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Brown v. United States

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

April 10, 2018

ANTONIO M. BROWN, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM AND ORDER

          STEPHEN N. LIMBAUGH, JR. UNITED STATES 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 Antonio M. Brown, a person in federal custody. On April 20, 2016, Brown pled guilty to the offense of Interference with Commerce by Threat or Violence and Possession of Firearm in Furtherance of a Crime of Violence and, on May 24, 2017, this Court sentenced Brown to the Bureau of Prisons for a term of 120 months on Count 1 and Count 2 to run consecutively for an aggregate term of 240 months, a sentence within the sentencing guideline range. Brown's § 2255 action, which is based on several allegations of ineffective assistance of counsel, is fully briefed and ripe for disposition.

         FACTS

         A. The Indictment:

         On September 17, 2015, a Grand Jury in the Eastern District of Missouri, Southeastern Division, returned a two-count Indictment against Antonio M. Brown. The Indictment charged that, on or about July 1, 2015, Brown, aided and abetted by Julius Jones, committed the crimes of Interference With Commerce by Robbery in violation of Title 18, United States Code, Sections 1951 and 2 (Count I) and Possession of a Firearm in Furtherance of a Crime of Violence in violation of Title 18, United States Code, Sections 924(c)(1) and 2. On September 25, 2015, Brown was arrested and made his initial appearance on the federal charges. After the initial appearance, the Federal Public Defenders Office was appointed to represent Brown. Assistant Federal Public Defender Michael Skrien filed an entry of appearance on the same date, notifying the Court that he would be representing Brown. Brown was arraigned on September 29, 2015. At that arraignment, Brown pled not guilty to the charges.

         B. Pretrial Motions:

         On October 27, 2015, Brown's attorney submitted a Waiver of Filing Pretrial Motions. In that Waiver, Brown's attorney represented that his client did not wish to file pretrial motions. On November 5, 2015, Brown appeared before United States Magistrate Judge Abbie Crites-Leoni and formally waived his right to file pretrial motions and to have an evidentiary hearing regarding pretrial issues. Brown's case was initially set for jury trial or plea on November 19, 2015, but that trial/plea date was continued at various times at Brown's request. Eventually, the case was set for Brown's guilty plea on April 20, 2016.

         C. The Plea Agreement:

         The parties signed a written plea agreement that set out the terms and conditions of Brown's guilty plea to the charge. The government agreed that, in exchange for the Plea Agreement, the government would not bring any further charges against Brown related to Brown's participation in the armed robbery of Curt's Grocery in Kennett, Missouri on July 1, 2015, of which the government was aware of at the time. The parties also agreed:

The parties further agree that either party may request a sentence above or below the U.S. Sentencing Guidelines range (combination of Total Offense Level and Criminal History Category) ultimately determined by the Court pursuant to any chapter of the Guidelines and Title 18, United States Code, Section 3553(a). The parties further agree that notice of any such request will be given no later than ten days prior to sentencing and that said notice shall specify the legal and factual bases for the request.

(DCD 35, p. 2).

         The Plea Agreement contained an agreed-upon Statement of Facts as to Brown's offense conduct:

On July 1, 2015, at around 10:03 p.m., two men wearing face masks entered Curt's Grocery Store in Kennett, Missouri. Curt's Grocery Store is convenience store that sells food and personal items that are supplied from a variety of suppliers that are located in states other than Missouri. Because Curt's Grocery Store receives a substantial amount of its inventory for resale from suppliers from other states, Curt's Grocery Store “affects commerce” as that term is used in Title 18, United States Code, Section 1951.
The two men who entered the store displayed handguns and demanded that the clerk on duty, Lee Sawyer, give them the money from the store. Sawyer refused, and drew his own firearm. The three men began shooting at one another in the store. Sawyer was struck by several rounds fired by the two men and he fell to the floor. The men then took a money bag from behind the county, the cash from the cash register, the money from Sawyer's person, and two firearms from the store. The amount of cash taken during the robbery was approximately $11, 000. That money was the property of Curt's Grocery Store. The men were observed by other people in the store getting into a silver Toyota passenger car. A call was placed to the Kennett police department by a witness who reported the robbery and a description of the getaway car.
Kennett Police Officer Phillip Caldwell heard about the robbery on his vehicle radio while he was on patrol in Kennett. He started driving toward the store, but soon met a speeding silver Toyota vehicle. Caldwell turned his patrol vehicle around and gave chase. The Toyota fled at high speeds from Kennett to Blytheville, Arkansas. During the flight, two persons riding in the back seat of the Toyota fired handguns at the officer's car. Eventually, the Toyota crashed in Blytheville. The three men fled from the scene of the crash. Antonio M. Brown was captured a short distance from the Toyota.
On July 7, 2015, Brown spoke to an Arkansas state police officer about the robbery. Brown stated that he, Julius Jones and Dontario Jones robbed Curt's Grocery Store. Brown said that he was the driver of the Toyota that evening and that Julius Jones and Dontario Jones went in the store with handguns to rob it. The three men had planned the robbery earlier that evening. Brown stated that Julius Jones and Dontario Jones shot at the officer pursuing them from Kennett.
Julius Jones and Dontario Jones were captured later. The stolen money was never recovered. Six firearms were found in or near the wrecked Toyota, including the two firearms stolen during the robbery. The robbery of Curt's Grocery Store occurred in the Eastern District of Missouri, in the Southeastern Division.

