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Brown v. United States

United States District Court, D. Maine

May 11, 2017

PRESTON BROWN, SR. Petitioner,
v.
UNITED STATES OF AMERICA, Respondent

          RECOMMENDED DECISION ON 28 U.S.C. § 2255 MOTION

          JOHN C. NIVISON U.S. MAGISTRATE JUDGE.

         In this action, Petitioner Preston Brown, Sr., moves, pursuant to 28 U.S.C. § 2255, to vacate, set aside or correct his sentence. (Motion, ECF No. 31.) Following a guilty plea, Petitioner was convicted of conspiracy to distribute and to possess with intent to distribute controlled and analogue substances, commonly known as bath salts. (Judgment, ECF No. 28 at 1; Government's Version of the Offense, ECF No. 7 at 1.) The Court sentenced Petitioner to a term of 36 months in prison to be followed by 3 years of supervised release. (Judgment at 2-3.)

         Petitioner claims ineffective assistance of counsel at sentencing. He alleges that counsel failed to challenge the statements of a confidential informant that Petitioner received an 800-gram package of bath salts and had a firearm, and that counsel failed to request credit for 140 days of pretrial incarceration, the period of time during which Petitioner was in state custody. (Motion at 4-6.)

         Following a review of Petitioner's motion and the Government's request for summary dismissal, I recommend the Court grant the Government's request, and dismiss Petitioner's motion.

         I. Factual Background and Procedural History

         In September 2015, Petitioner waived indictment, and the Court accepted his guilty plea to a conspiracy that took place from June 2012 to June 2014 and involved the distribution and possession with intent to distribute controlled and analogue substances, 21 U.S.C. §§ 813, 841(a)(1), 841(b)(1)(C), 846. (Minute Entry, ECF No. 12; Information.)

         At Petitioner's sentencing in February 2016, in response to the Court's questions, Petitioner told the Court that he had read the entire revised presentence investigation report, that he had had sufficient time to discuss the report with counsel, and that he knew and understood everything in the report. (Sentencing Tr., ECF No. 40 at 4.)

         The Court made the following sentencing guidelines calculations: the base offense level was 24, pursuant to USSG § 2D1.1, as the offense involved at least 100 kilograms, but less than 400 kilograms, of marijuana equivalent.[1] (Sentencing Tr. at 6, 27.) The Court noted that the drug quantity was 978.625 grams, which converts to 317.877 kilograms of marijuana equivalent under the sentencing guidelines. (Id. at 6, 31.) Counsel agreed the quantity was correct. (Id. at 6-7.) The Court then asked Petitioner: “And with that understanding, Mr. Brown, that the grams of Alpha-PVP and their marijuana equivalent have been changed just as I've indicated, do you have any objections to the contents of the presentence report that we've reviewed thus far?” Petitioner answered: “No.” (Id. at 7.)

         The Court addressed whether Petitioner was to receive credit for 140 days of incarceration in state custody prior to Petitioner's federal sentencing. (Sentencing Tr. at 9-15.) Counsel represented that the time was to be credited to Petitioner's state court sentence on a charge of domestic violence assault and a charge of violation of conditions of release, and, in order to avoid a consecutive sentence, Petitioner did not seek the 140 days of credit toward his sentence on the federal charge.[2] (Id. at 13-15.)

         The Court added two levels to the base offense level, pursuant to USSG § 2D1.1(b)(1), because Petitioner had possessed a dangerous weapon. (Sentencing Tr. at 27.) The Court also asked Petitioner whether the offense conduct set forth in various paragraphs of the revised presentence investigation report was correct. Petitioner responded “Yes, it is.” (Id.at 5.) One of the paragraphs about which the Court inquired was paragraph 7, which read as follows:

CI-3 informed that Brown received 800 grams of bath salts on March 21, 2014, via UPS; that Brown sold bath salts; that Brown kept scales at the house; that Brown had firearms throughout the house, including at least one stolen firearm; and that CI-3 had smoked bath salts at Brown's residence in the past. Further, Brown had surveillance cameras on the outside of his property. (Brown informed that he never received 800 grams of bath salts at his home. He also advised that though he had firearms in his home, none were stolen, none were loaded, none were brandished or used in connection with the criminal conspiracy, and they were in a locked unit except for when he cleaned or sold them. He does not object to the enhancement in paragraph 19.)

(Revised Presentence Investigation Report, ¶ 7 (emphasis omitted).) Paragraph 19 of the report states in relevant part: “The defendant was known to possess dangerous weapons (including firearms). Specifically, CI-6 observed the defendant store a firearm with his bath salts. Therefore, 2 levels are added. USSG §2D1.1(b)(1).” Petitioner thus admitted that he “had firearms throughout the house, ” and Petitioner confirmed that he did not object to the firearms enhancement.

         The Court subtracted three levels, pursuant to USSG § 3E1.1, because Petitioner accepted responsibility for the crime. (Sentencing Tr. at 27.) The total offense level was 23. (Id.) The Court determined Petitioner's criminal history category was level I, which, when combined with a total offense level of 23, yielded a sentencing guidelines range of 46 to 57 months. (Id.)

         The Court next considered the sentencing factors set forth in 18 U.S.C. § 3553(a), and focused on the history and characteristics of Petitioner and the nature and circumstances of the offense. (Id. at 28.) After discussing the relevant factors, the Court sentenced Petitioner to a prison term of 36 months, i.e., below the advisory sentencing guidelines range, followed by a term of three years of supervised release. (Id. at 38.) Petitioner's plea agreement contained an appeal ...


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