United States District Court, E.D. Michigan, Northern Division
For United States of America, Plaintiff (1:13-cr-20120-TLL-PTM-1): Anca I. Pop, LEAD ATTORNEY, United States Attorney, Bay City, MI.
Cassial Urone Garner, Petitioner (1:14-cv-12142-TLL), Pro se, MILAN, MI.
Patricia T. Morris, United States Magistrate Judge. DISTRICT JUDGE THOMAS L. LUDINGTON.
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION AFTER EVIDENTIARY HEARING
Patricia T. Morris, United States Magistrate Judge
For the reasons set forth below, IT IS RECOMMENDED that Petitioner Garner's motion to vacate sentence, (Doc. 20), be DENIED and that the government's motion to dismiss, (Doc. 28), be GRANTED.\
A. Background & Procedural History
On February 13, 2013, Petitioner, Cassial Garner (" Garner"), was charged with " knowingly and intentionally possess[ing] with intent to distribute 28 grams or more of cocaine base . . . in violation of Title 21, United States Code, Sections 841(a)(1) and 841(b)(1)(B)(iii)." (Information, Doc. 9 at 1.) On February 14, 2013, the United States filed notice that Garner's penalty was subject to enhancement under 21 U.S.C. § 851 because of his prior felony drug convictions. (Penalty Enhancement Information, Doc. 10.)
On February 21, 2013, Garner entered into a Rule 11 Plea Agreement with the United States for the offense of " Possession with Intent to Distribute Cocaine Base" in violation of 21 U.S.C. § § 841(a)(1), 841(b)(1)(B)(iii) with statutory penalties of ten years to life in prison, supervised release of eight years to life, and a fine of up to $10, 000, 000. (Doc. 14 at 1). Garner stipulated that he had been convicted of " delivering or manufacturing less than 50 grams of controlled substance" on February 16, 1995 and of " possessing less than 25 grams of a controlled substance . . ." on May 26, 2005, January 29, 2007, and January 5, 2010. (Id. at 2-3.)
There were no Sentencing Guideline disputes in the Plea Agreement; both parties agreed on a range of 151 to 188 months. (Id. at 4.) Garner's offense level was calculated as a thirty-one: his base offense level was thirty, see U.S.S.G. § 2D1.1(c)(5), with a two level increase for " [m]aintaining a premises for the purpose of distributing cocaine, " see U.S.S.G. § 2D1.1(b)(12); a two level increase for " [p]ossession of a firearm, " see U.S.S.G. § 2D1.1(b)(1); and a three level reduction for accepting responsibility, see U.S.S.G. § 3E1.1. (Doc. 14 at 11, 14.) Next, Garner was assigned seven criminal history points which put him in category four. (Doc. 14 at 12-13.) The Federal Sentencing Guidelines Sentencing Table prescribes a range of 151 to 188 months for an offense level of thirty one and a criminal history category of four. U.S.S.G. ch. 5, pt. A.
Three of the seven criminal history points were derived from U.S.S.G. § 4A1.1(a), which attributes three points to a previous offense that resulted in a sentence of imprisonment that exceeded thirteen months where the qualifying sentence " resulted in the defendant's confinement during any part of the fifteen year period" preceding the " commencement of the instant offense." However, Garner was released from prison on November 28, 1997 from the qualifying prior offense, (Doc. 14 at 12), and the instant offense occurred on November 29, 2012, (Doc. 17 at 21); this is a difference of fifteen years and one day and therefore U.S.S.G. § 4A.1.1(a) would not have applied. The presentence investigation report properly reflected four criminal history points instead of seven; this put Garner in a criminal history category of three instead of four and modified his range from 151 to 188 months to 135 to 168 months. (Doc. 27 at 4.)
The Plea Agreement also stated that " [n]either party may take a position concerning the applicable guidelines that is different from that reflected in the attached worksheets, except as necessary to the court's determination regarding defendant's criminal history, acceptance of responsibility, and obstruction of justice." (Doc. 14 at 5.) Garner could withdraw from the agreement and his guilty plea only if the Court's sentence was higher than the Plea Agreement's range. (Doc 14 at 7.)
Garner also agreed that as long as he was not sentenced to more than the agreed-upon range, he waived his right to appeal and to collaterally attack his conviction and sentence. (Id.) Specifically, the Plea Agreement stated that Garner " knowingly and voluntarily waive[d]" these rights and agreed " not to contest his conviction or sentence in any ...