(DCD 35, pp. 3-4).

         The parties agreed that the base offense level for Count I was 20 (pursuant to U.S.S.G. Section 2B3.1(a)), that six levels should be added because the victim sustained a life-threatening injury (pursuant to U.S.S.G. Section 2B3.1(b)(3)(C)) and that 2 levels should be added because the defendant recklessly created a substantial risk of death or serious bodily injury to another person in the course of fleeing from a law enforcement officer (pursuant to U.S.S.G. Section 3C1.2). The parties agreed that Brown would receive a reduction of three levels for acceptance of responsibility (pursuant to U.S.S.G. Section 3E1.1(a) and (b)), resulting in a Total Offense Level of 25 for Count I. (DCD 35, p. 5, 6) The parties agreed that there were no Guidelines offense levels applicable for Count II. (DCD 35, p. 5)

         Brown and the government agreed to waive their rights to appeal all non-jurisdictional, non-sentencing issues, including, but not limited to, any issues relating to pretrial motions, discovery, and the guilty plea. Both parties retained their rights to appeal all sentencing issues. (DCD 35, p. 7). Brown agreed to waive his right to file a petition pursuant to Title 28, United States Code, Section 2255, except for claims of prosecutorial misconduct or ineffective assistance of counsel. (DCD, p. 8).

         The written Plea Agreement contained the parties' acknowledgment that the maximum punishment for Count I, Interference With Commerce by Robbery, was a term of imprisonment of twenty years. The parties agreed that the maximum punishment for Count II, Possession of a Firearm in Furtherance of a Crime of Violence, was life, and that the term of imprisonment for this crime required a mandatory, minimum term of imprisonment of ten years, which must be served consecutively to the sentence for Count I and any other undischarged sentence of imprisonment that the defendant had been ordered to serve. (DCD 35, p. 5)

         D. The Change of Plea Hearing:

         On April 20, 2016, this Court conducted a plea hearing in this case in which Brown changed his plea to guilty. In that plea, Brown agreed that he was aware of the terms and conditions set out in his written Plea Agreement:

Court: The lawyers have given me this written guilty plea agreement consisting of 13 pages. I see that you and the lawyers have signed it on the last page; is that right?
Brown: Yes, sir.
Court: Have you read the agreement?
Brown: Yes, sir.
Court: Have you gone over it in detail with your lawyer?
Brown: Yes, sir.
Court: Has he explained the contents of the agreement in detail to you?
Brown: Yes, sir.
Court: And do you understand the contents of the agreement?
Brown: Yes, sir.
Court: Is there anything in here that you do not understand?
Brown: No. Actually, I understand it.
Court: Have any promises been made by anyone to get you to plead guilty - - Brown: No, sir.
Court: - - other than the promises set out in this agreement?
Brown: No, sir.
Court: So this is the complete, full and total agreement; right?
Brown: Yes, sir.

         Plea Tr. pp. 7, 8.

Brown agreed that he understood how the Sentencing Guidelines worked in his case:
Court: Has your lawyer explained to you the sentencing guidelines?
Brown: Yes, sir.
Court: So you'll understand after your plea I'll get with the probation officer, and we'll calculate the sentencing guidelines by using your criminal history - - that's your criminal record - - along with what we call the total offense level for these offenses. Those are ...

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