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Buck v. United States

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

February 21, 2018

LOUIS DARRELL BUCK, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          REPORT AND RECOMMENDATION

          SONJA F. BIVINS UNITED STATES MAGISTRATE JUDGE.

         Pending before the Court is Petitioner Louis Darrell Buck's Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 (doc. 120), the Government's response in opposition (doc. 126), and Buck's reply (Doc. 130).[1]

         This action was referred to the undersigned Magistrate Judge for report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and Rule 8(b) of the Rules Governing Section 2255 Cases and is now ready for consideration.[2] Having carefully reviewed the record, the undersigned finds that no evidentiary hearing is necessary for the disposition of this matter.[3] Upon consideration, the undersigned hereby recommends that Buck's Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 be DENIED, that this action be DISMISSED, and that judgment be entered in favor of the United States of America, and against Petitioner, Louis Darrell Buck. The undersigned also recommends that should Buck file a certificate of appealability, it should be denied, as he is not entitled to appeal in forma pauperis.

         I. PROCEDURAL BACKGROUND

         Petitioner Louis Darrell Buck was indicted on August 28, 2014, for conspiracy to possess with intent to distribute a Schedule I Controlled Substance, in violation of 21 U.S.C. § 846 (count 1);[4] possession with intent to distribute a Scheduled I Controlled Substance, in violation of 21 U.S.C § 841(a)(1) (count 2); being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(count 3); and using, carrying, or possessing a firearm in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(count 5). (Doc. 1).[5]

         Buck was appointed counsel and was arraigned on March 26, 2016. (Docs. 36, 39) . On June 29, 2016, Buck appeared with counsel before Honorable Judge Steele, and entered a counseled guilty plea to counts 1 and 5 of the indictment. (Docs. 90, 91). During the guilty plea colloquy, Buck testified under oath, as follows:

Court: Have each of you received a copy of the indictment in your case, had a full opportunity to read it and review it with your attorney, and do you fully understand the charge or charges contained in the indictment . . . Mr. Buck?
Defendant: Yes, Your Honor.
Court: Are each of you fully satisfied with the representation that you have received from your attorney in this case and have you fully discussed with your attorney all of the facts surrounding the charge . . . Mr. Buck?
Defendant: Yes, Your Honor . . .
Court: All right. Now, I've been furnished a written plea agreement in each of your cases. This plea agreement appears to have your signature in a couple of places -- at the end of the plea agreement and also at the end of the factual resume. Did you, in fact, sign the document? . . . Mr. Buck?
Defendant: Yes, Your Honor . . .
Court: By signing the document, you are acknowledging that you received a copy of it, that you've had an opportunity to read it and review it with your attorney, that you fully understand the terms and conditions of the plea agreement and the factual resume, and that you agree with it. Is that true? . . Mr. Buck?
Defendant: Yes, Your Honor.
Court: Have there been any promises made to you by anyone or has anyone attempted in any way to force you to plead guilty or to pressure you or threaten you in any way? . . . Mr. Buck?
Defendant: No, Your Honor.
Court: Now, the penalties that could be imposed, if convicted, of the counts to which you are pleading guilty are outlined in the plea agreement . . . Mr. Buck, if convicted of Counts 1 and 5 of the indictment, you could receive a term of imprisonment, as to Count 1, up to 20 years, a fine not to exceed 1 million, supervised release term up to 3 years, mandatory special assessment of $100, and criminal forfeiture of property.
As to Count 5, you could receive a term of imprisonment of no less than 5 years consecutive to the sentence in Count 1 up to life in prison, a fine not to exceed $250, 000, supervised release term up to 5 years, a mandatory special assessment of $100, and criminal forfeiture of firearms. Do you understand that?
Defendant: Yes, Your Honor . . .
Court: The way in which the sentencing guidelines apply to your case might be affected by what you say to the Court and to the probation officer. The Court will not be able to determine an appropriate sentence for your case until after a presentence report has been completed and you and the United States have had an opportunity to challenge the facts reported by the probation officer.
The sentence imposed might be different from any estimate your attorney or anyone else might have given. After it has been determined what guideline applies to a case, the judge has the authority to impose a sentence that is more severe or less severe than the sentence called for in the guidelines. Do you understand that? . . . Mr. Buck?
Defendant: Yes, sir.
The Court: Also, if the sentence is more severe than you expected or if the judge does not accept the sentencing recommendation in your plea agreement, you'll still be bound by your plea. Even if you do not like the sentence imposed by the Court, you will not be able to withdraw your plea. The time to make that decision is now. Do you understand that . . . Mr. Buck?
Defendant: [Nods head.].
Court: Under some circumstances you and the United States each may have the right to appeal any sentence the judge imposes. You also have the right to waive your right to appeal, and I see by your plea agreement that you are waiving your right to appeal any sentence imposed with the following exceptions: And that would be any punishment in excess of the statutory maximum, any punishment constituting an upward departure of the ...

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