United States District Court, E.D. Missouri, Southeastern Division
MEMORANDUM AND ORDER
STEPHEN N. LIMBAUGH, Jr., District Judge.
This matter is before the Court on a motion under 28 U.S.C. § 2255 to vacate, set aside or correct sentence by Charla Dinkins, a person in federal custody. On March 10, 2014, Dinkins plead guilty before this Court to the offense of interference with commerce by threat or violence and aiding and abetting the possession of a firearm in furtherance of a crime of violence and, on June 9, 2014, this Court sentenced Dinkins to the Bureau of Prisons for a term of 102 months. Dinkins' § 2255 motion, which is based on several allegations of ineffective assistance of counsel, is fully briefed and ripe for disposition.
A. The Indictment.
On August 15, 2013, a grand jury for the Eastern District of Missouri, Southeastern Division, returned a two-count indictment against four defendants; Charla Dinkins, Darryl House, Kevin Stitt and Keyessence Fountain. Count I of that Indictment charged that the four defendants, aided and abetted by each other, committed the offense of Interference With Commerce by Robbery in violation of Title 18, U.S.C., §§ 1951 and 2. Count II of that Indictment charged that the four defendants, aided and abetted by each other, Possessed a Firearm in Furtherance of a Crime of Violence in violation of Title 18, U.S.C., §§ 924(c) and 2. The allegations of Count II provided that the firearm was brandished during the commission of that crime. At the time of the Indictment, Charla Dinkins was incarcerated in state custody for the same offense conduct as the federal charge.
The offense conduct charged in the Indictment was that the four defendants used a firearm to commit an armed robbery of the Jayson Jewelry store in Cape Girardeau, Missouri, on September 23, 2009.
Dinkins was brought into federal court pursuant to a writ and made her first appearance on September 11, 2013, before United States Magistrate Judge Lewis M. Blanton. Attorney Amanda L. Oesch was appointed to represent Dinkins.
B. Pretrial Motions.
On October 21, 2013, Dinkins' attorney filed a waiver of Dinkins' right to file pretrial motions. On October 30, 2013, Dinkins appeared before Judge Blanton and waived her right to file pretrial motions. The case was set for a guilty plea hearing on January 27, 2014.
C. The Plea Agreement.
Dinkins and the Government reached a plea agreement that was reduced to writing. That Plea Agreement sets out the parties' bargain and understandings as to the disposition of her case.
Dinkins agreed to plead guilty to Count I (Aiding and Abetting the Interference With Commerce by Robbery) and Count II (Aiding and Abetting the Possession of a Firearm During and In Relation to a Crime of Violence) of the Indictment. The Government agreed that it would not charge Dinkins with any other crimes related to the robbery of Jayson Jewelers on September 23, 2009. The parties agreed that either party could request a sentence above or below Dinkins' applicable Sentencing Guideline range.
Dinkins and the Government agreed to a Statement of Facts for her offense conduct that was set out in the Plea Agreement. Those facts that Dinkins agreed to are as follows:
On September 23, 2009, at around 10:30 a.m., Charla Dinkins parked her rented vehicle across the street from the Jayson Jewelers store on Kingshighway Street in Cape Girardeau, Missouri. Kevin Stitt, Darryl House and Keyessence Fountain were in the car with Dinkins. The four had driven to Cape Girardeau from Memphis, Tennessee. Charla Dinkins had rented a vehicle for that trip. On that morning, the four of them had decided to commit an armed robbery of the Jayson Jewelers store. Dinkins, Fountain and Stitt had seen Darryl House with a handgun and knew that he was going to use the handgun to commit the robbery. The plan was that Dinkins was to be left with the car as a getaway driver while the other three entered and took jewelry and other valuables from the store.
