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Faucette v. United States

United States District Court, D. Maine

May 31, 2018

MARKEVIN FAUCETTE, 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 Markevin Faucette moves, pursuant to 28 U.S.C. § 2255, to vacate, set aside or correct his sentence. (Motion, ECF No. 235.) Following a guilty plea, Petitioner was convicted of conspiracy to distribute and possess with the intent to distribute 28 grams or more of cocaine base; the Court sentenced Petitioner to 200 months in prison, to be followed by eight years of supervised release. (Amended Judgment, ECF No. 224 at 1-3.)[1]

         Petitioner alleges counsel at his plea inaccurately informed him that he was subject to a sentencing enhancement, and therefore his plea, which was based on the assumption he was subject to a sentencing enhancement, was not made knowingly and voluntarily. (Motion at 18-20.) Petitioner also maintains that sentencing counsel failed to challenge Petitioner's status as a career offender under USSG § 4B1.1; Petitioner contends that none of the prior offenses on which his career offender status was based qualifies as a controlled substance offense under section 4B1.2(b). (Id. at 18-22.)

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

         I. Factual Background and Procedural History

         Before the plea hearing, the Government filed an information, pursuant to 21 U.S.C. § 851, that alleged a 2008 North Carolina felony drug offense as a predicate for purposes of a statutorily enhanced sentence under 21 U.S.C. § 841(b)(1)(B).[2](Information, ECF No. 94.) At the plea hearing, the Court informed Petitioner, before he pled guilty, of the possibility of a statutorily enhanced sentence of between ten years and life. (Plea Tr., ECF No. 209 at 6-7; Information.)

         At sentencing, the Court found the facts as set forth in the revised presentence investigation report.[3] (Sentencing Tr., ECF No. 208 at 12.) The Court determined the base offense level was 32, pursuant to USSG § 2D1.1(c)(4). (Id.) The Court added two levels, pursuant to USSG § 2D1.1(b)(14)(E), because Petitioner “committed the offense as part of a pattern of criminal livelihood.” (Id.) The Court added two levels, pursuant to USSG § 3B1.1(c), because Petitioner “was the organizer of a criminal enterprise.” (Id. at 13.)

         The Court found Petitioner was a career offender, because he had two or more prior felony convictions, pursuant to USSG § 4B1.1.[4] (Id. at 13.) The three predicate offenses identified in the revised presentence investigation report were: (1) a 1997 Connecticut conviction for the sale of hallucinogens or narcotics, for which Petitioner was sentenced to a term of 4 years of imprisonment (2 years to serve, 2 years of probation) (Report ¶ 41); (2) a 2004 North Carolina conviction for felony possession of cocaine, felony possession with intent to sell cocaine, and felony sale of cocaine, for which Petitioner was sentenced to a prison term of 16 to 20 months (Report ¶ 49); (3) a 2008 North Carolina conviction for trafficking Schedule I and II substances, possession with intent to sell a Schedule II substance, and resisting an officer; Petitioner was sentenced to a prison term of 35 to 42 months (Report ¶ 53).[5] Petitioner's career offender status raised the offense level to 37, pursuant to USSG § 4B1.1(b)(1).[6] (Sentencing Tr. at 13.)

         The Court reduced the offense level to 34 for Petitioner's acceptance of responsibility, pursuant to USSG § 3E1.1. (Id.) The Court found the guidelines range to be 262 to 327 months, based on a total offense level of 34 and a criminal history category of VI.[7] (Id.) Petitioner did not object to the guidelines calculation. (Id.)

         After considering the sentencing factors under 18 U.S.C. § 3553(a), the Court focused particularly on the significant quantity of drugs involved, the pattern of activity, and the need to promote respect for the law and to protect the public. (Id. at 14-15.) The Court determined that the career offender range would result in a prison term that was longer than necessary to achieve the Court's sentencing goals; the Court imposed a below-guidelines sentence of 200 months of imprisonment, to be followed by eight years of supervised release.[8] (Id. at 15-16.)

         Because Petitioner pled guilty to Count I only, but the judgment erroneously included Count II, the First Circuit, on appeal, remanded the case and directed this Court to vacate the sentence on Count II, and dismiss Count II of the indictment. United States v. Faucette, 607 Fed.Appx. 5');">607 Fed.Appx. 5, 6 (1st Cir. 2015) (per curiam). The First Circuit did not vacate the sentence on Count I. Id. Thus, the amended judgment reflected no change to the 200-month term of imprisonment or the eight-year term of supervised release on Count I. (Amended Judgment at 1-3.)

         Petitioner filed a notice of appeal from the amended judgment. (Notice of Appeal, ECF No. 226.) Petitioner did not contest his career offender status on appeal. (United States v. Faucette, No. 14-1495, Brief of Appellant, Doc. No. 00116779800 at 5 (Statement of Issues).) He later voluntarily dismissed the appeal, pursuant to Fed. R. App. P. 42(b). (United States v. Faucette, No. 15-2102 (1st Cir. Apr. 19, 2016).)

         Petitioner asserts that he signed his section 2255 motion on May 25, 2016; the Government does not contest the timeliness of the motion.[9] (Motion at 13; Response at 7.) The Court granted two motions, filed by Petitioner, to supplement his section 2255 motion. (Motions to Supp., ECF Nos. 246, 252; Orders, ECF Nos. 247, 253.)

         II. Discussion

         A. Legal Standards

         A person may move to vacate his or her sentence on one of four different grounds: (1) “that the sentence was imposed in violation of the Constitution or laws of the United States”; (2) “that the court was without jurisdiction” to impose its sentence; (3) “that the sentence was in excess of the maximum authorized by law”; or (4) that the sentence “is otherwise subject to collateral attack.” 28 U.S.C. § 2255(a); see Knight v. United States, 37 F.3d 769, 772 (1st Cir. 1994).

         The burden is on the section 2255 petitioner to establish by a preponderance of the evidence that he or she is entitled to section 2255 relief. David v. United States, 134 F.3d 470, 474 (1st Cir. 1998); United States v. DiCarlo, 575 F.2d 952, 954 (1st Cir. 1978). When “a petition for federal habeas relief is presented to the judge who presided at the petitioner's trial, the judge is at liberty to employ the knowledge gleaned during previous proceedings and ...


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