United States District Court, E.D. Missouri, Eastern Division
PATRICK W. ZARITZ, Movant,
UNITED STATES OF AMERICA, Respondent. Criminal No. 4:11-cr-177-JAR-1
MEMORANDUM AND ORDER
A. ROSS, UNITED STATES DISTRICT JUDGE
matter is before the Court is Movant Patrick W. Zaritz's
motion to vacate, set aside, or correct sentence pursuant to
28 U.S.C. § 2255 (Doc. 1). The Government has responded
(Doc. 9). For the following reasons, the motion is DENIED
with prejudice and this case is DISMISSED.
Introduction and Background
February 27, 2012, Movant waived his right to prosecution by
indictment, and entered guilty pleas to the following four
counts, which were charged by information: (1) on April 1,
2010, knowingly and intentionally possessing with the intent
to distribute a mixture or substance containing a detectable
amount of methamphetamine, in violation of 21 U.S.C. §
841(a)(1) (“Count 1”); (2) on April 1, 2010,
knowingly possessing “one or more firearms” in
furtherance of a drug trafficking crime, in violation of 18
U.S.C. § 924(c) (“Count 2”); (3) on April 1,
2010, knowingly possessing an unregistered short barrel
shotgun, in violation of 26 U.S.C. § 5861(d) and
punishable under 26 U.S.C. § 5871 (“Count 3); (4)
on December 20, 2010, knowingly and intentionally possessing
with the intent to distribute a mixture or substance
containing a detectable amount of methamphetamine, in
violation of 21 U.S.C. § 841(a)(1) (“Count 4)
(Crim. Docs. 55-56; 84). In exchange for Movant's guilty
pleas, the Government agreed to, inter alia, dismiss a fifth
count, which charged Movant with knowingly possessing one or
more firearms in furtherance of a drug trafficking crime on
December 20, 2010, and which was punishable by a mandatory,
consecutive 25-year prison sentence (Crim. Docs. 55 at 4; 84
at 5, 19).
parties' written plea agreement set forth the following
relevant facts. On April 1, 2010, law enforcement officers
executed a search warrant at Movant's residence, and
found methamphetamine, indicia of a meth lab, and four
firearms, including a short-barreled, 12-gauge shotgun. The
parties further agreed that expert testimony would have
established that Movant possessed the short-barreled shotgun
to facilitate the distribution of narcotics. On December 20,
2010, law enforcement officers executed another search
warrant at Movant's residence, and found more
methamphetamine, indicia of a meth lab, and four more
firearms (Crim. Doc. 61 at 3-9).
plea agreement specifically stated that, as to Count 2,
Movant admitted that in furtherance of his possession with
the intent to distribute methamphetamine (as charged in Count
1), he had “knowingly possessed a firearm, namely: a
short barreled shotgun” (Id. at 5). The plea
agreement described Count 2 as “Knowingly Possessing a
Short Barreled Shotgun in Furtherance of a Drug Trafficking
Crime, ” and noted that Count 2 was punishable by
“a mandatory minimum term of imprisonment of ten years,
said sentence to run consecutively with any other
sentence” (Id. at 11, 13 (citing 18 U.S.C.
§§ 924(c) and 924(c)(1)(B)(i)). The plea agreement
also indicated that, by pleading guilty, Movant agreed to
waive, as relevant, his right to a jury trial and his right
to require the Government to prove beyond a reasonable doubt
the elements of each offense (Id. at 21).
the February 27, 2012 plea hearing, Movant waived his right
to indictment, and agreed to proceed on the information
(Crim. Doc. 84 at 30-33). Movant signed a waiver of
indictment, indicating that Count 2 charged him with
“Possession of a short-barreled shotgun in furtherance
of a drug trafficking crime” (Crim. Doc. 56). The Court
then conducted the following colloquy with Movant:
THE COURT: [A]s to Count II, that the elements of the offense
are that you committed the crime of possession with intent to
distribute a mixture or substance containing a detectable
amount of methamphetamine[, a] controlled substance to
another person as named in Count 1 of the Indictment. And,
two, in furtherance of the commission of possession with
intent to distribute a mixture or substance containing a
detectable amount of methamphetamine, you knowingly possessed
a firearm, a short-barreled shotgun. Do you agree that you
did those things?
MOVANT: Yes, sir.
. . .
THE COURT: You agree on April the 1st, 2010 and December the
20th, 2010, on both of those dates -
MOVANT: Yes, sir.
THE COURT: - agents and police and law enforcement officers
were at your residence. And on both of those occasions you
were in the possession of methamphetamine; is that correct?
MOVANT: Yes, sir.
THE COURT: And at the time you were in the possession of the
methamphetamine, you knew it was methamphetamine, and you
intended to distribute it, either sell it or ...