As soon as they could determine that the store was open and no customers were present, Dinkins drove her car to a location near the jewelry store. Kevin Stitt and Keyessence Fountain got out of the rental car and entered the Jayson Jewelers store, posing as a couple interested in wedding rings. Debra Drerup was the store clerk on duty that day. Ms. Drerup asked if she could help the couple. Stitt and Fountain replied that they would like to see some wedding rings. Ms. Drerup seated the couple at a counter and began to show them some rings. Shortly after that, Darryl House entered the store carrying a silver handgun. House pointed the handgun at Ms. Drerup. Drerup saw the handgun and realized that the three people were about to rob the jewelry store. Drerup, who was afraid of being hurt if she resisted, went with Stitt into a back room. Stitt placed handcuffs on her wrists, then wrapped duct tape on top of the handcuffs and over her eyes. Ms. Drerup was then left in the back room. House, Stitt and Fountain took jewelry and cash from the store, then walked out to a car being driven by Charla Dinkins. The four then left to return to Memphis, Tennessee. After a short while, Ms. Drerup pulled the tape off and was able to call the police. Officers arrived and discovered that $91, 216 in jewelry and $300 in cash had been taken from the store. No suspects were identified from the initial investigation. Samples from the store were submitted to the Missouri State Highway Patrol laboratory for their analysis.
On May 21, 2012, Cape Girardeau police officers received a report from the laboratory that DNA had been recovered from the handcuffs used to secure Ms. Drerup. That DNA matched a known sample taken from Kevin Stitt, who was in a prison in Tennessee at that time. Cape Police Sergeant Don Perry went to speak with Stitt at prison. After a short time, Stitt admitted that he, House, Fountain and Dinkins robbed the jewelry store. He said that the four drove from their homes in Memphis to Cape Girardeau for the purpose of robbing the jewelry store. House and Dinkins had purchased a set of handcuffs the night before to use in securing the store clerk. Stitt reported that House took the jewelry stolen from the store and disposed of it.
The jewelry stolen from Jaysons Jewelers was manufactured in a location other than the State of Missouri and affected interstate and/or foreign commerce. The location of the robbery of the Jayson Jewelry store was in Cape Girardeau County, within the Eastern District of Missouri.
By this plea, Charla Dinkins admits that she participated in the armed robbery of the Jayson Jewelers store by acting as the getaway driver and that she was part of an agreement between herself, House, Fountain and Stitt to rob the jewelry store with Darryl House's firearm.
The parties agreed that the offense level applicable to Count I was 20, pursuant to U.S.S.G., § 2B3.1(a). Dinkins and the Government agreed that 2 levels should be added pursuant to U.S.S. G., § 2B3.1(b)(4)(B), because a victim was physically restrained to facilitate the commission of the offense and to facilitate the escape. The parties also agreed that 2 levels should be added pursuant to U.S.S.G., § 2B3.1(b)(7)(C), because the loss resulting from the robber exceeded $50, 000. The Plea Agreement provided that Dinkins would receive the full reduction for acceptance of responsibility of 3 levels. The parties agreed that the Total Offense Level should be set at 21. The parties agreed that there was no applicable offense level for Count II as the punishment for that offense was set by statute at seven years imprisonment to be served consecutively.
The parties agreed to waive their rights to appeal all non-sentencing issues, and agreed to waive their right to appeal any sentence within the applicable Guideline range. Dinkins also agreed to waive her right to appeal any sentence below the applicable Guideline range.
Dinkins agreed to waive her right to file any post-conviction pleading, including a § 2255 petition, except for claims of prosecutorial misconduct or ineffective assistance of counsel. That waiver was set out as follows:
The defendant agrees to waive all rights to contest the conviction or sentence in any post-conviction proceeding, including one pursuant to Title 28, United States Code, Section 2255, except for claims of prosecutorial misconduct or ineffective assistance of counsel.
D. Guilty Plea Hearing.
Dinkins and her attorney appeared before this Court on March 10, 2014, in order to plead guilty to the Indictment, pursuant to their written Plea Agreement. This Court set the case for a sentencing hearing on June 9, 2014.
E. The Presentence Investigation Report.
After the plea, United States Probation Officer Kenneth W. Lawrence prepared a Presentence Investigation Report (PSR) for the District Court. The PSR recommended that Dinkins receive a total offense level of 21 for Count I, which was the same level as agreed to by the parties in their Plea Agreement. Count II did not have any offense levels, but carried a mandatory minimum term of imprisonment of seven years, to be served consecutively with any other sentence. (PSR, ¶ 29-39)
The PSR recommended a Sentencing Guideline range of 37 to 46 months for Count I and ...