the backpack Petitioner had been seen with, and Petitioner was arrested. Counsel was appointed to represent Petitioner the next day.
By letter dated February 16, 2011, the Government listed incriminating phone calls made to or by Petitioner and noted that the Government had a cooperating witness or witnesses who would implicate Petitioner. On May 11, 2011, Petitioner waived pretrial motions at a status hearing before a Magistrate Judge. At the hearing, Petitioner acknowledged that he wished to waive his right to challenge the constitutionality of any seizure by the Government. (Case No. 4:10CR00618 AGF, Doc. Nos. 305, 839-1.)
At a hearing on July 13, 2011, at which Petitioner was present, the Government introduced evidence of a prior felony drug conviction and it was explained to Petitioner that inasmuch as he had this prior conviction, if the Government chose to file for a sentence enhancement under 21 U.S.C. § 851, Petitioner could face a maximum sentence of life in prison. Id. Doc. No. 837.
On July 15, 2011, Petitioner and the Government entered into a written plea agreement pursuant to which Petitioner would plead guilty to Count X of the indictment and the Government would dismiss Count III and bring no further federal prosecutions in this District related to Petitioner's participation in the conspiracy. The agreement stated that Petitioner fully understood that Count X carried a mandatory minimum term of imprisonment of 10 years, with the maximum penalty being life imprisonment. The Government agreed not to seek any sentencing enhancement under 21 U.S.C. §851 and both parties agreed not to seek a sentence above or below the Guidelines advisory range. Petitioner stipulated to the following facts:
Based on police surveillance, both physical and electronic, law enforcement seizures and forensic evidence the following evidence would be adduced if Gauntlett McCarter, hereinafter "defendant" elected to go to trial.
On January 16, 2010 defendant was stopped by officers with the St. Louis Metropolitan Police Department pursuant to an ongoing investigation. The officers searched a black backpack that defendant had previously been seen with and located cocaine base, a/k/a "crack cocaine, " and a scale. Defendant was searched and found to have 2.8 grams of heroin on his person. The laboratory analysis revealed that the cocaine base, a/k/a "crack cocaine, " weighed 355.07 grams. Defendant admits that he intended to distribute some or all of the cocaine base, a/k/a "crack cocaine, " to another person or persons.
Id. Doc. 410.
The parties' agreement held Petitioner accountable only for the quantity of drugs that were seized from him, not seeking to hold him accountable for other quantities reasonably foreseeable to him in connection with the conspiracy. As such, the parties agreed that Petitioner's Base Offense Level under the Guidelines was 32, from which three levels would be deducted pursuant to Guidelines § 3E1.1(a) and (b) for Petitioner's acceptance of responsibility and timely notifying the Government of his intent to plead guilty. This resulted in a Total Offense Level of 29. Petitioner agreed to waive all rights to appeal all sentencing issues other than the determination of his Criminal History Category, which was left to the Court's determination, provided the Court accepted the plea and the agreed-upon Total Offense Level, and sentenced him within or below the Guidelines range. Id.
At the guilty plea hearing held on the day the plea agreement was executed, Petitioner represented under oath that he was satisfied with his attorney's performance and that his attorney did everything he asked him to do and there was nothing Petitioner could think of that his attorney should have done but did not do in representing Petitioner. Petitioner stated that he understood the terms of the plea agreement and the sentencing ramifications if he pleaded guilty. The Court explained the sentencing procedure in general, noting that after it calculated what the sentencing range would be under the Guidelines, the Court would consider other statutory sentencing factors under 18 U.S.C. § 3553 to determine what sentence to impose. Petitioner acknowledged his understanding that one of the terms of the plea agreement was that neither he nor the Government would request a sentence above or below the Guidelines range ultimately determined by the Court. Petitioner was also expressly advised and acknowledged that he understood that Count X carried a mandatory minimum term of imprisonment of ten years. The Court ascertained the factual basis for the guilty plea and accepted the plea as knowing, intelligent, and voluntary. (Case No. 4:10CR00618, Doc. No. 715.)
Petitioner's Presentence Investigation Report ("PSI") found that Petitioner had four criminal history points due to prior convictions. His Criminal History Category was III, which, with a Total Offense Level of 29, resulted in a Guidelines sentencing range of 108-135 months. The PSI noted that the statutory minimum for Count X was 120 months and so the Guidelines sentencing range changed to 120-135 months. The PSI also described the impact of the plea agreement, noting that had a notice under 21 U.S.C. § 851 been filed, Petitioner would have been subject to a mandatory ...