United States District Court, S.D. Alabama, Southern Division
CHARLES R. BUTLER, Senior District Judge.
This matter is before the Court on a motion to vacate, set aside, or correct sentence filed by petitioner Kathea Geneva Adams, a person in federal custody. (Doc. 40.) The government has filed a response in opposition to the motion (Doc.43), and Petitioner has filed a reply brief (Doc. 48). For the reasons set forth below, the Court finds that the motion is due to be denied without an evidentiary hearing.
Petitioner Kathea Geneva Adams was charged in a single-count indictment with possessing a firearm after having been previously convicted of a crime punishable by more than one year ("felon-in-possession") in violation of 18 U.S.C. § 922(g). At arraignment, CJA Panel Attorney Larry Moorer was appointed to represent Adams. Moorer attempted to negotiate a plea agreement with the government, but the parties were unable to come to terms because Adams did not want to waive her right to appeal. Therefore, Adams submitted a factual resume and entered a "blind plea."
During the plea colloquy, Moorer explained that the parties could not reach an agreement due to "an unusual set of facts." (Guilty Plea Tr. 9, Gov.'s Ex. 1, Doc. 43-1.) Under the United States Sentencing Guidelines, the base offense level applicable to the felon-in-possession charge was 14. However, the government's position was that the underlying offense-attempted murder-should be the starting point for the base offense level, which result in a much higher offense level. Because she intended to dispute the government's evidence of attempted murder at sentencing, Adams declined to enter a plea agreement that would have required her to waive her right to appeal. Thus, the Court explained to Adams that by entering a "blind plea" she was admitting guilt without any sentencing recommendation from the government. ( Id. 8.)
When Adams told the Court she did not understand the plea agreement discussion, the Court explained the parties' differing positions on the facts underlying the offense and how those facts could affect her sentencing guideline range. ( Id. 9-12.) Adams indicated that she understood but qualified that by saying "a little bit." ( Id. 12..) This exchange followed immediately thereafter:
The Court: Okay. Well, now, look. If at any time during this whole proceeding this morning you decide it's just too much confusion and you don't want to go on, you don't have to plead guilty. Do you understand that? That's your decision. I'm not forcing you to plead guilty just because you're here today. Are you clear about that?
Defendant Adams: Yes, sir.
The Court: Okay. So you decide later, at the end of this proceeding. I'm going to give you a chance to say: "Wait a minute, Judge. I don't want to plead guilty." I'm going to give you that chance.
Defendant Adams: Yes, sir.
( Id. ) Adams acknowledged during the plea colloquy that she had not been threatened or coerced, nor had she been promised anything in exchange for her guilty plea. ( Id. 13.) The Court informed Adams that she faced a maximum sentence of 10 years in custody, a $250, 000 fine, a 3-years supervised release term, and a $100 special assessment. ( Id. 14-15.) Adams indicated that she understood. ( Id. ) The Court further informed Adams of the rights she would be waiving if she pled guilty-e.g., the right to a jury trial at which the government would bear the burden of proof, the right to call witnesses and present evidence, the right to testify. ( Id. 21-24.) Adams indicated that she understood both the rights she would be waiving and the consequences of pleading guilty. ( Id. 24.) Adams admitted that the factual resume she signed was true and correct, the Court found it to be sufficient basis for a guilty plea, and Adams entered a plea of guilty. ( Id. 25.)
In the factual resume, signed under oath, Adams admitted the following conduct giving rise to the offense:
Kathea Geneva Adams was previously convicted of Kidnaping, Second Degree, on November 30, 2009, in the Circuit Court of Mobile County, Alabama, Case No. CC09-3242.
On October 3, 2011, Clarke County Sheriff's Criminal Investigation Unit was called to the intersection of Sand Flat Road and highway 43 and began investigation of Adams' possession and discharge of a firearm in the vicinity of Rachel Lents. Lents, and another female were passengers of Adams during a drive the same day, from Mobile to Clarke County. Lents was familiar with Adams and the other female, in that they all lived in or frequented the Crest Motel on Government Blvd. In Mobile.
Based upon the information Lents provided members of the Clarke County Sheriff's Department following the incident, the Mobile Police Department was contacted and a BOLO was put out for the vehicle was towed to Grove Hill. Adams identified herself has Shay Henderson during booking.
The following day a search warrant of the vehicle was executed at the wrecker yard. The cup holder in the center console pulled out and [a Charter Arms, Model Undercover, 5-shot revolver] was recovered from the area under the cup holder.... Later Adams was read her Miranda rights, and after waiving them she initially stated that she told Lents they were going to party with some guys who had a lot of money, but when the drove to Clarke County, they just put Lents out and told her not to come back to Mobile. When asked if she shot at Lents, Adams said she did not, and she did not have a gun. An Investigator showed Adams what he found inside her vehicle and she said she did have the firearm and that she bought it off the street. Adams said she did not shoot at Lents, and then later said that she shot a few rounds in the air to scare Lents. Adams said she was mad at Lents because she had sex with her husband.
In summary, on or about October 3, 2011, Adams, who had previously [been] convicted of the aforementioned felony offense was in knowing possession of the above-described firearm which was manufactured outside the State of Alabama and therefore affected interstate commerce by its presence in the state.
(Factual Resume 2-3, Doc. 16).
The Presentence Investigation Report (PSR) prepared by the United States Probation Office recommended a base offense level of 33 "because the defendant used the firearm in connection with the commission or attempted commission of another offense (attempted murder)." (PSR ¶ 19, Doc. 19.) After applying a total three-level reduction for timely acceptance of responsibility, the PSR calculated a total offense level of 30. The guideline range for level 30 with Adams' criminal history category (III) was 121 to 151 months imprisonment. However, because the statutory maximum was 120 months, the guideline was 120 months. Adams' counsel filed an objection to the PSR, stating: "Defendant asserts that the firearm was not used in connection with the commission or attempted commission of another offense. Pursuant to U.S.S.G. § 2K2.1(a)(6), the offense level is 14." (Deft.'s Rsp. ¶ 1, Doc. 22.)
The sentencing hearing took place on April 23, 2012. To support its position that the firearm was used during an attempted murder, the government relied on the testimony from Chief Investigator Ron Baggett of the Clarke County Sheriff's Department along with a video of Baggett's interview with the victim, Rachel Lents. Investigator Baggett testified that me responded to a call to a home in rural Clarke County where he found Ms. Lents "[who] appeared to have injuries, physical injuries... [and] was very emotionally upset." (Sent. Tr. 6, Doc. 32.) Baggett took a statement from Lents "within 30 minutes or so" of after the incident. Over defense counsel's hearsay objection, the Court allowed Baggett to testify as to Lents' out-of-court statement. In summary, Lents' told Baggett that she had left Mobile with Adams and another woman, Kimberly Pickron, who told Lents that "they were going to meet some guys and party and make some money." ( Id. 8.) They stopped at the intersection of Highway 43 and Sand Flat Road in Clarke County, and Adams told Lents "that she really brought her up there to put a bullet in her head. And she pulled out a small black revolver." ( Id. 8-9.) Lents got out of the car and ran. As she did, Adams fired four shots at her. Baggett questioned Lents as to whether Adams fired at her or in the air. Lents said "when she fell down she... heard the bullets hitting the ground next to her." ( Id. 17.)
During Baggett's testimony, the government also played a video recording of Lents' statement. ( Id. 9.) Because the video itself was an exhibit, its contents were not transcribed as part of the record. Instead, the transcript contains statement from the prosecutor that "at this point we would like to play a portion of [Lents' videotaped statement" followed by ...