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Zaritz v. United States

United States District Court, E.D. Missouri, Eastern Division

February 2, 2017

PATRICK W. ZARITZ, Movant,
v.
UNITED STATES OF AMERICA, Respondent. Criminal No. 4:11-cr-177-JAR-1

          MEMORANDUM AND ORDER

          JOHN A. ROSS, UNITED STATES DISTRICT JUDGE

         This 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.

         I. Introduction and Background

         On 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).[1] 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).

         The 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).

         The 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).

         During 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 ...

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