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Brown v. United States

United States District Court, N.D. Illinois, Eastern Division

November 9, 2016

TERRENCE BROWN, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION AND ORDER

          Robert M. Dow, Jr. United States District Judge.

         This matter is before the Court on: (1) Petitioner Terrence Brown's motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 [1], including the two claims that Petitioner added to his Section 2255 petition with leave of Court (see [6], [8]); and (3) Petitioner's motion for leave to amend his Section 2255 petition to add another claim based on newly discovered evidence [11]. For the reasons stated below, Petitioner's Section 2255 petition [1] and motion to amend [11] are denied. The Court declines to certify any issue for appeal pursuant to 28 U.S.C. § 2253(c)(2) and directs the Clerk to enter judgment in favor of the United States.

         I. Background

         Petitioner Terrence Brown ("Petitioner") is currently serving a 228-month sentence after being convicted by a jury of possession with intent to distribute five or more kilograms of cocaine in violation of 21 U.S.C. § 841(a)(1) and possession of a firearm in relation to a drug trafficking offense in violation of 18 U.S.C. § 924(c)(1)(A). See United States v. Rowe et al, Case No. 08-CR-1009, Docket Entries [181], [240]. The conviction relates to Petitioner's attempt to purchase ten kilograms of "sham" cocaine (a cocaine look-alike substance) from an undercover officer of the U.S. Drug Enforcement Agency ("DEA"). Specifically, on December 3 and 4, 2008, Petitioner and an individual working as a cooperating source with the DEA spoke on the telephone to arrange the delivery of 10 kilograms of cocaine to Petitioner. These calls were recorded with the cooperating source's consent. As a result of the calls, the DEA arranged for an undercover officer to meet Petitioner and deliver 10 kilograms of sham cocaine.

         On December 4, 2008, Petitioner and Lynn Rowe ("Rowe") arrived together in the area of 31st and Normal Street in Chicago. Petitioner was driving a blue Dodge Durango and Rowe was in the passenger seat. Petitioner and Rowe pulled into a nearby alley, where they met the undercover officer. The undercover officer got into the Durango through the rear driver's side door and placed a 10 kilogram bag of sham cocaine on the back seat. Rowe looked inside the bag and appeared to be counting the kilograms. Petitioner then handed Rowe a leather bag that contained approximately $14, 700 in cash. Rowe passed the leather bag with the money to the undercover officer. The undercover officer took the money and exited the Durango. Petitioner and Rowe were arrested. Law enforcement officers searched the Durango. They discovered a trap compartment in the vehicle, which contained a loaded Lorcin Model L-380, .380 caliber pistol.

         Following his arrest, Petitioner waived his Miranda rights in writing and agreed to speak with law enforcement agents. He admitted that he went to 31st and Normal Street earlier in the day to obtain 10 kilograms of cocaine. He also admitted that he had known the supplier for many years and that they had agreed to a purchase price of $28, 500 per kilogram for the drugs. According to Petitioner, the cash was a partial payment for the cocaine and he intended to sell it in small quantities. Petitioner also admitted that the gun retrieved from the trap compartment was his, that he had owned the gun for approximately ten years, and that he carried it for protection.

         Petitioner was charged in the superseding indictment with: (1) possession with intent to distribute five or more kilograms of cocaine in violation of 21 U.S.C. § 841(a)(1) (Count One); (2) attempted possession with intent to distribute five or more kilograms of cocaine in violation of 21 U.S.C. § 846 (Count Two); and (3) possession of a firearm in relation to a drug trafficking offense in violation of 18 U.S.C. § 924(c)(1)(A) (Count Three). Petitioner pled not guilty to all charges. Count One of the indictment was dismissed prior to trial. See Case No. 08-CR-1009, Docket Entries [115], [118].

         Petitioner was tried by a jury on the remaining counts beginning on January 10, 2011. Petitioner admitted that he attempted to purchase 10 kilograms of sham cocaine (see [9] at 3 n.2), but disputed that he "possessed a firearm in furtherance of a drug trafficking crime." [1] at 2. Specifically, Petitioner testified that he spoke with his supplier by telephone to arrange for a cocaine purchase, that he met with the supplier's courier (who was actually the undercover officer) on December 4, 2008 to obtain 10 kilograms of cocaine, and that the cash he gave the undercover officer was a partial payment for the drugs. The parties stipulated that Petitioner was the victim of a serious beating in May 2008, which left him hospitalized. Petitioner testified that he placed the gun in the trap compartment of his vehicle after being released from the hospital in order to make himself feel safe. According to Petitioner, he had never removed the gun from the trap after placing it there. On cross-examination, Petitioner admitted that he was a convicted felon and that his Firearm Owners Identification card was revoked in 2007; he claimed not to know, however, that his card had been revoked. Petitioner also admitted that the cocaine he was intending to purchase would be worth hundreds of thousands of dollars and that he had an incentive to protect the cocaine from theft. The Government presented opinion testimony from Special Agent Timothy Oko concerning, among other things, drug traffickers' use of hidden compartments and handguns.

