United States District Court, W.D. Missouri, Western Division
DEANDREA S. GRAY, Movant,
UNITED STATES OF AMERICA, Respondent. Crim. No. 4:10-099-DGK
ORDER GRANTING IN PART MOTION FOR POSTCONVICTION RELIEF AND CERTIFICATE OF APPEALABILITY
GREG KAYS, Chief District Judge.
This habeas case arises out of Movant Deandrea S. Gray's agreement to plead guilty to possession with intent to distribute cocaine and possession of a firearm in furtherance of a drug trafficking crime. The parties agree that the intent of the plea agreement was for Gray to plead guilty to possession with intent to distribute more than 50 grams of cocaine, a violation of 21 U.S.C. § 841(b)(1)(C). However, he mistakenly pled guilty to, and was sentenced under, the wrong statute: 21 U.S.C. § 841(b)(1)(B).
Now before the Court is Gray's pro se "Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence By a Person in Federal Custody" (Doc. 1). Because the information failed to allege an essential element of the crime to which Gray pled guilty and this error violated a substantial right and prejudiced him, the motion is GRANTED IN PART. Pursuant to 28 U.S.C. § 2255(b), the Court issues an amended judgment stating that on Count One Gray is guilty of violating "21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C)." Additionally, since this case raises several important questions and Gray has made a substantial showing of the denial of a constitutional right, the Court issues a certificate of appealability on three issues.
Background and Procedural History
On March 23, 2010, Kansas City, Missouri, police officers observed Gray leave a suspected drug house and drive away in a Dodge Durango. After the police stopped the Durango, Gray and a passenger, Gerome King, attempted to flee on foot. The police caught both. During a subsequent search of the Durango, the police found two clear plastic bags containing a 262.12 grams of powder cocaine, $1, 749 in U.S. currency, a stolen Desert Eagle.44 magnum handgun, and a Glock 9 mm handgun with 26 rounds in the magazine and one in the chamber. During a subsequent search of the drug house, the police recovered cocaine base, more powder cocaine, and several weapons. At the time of his arrest, Gray was a felon, having pled guilty to first degree assault in Missouri state court in 1992.
On April 6, 2010, a grand jury returned a three-count indictment charging Gray and King with conspiracy to distribute 50 grams or more of cocaine base (Count One); possession of firearms in furtherance of a drug trafficking crime (Count Two); and being a felon in possession of a weapon (Count Three). At the time, Count One carried a sentence of ten years to life, and Count Two carried a sentence of five years to life to be served consecutively. Had Gray been found guilty on just Count One and Two, he faced a statutory minimum sentence of fifteen years' imprisonment and a possible maximum sentence of life imprisonment.
At the time Gray was indicted, possession with intent to distribute 50 grams or more of cocaine base carried a ten-year mandatory minimum sentence under 21 U.S.C. § 841(b)(1)(A). After Gray's indictment, but prior to his change of plea, Congress passed the Fair Sentencing Act of 2010 ("the FSA"), which reduced the sentencing disparity created by treating one gram of cocaine base as equivalent to 100 grams of powder cocaine. The FSA did so by raising the amount of cocaine base necessary to qualify for the ten-year minimum sentence under § 841(b)(1)(A) to 280 grams, and raising the amount of cocaine base necessary to qualify for a five-year minimum sentence under § 841(b)(1)(B) to 28 grams. The FSA left untouched the requirement that a defendant be responsible for 500 grams or more of powder cocaine to be subject to a five-year mandatory minimum under § 841(b)(1)(B).
The Information and Plea Agreement
On or about October 21, 2010, Gray, through counsel, struck a plea bargain with the Government that lowered his maximum possible sentence. The terms of the deal, including the parties' respective admissions and responsibilities, were memorialized in a written plea agreement ("the Plea Agreement"). Gray agreed to plead guilty to a newly filed, two-count information ("the Information"). Count One of the Information replaced the conspiracy to distribute cocaine base charge with a charge of possession with intent to distribute 50 grams or more of cocaine powder. It stated Gray "knowingly and intentionally possessed with intent to distribute 50 grams or more of [powder] cocaine... in violation of Title 21, United States Code, Sections 841(a)(1) and (b)(1)(B). " Information at 1 (emphasis added). The Information's header cited "21 U.S.C. §§ 841(a)(1), (b)(1)(B)" as the applicable statutes and listed the applicable range of punishment as "NLT 5 Years, NMT 40 years' imprisonment." Id. Count Two of the Information was identical to Count Two of the Indictment.
The Information and Plea Agreement correctly stated that possession with intent to distribute 50 grams or more of powder cocaine was a violation of 21 U.S.C. § 841(a)(1), but incorrectly stated that § 841(b)(1)(B) supplied the applicable range of punishment. Information at 1; Plea Agreement at ¶ 5. In fact, § 841(b)(1)(B) would have applied if the defendant possessed more than 500 grams of powder cocaine, and it carried a statutory range of punishment of five to forty years' imprisonment. 21 U.S.C. § 841(b)(1)(B). Thus, § 841(b)(1)(C) should have applied because Gray possessed less than 500 grams of powder cocaine, and the punishment imposed should have been not more than twenty years' imprisonment, with no statutory minimum. 21 U.S.C. § 841(b)(1)(C). The Information and Plea Agreement correctly stated that Count Two carried a sentence of five years to life, to be served consecutively to the sentence imposed on Count One. Information at 1; Plea Agreement at ¶ 5.
