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Jackson v. United States

United States District Court, N.D. Alabama, Southern Division

July 14, 2017

CARLOS LAMAR JACKSON, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION

          R. DAVID PROCTOR UNITED STATES DISTRICT JUDGE.

         This matter is before the court on Petitioner's Motion to Vacate, Set Aside, or Correct Sentence filed pursuant to 28 U.S.C. § 2255. (Doc. # 1). Petitioner, acting pro se, moves to vacate, set aside, or correct the sentence he received in case 2:15-cr-84-RDP-HGD. After careful review, the court concludes Petitioner's claims are due to be denied and that the action be dismissed with prejudice.

         I. Background

         Petitioner was indicted on August 27, 2014 in an indictment charging him with illegal possession of two firearms. See 7:14-cr-276-RDP-HGD (the “gun case”). While the gun case was pending, Petitioner cooperated with the Government and provided information regarding a bank fraud scheme in which he participated and for which he was charged. See 2:15-cr-84-RDP-HGD (the “bank fraud case”). The Government reached a plea agreement with Petitioner in the bank fraud case. Pursuant to that agreement, Petitioner agreed to enter a guilty plea to one count of conspiracy to commit bank fraud and one count of aggravated identity theft in the bank fraud case. (Doc. # 6-1 at p. 2).

         The Government also agreed to proceed with the gun case and the bank fraud case sentencing on the same date, and Petitioner was sentenced in both cases on September 28, 2015. (Gun Case, Minute Entry on 9/28/2015; Bank Fraud Case, Minute Entry on 9/28/2015). The Government moved for a downward departure in the gun case pursuant to 5K1.1 based on Petitioner's cooperation providing information regarding the bank fraud case. (Doc. # 6-1 at pp. 6-8). On September 28, 2015, the court granted the Government's motion for downward departure in the gun case, and sentenced Petitioner to a custodial sentence of 34 months as to Count 1 and 36 months as to Count 2 to be served concurrent with any sentence imposed in the bank fraud case. (Gun Case, Minute Entry on 9/28/2015). In the bank fraud case, the court imposed a custodial sentence of 34 months as to Count 1 to be served concurrent with any sentence imposed in the gun case and 24 months as to Count 2 to be served consecutive. (Bank Fraud Case, Minute Entry on 9/28/2015). Accordingly, the total sentence imposed was 58 months for both cases.

         II. Discussion

         In his Motion, Petitioner contends that he is entitled to relief because the Government did not move for a sentence reduction, in spite of Petitioner's cooperation. (Doc. # 1 at p. 4). However, in his brief in support of his Motion, and in his reply brief, Petitioner argues that the Government filed a motion for a downward departure based on his assistance, but did not inform the court of the full extent of his cooperation. (Doc. # 2 at p. 4; Doc. # 11 at pp. 1-2). Petitioner is not entitled to relief under either theory.

         Analysis of Petitioner's claim is muddied by the fact that Petitioner was sentenced in two separate cases on the same day, and his cooperation in the gun case included a discussion of his involvement in the bank fraud case. To be clear, in his motion, Petitioner identifies case number 2:15-cr-84-RDP-HGD-1 (the bank fraud case) as the case (and sentence) from which he seeks relief in his Petition. (See Doc. # 1 at p. 1). However, because Petitioner does not clearly delineate between the plea agreements entered in the separate cases and the different sentences that he received, the court will give him the benefit of any doubt and address each of his arguments, in turn.

         A. Petitioner is Not Entitled to Relief Because of Any Failure to File a Departure Motion in the Bank Fraud Case

         While Petitioner and the Government entered a plea deal in the bank fraud case, that agreement did not include a cooperation agreement or any other terms under which the Government was obligated to file a motion for downward departure in that case. (See Doc. # 6-3). Accordingly, to the extent that Petitioner contends that the Government breached the plea agreement by failing to file a motion for downward departure in the bank fraud case, he raises no right to relief.

         But even if Petitioner's § 2255 motion could also be construed to seek relief based on the Government's failure to move for a sentence reduction in the bank fraud case, there is no basis for awarding it.[1] The Government has the discretion to move for a departure from the Guidelines if a defendant “provided substantial assistance in the investigation or prosecution of another person who has committed an offense. U.S.S.G. § 5K1.1; Wade v. United States, 504 U.S. 181, 185 (1992) (under § 5K1.1, the Government has a “power, not a duty, to file a motion when a defendant has substantially assisted). Indeed, review of the Government's decision not to file a substantial assistance motion is limited to those cases which allege an unconstitutional motive. Wade, 504 U.S. at 185-86 (reasoning that a prosecutor's refusal to file a substantial assistance motion because of the defendant's race or religion could form the basis of an unconstitutional motive); United States v. Nealy, 232 F.3d 825, 831 (11th Cir. 2000) (noting that Wade limited the free exercise of the government's discretion under § 5K1.1 only to the extent that the government cannot exercise that discretion for an unconstitutional motive).

         Here, Petitioner has not alleged that the Government had some unconstitutional motive behind a decision not to file a substantial assistance motion in the bank fraud case. In fact, Petitioner does not ascribe any motive to the Government at all. Instead, at best, his Petition can be construed only to allege that he provided substantial assistance in the bank fraud case, but the Government did not file a motion for downward departure in that case. This allegation does not provide any basis for habeas relief for at least three reasons.

         First, the plea agreement in the bank fraud case did not provide for a 5K1.1 motion to be filed in that case. Thus, the Government was not contractually obligated to file such a motion. Second, the agreement did not provide for filing of a motion under 18 U.S.C. § 3553(e) related to the mandatory minimum sentence Petitioner faced with respect to Count 2 in the bank fraud case. Absent such a motion, and even if a 5K1.1 motion had been filed, the court would not have had the authority to depart below the 24 month mandatory minimum. United States v. Melton, No. 15-15738, 2017 WL 2926589, at *6 (11th Cir. July 10, 2017). Finally, even if a departure motion had been filed in the bank fraud case and the court had departed under § 5K1.1, any reduction in Petitioner's sentence related to Count 1 in that case would not have reduced his sentence (which was to be concurrently served) related to Count 1 in the gun case. In other words, a § 5K1.1 departure in the bank fraud case would not have reduced the total time Petitioner served in the bank fraud case and the gun case.

         B. Petitioner is Not Entitled to Relief Because of Any Failure of the Governmentto Properly Present ...


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