         At the conclusion of trial, the jury was instructed that if it found Petitioner guilty of the attempted possession count, it must also find the type and amount of controlled substance involved in the offense, including either: (a) 5 kilograms or more of mixtures containing cocaine; (b) more than 500 grams but less than 5 kilograms of mixtures containing cocaine; or (c) a measurable amount, but less than 500 grams of mixtures containing cocaine. See [5] at 8 (citing Tr. 396-97). The jury found Petitioner guilty of attempted possession (Count Two) and possession of a firearm in relation to a drug trafficking offense (Count Three). The jury determined by checking off the relevant box on the verdict form that the attempted possession offense involved 5 kilograms or more of mixtures containing cocaine. Id. (citing Tr. 403).

         The Court sentenced Petitioner on July 8, 2011. On the attempted possession charge, the statutory minimum sentence was 120 months and the statutory maximum sentence was life. See 21 U.S.C. § 841(b). On the firearm charge, the statutory minimum sentence was 60 months, which must be served consecutively to the attempted possession charge. See 18 U.S.C. § 924(c)(1)(A). In total, the statutory minimum sentence that Petitioner could receive was 180 months imprisonment. See Case No. 08-cr-1009, Docket Entry [220] at 22. The offense level for the attempted possession charge was 32. Id. at 26. At sentencing, the Court determined based on Petitioner's offense conduct and his post-arrest statement that Petitioner was accountable for a total of approximately 68 kilograms of cocaine. See id. at 30. The Court explained that Petitioner's "own post arrest statements provide[d] more than adequate indicia of reliability to include the relevant conduct in calculating drug quantity." Id. at 25. Taking into account the drug quantity, the Court calculated that Petitioner's applicable offense level under the Guidelines was 36 and that his Criminal History Category was II. This yielded an advisory Guideline range of 210 to 262 months of imprisonment on the attempted possession charge. Id. The Court sentenced Petitioner to a below-Guidelines sentence of 175 months on the attempted possession charge. See id. at 32. On the firearm charge, the Court sentenced Petitioner to the mandatory 60-month minimum term, to be served consecutively with the term for attempted possession, for a total sentence of 235 months. Id.

         The Court took into account Petitioner's cooperation and acceptance of responsibility in applying the Section 3553(a) factors to determine Petitioner's sentence. See 18 U.S.C. § 3553(a). Specifically, the Court "accepted] on [Petitioner's] behalf [that] immediately after the arrest [Petitioner] essentially confessed to all the relevant conduct here, and . . . tried to cooperate with the government." Case No. 08-cr-1009, [220] at 27. The sentence that Petitioner received, 175 months, was within the Guidelines range (151 to 188 months) that would have been applicable if Petitioner had been given a three-level reduction for acceptance of responsibility. See 2008 U.S. Sentencing Commission Guidelines Manual at 16, 138, 141, 365, 396, available at http://www.ussc.gov/sites/default/files/pdf/guidelines-manual/2008/manual/GL2008.pdf Petitioner filed a direct appeal (No. 11-2737) challenging his conviction for the firearm charge only. See United States v. Brown, 724 F.3d 801, 802 (7th Cir. 2013). The Seventh Circuit affirmed Petitioner's conviction. Id. at 805.

         In March 2013, Petitioner and the Government filed a joint statement for a sentence reduction under 18 U.S.C. § 3582(c)(2) and retroactive amendment 782 to the Federal Sentencing Guidelines. See Docket 08-cr-1009-2, [237]. They agreed that Petitioner was eligible for a sentence reduction from 235 to 228 months based on amendment 782, which reduced Petitioner's offense level on the attempted possession charge from a 36 to a 34. This reduced the applicable Guidelines' sentencing range from 210 to 262 months down to 168 to 210 months (or 228 to 270 months total, when the consecutive 60 months for the firearm charge is added). The parties requested that the Court reduce Plaintiffs sentence for attempted possession to the bottom of the new Guidelines range, 168 months, for a total sentence of 228 months imprisonment. On March 23, 2015, this Court accepted the parties' joint statement for sentence reduction. Docket 08-cr-1009-2, [239].

         On June 17, 2014, Petitioner filed the instant habeas petition [1]. Petitioner alleges that his conviction and sentence should be vacated because the drug quantity attributed to him at sentencing was determined by the Court under the "preponderance of the evidence" standard rather than by the jury under the "beyond a reasonable doubt" standard, in violation of Alleyne v. United States, 133 S.Ct. 2151 (2013).

         On August 18, 2014, Petitioner moved for leave to amend his Section 2255 petition to add two issues: (1) "Whether Trial Counsel was ineffective during the Plea and Sentencing Phases of the case in his failure to inform Petitioner that should Petitioner be found guilty at trial of the firearm charge that he would very likely be sentenced significantly greater than the Mandatory Minimum, a 120 month term of imprisonment, on that change"; and (2) "Whether Appellate Counsel was ineffective in his failure to argue that the District Court's Sentencing decision was violative of the United States Supreme Court's holding in Alleyne in that Alleyne was decided during the pendency of Brown's Direct Appeal." [6] at 1. The Court granted Petitioner leave to amend to add these issues to his Section 2255 petition. See [8].

         On March 21, 2016, Petitioner moved for leave to amend his Section 2255 petition again to add one more issue: whether his "presentation of newly discovered evidence" concerning DEA policy regarding the conduct of informants during criminal case proceedings "reasonably establishes that had the Petitioner been aware of the substance of this evidence prior to the entry of his guilty plea, he would have instead opted to proceed to trial." [11] at 2.

         II. ...


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