In the "Factual Basis for Guilty Plea" section of the Plea Agreement, the parties agreed that the police found 262.12 grams of powder cocaine and $1, 749 in U.S. currency in the Durango. Plea Agreement at ¶ 3. Gray also acknowledged he knew he was in possession of powder cocaine; he possessed with intent to distribute 50 grams or more of powder cocaine; and that he committed the crime of possession with intent to distribute cocaine. Id. But here, too, the parties referenced the wrong statutory subsection to supply the range of punishment on Count One. In the "Statutory Penalties" section of the agreement, Gray acknowledged that by pleading guilty to Count One "charging him with possession with intent to distribute 50 grams or more of cocaine, the minimum penalty the Court may impose is five years, while [the] maximum penalty the Court may impose is not more than forty years of imprisonment." Id. at ¶ 5.
In the "Waiver of Appellate and Post-Conviction Rights" section of the Plea Agreement, Gray acknowledged that he waived "his right to appeal or collaterally attack a finding of guilt... except on grounds of (1) ineffective assistance of counsel; or (2) prosecutorial misconduct." Id. at ¶ 15(a). He also waived "his right to appeal his sentence, directly or collaterally, on any ground except claims of (1) ineffective assistance of counsel; (2) prosecutorial misconduct; or (3) an illegal sentence." Id. at ¶ 15(b). The Plea Agreement defines an "illegal sentence" as "a sentence imposed in excess of the statutory maximum, but does not include less serious sentencing errors, such as a misapplication of the Sentencing Guidelines, an abuse of discretion, or the imposition of an unreasonable sentence." Id.
Finally, Gray acknowledged that the Court would consult the Sentencing Guidelines in determining his punishment, though the Guidelines were only advisory. He agreed the Court could impose a sentence less than or greater than the Guidelines, as long as the sentence was within the statutory range of punishment. Id. at ¶¶ 6, 10.
Gray's Change of Plea and Sentencing
On October 21, 2010, Gray pled guilty in open court pursuant to the Plea Agreement. During the change of plea hearing, the Court-relying on the range of punishment information listed in both the Information and the Plea Agreement-incorrectly advised Gray that the applicable statutory range of punishment on Count One was five to forty years' imprisonment, but correctly advised him that the statutory range of punishment on Count Two was five years to life, to be served consecutively to the sentence imposed on Count One. The Court also incorrectly told him that by pleading guilty to the Information, he faced a total statutory minimum of "at least ten years in prison, " and that the total maximum sentence was life imprisonment. The Court should have told him that the total statutory minimum was only five years' imprisonment.
The Court sentenced Gray on July 27, 2011. At the time, the Court understood Gray had pled guilty under Count One to "possession with intent to distribute 50 grams or more of cocaine, " and that § 841(b)(1)(B) provided the applicable range of punishment. Tr. of July 27, 2011, Sentencing Hr'g at 4. The Court began the guidelines calculation with a statutory range of punishment of five to forty years' imprisonment. Because Gray was a career offender under the Career Offender Table, the applicable Guidelines range of punishment was 262 to 327 months' imprisonment. This was the same range of punishment Gray faced if he were properly sentenced as a career offender under § 841(b)(1)(C). After considering all of the relevant factors, including the 18 U.S.C. § 3553(a) sentencing factors, Gray's arguments, and his allocution, the Court sentenced Gray to 130 months' imprisonment on Count One and 60 months' imprisonment, the statutory minimum, on Count Two. As required by the weapons statute, the Court ordered the sentences to run consecutively for a total of 190 months' imprisonment.
The judgment ("Judgment") issued shortly afterward was consistent with the Court's oral pronouncement. It stated that the "nature of [the] offense" on Count One was "Possession With Intent to Distribute 50 Grams or More of Cocaine, " and that the Court adjudicated Gray guilty under "21 U.S.C. 841(a)(1) and (b)(1)(B)."
His Appeal and Collateral Attack
Gray filed an appeal challenging his sentence. United States v. Gray, No. 11-2726 (8th Cir. filed Aug. 11, 2011). The Eighth Circuit dismissed this appeal on the Government's motion based on the Plea Agreement's appellate waiver provision. United States v. Gray, No. 11-2726 (8th Cir. Feb. 3, 2012).
On September 20, 2013, Gray timely filed the pending § 2255 petition collaterally attacking his conviction and sentence. His initial brief raised four general grounds for relief. In its response, the Government argued that most of Gray's arguments had either been waived under the Plea Agreement or procedurally defaulted. Gov't Resp. (Doc. 6) at 15. The Government also disclosed that in preparing its response to Gray's initial brief, it discovered that both the Information and the Plea Agreement "erroneously cited 21 U.S.C. § 841(b)(1)(B), rather than § 841(b)(1)(C), regarding the statutory range of punishment" for Count One. Id. at 20-21.
In his reply brief, Gray raised three new arguments relating to this error. Resp. to Gov't. Resp. (Doc. 8). The Court then asked (Doc. 9) the Government to file additional briefing responding to the arguments raised in Gray's reply brief. The Court also instructed the Government to brief two additional issues: (1) whether Gray's conviction under § 841(b)(1)(B) prejudiced him by leaving him with a conviction for a more serious offense than he actually committed; and (2) assuming the Court would have imposed the same sentence on Gray had he been convicted under § 841(b)(1)(C) because he was a career offender, could the Court cure any error regarding his record by correcting the judgment under Rule 36 to show it convicted him under § 841(b)(1)(C).
The Government timely filed a sur-reply (Doc. 10) addressing all of Gray's arguments and the Court's concerns. The sur-reply did not argue waiver or procedural default with ...