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Whitt v. United States

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

April 18, 2019

PAMELA WHITT, Petitioner,
v.
UNITED STATES OF AMERICA Respondent.

          MEMORANDUM OF OPINION

          L. Scott Coogler United States District Judge

         I. Introduction

         This is a motion to vacate, set aside, or correct a sentence pursuant to 28 U.S.C. § 2255, filed by Petitioner Pamela Whitt (“Whitt”), through counsel, on December 21, 2018. (Doc. 1.) The Government filed its opposition to the motion (doc. 3), and Whitt replied (doc. 4). For the following reasons, the § 2255 motion is due to be denied without an evidentiary hearing.

         II. Background

         On July 17, 2018, Whitt pled guilty, pursuant to a written plea agreement, to two counts of Subscribing to a False Income Tax Return, in violation of 26 U.S.C. § 7206(1). This Court sentenced Whitt on November 27, 2011, to a term of imprisonment of 24 months as to counts 1 and 2, separately, to be served concurrently with each other, to be followed by a term of supervised release of 12 months. Judgment was entered the same day. Whitt was ordered to surrender to the custody of the U.S. Marshal by 12:00 p.m. on December 28, 2018.

         Whitt did not appeal. Whitt filed this § 2255 motion, through new retained counsel different from her trial defense counsel, on December 21, 2018. On the same day, Whitt also filed a motion for an extension of time to surrender until February 1, 2019. This Court granted in part and denied in part that motion, giving Whitt until 12:00 p.m. on January 21, 2019, to surrender. On January 8, 2019, Whitt filed a second motion for an extension of time to surrender, this time until April 1, 2019. After holding two telephone conferences, this Court, on January 15, 2019, granted in part and denied in part the second motion, giving Whitt until 12:00 p.m. on February 19, 2019, to surrender. This Court warned Whitt that no further extensions would be allowed. Nonetheless, on February 18, 2019, Whitt filed a third motion for an extension of time to surrender until March 15, 2019. This Court denied the motion, ordering Whitt to surrender by 12:00 pm on February 19, 2019, or risk a warrant for her arrest being issued.

         A review of the Bureau of Prisons' Inmate Locator database on this date reveals that Whitt is in custody.

         III. Discussion

         Whitt seeks release to a home program or community confinement rather than a period of incarceration. In support, Whitt argues that due to her medical condition, family situation, and employment, a departure or variance from a U.S. Sentencing Guidelines sentence is warranted. Most of the information that Whitt includes in her motion about her physical condition, personal and family situation, education, and employment was also contained in her Presentence Investigation Report, which this Court considered in determining her sentence. Whitt's motion is due to be denied for several reasons.

         A. Whitt's motion is barred by the appeal waiver in her plea agreement

         Whitt's signed plea agreement contains a waiver of the right to appeal and to file a post-conviction challenge through, among other things, a § 2255 motion, except in certain limited circumstances that are not applicable here. Based on that waiver, Whitt is precluded from seeking a sentence reduction.

         The validity of an appeal waiver is reviewed de novo. United States v. Weaver, 275 F.3d 1320, 1333 n.21 (11th Cir. 2001) (citing United States v. Bushert, 997 F.2d 1343, 1352 (11th Cir. 1993)). Such a waiver “is enforceable if the waiver is made knowingly and voluntarily.” Weaver, 275 F.3d at 1333 (citing Bushert, 997 F.2d at 1350-51). “To establish the waiver's validity, the government must show either that (1) the district court specifically questioned the defendant about the provision during the plea colloquy, or (2) it is manifestly clear from the record that the defendant fully understood the significance of the waiver.” Id.

         Here, during the change of plea hearing, this Court questioned Whitt about the plea agreement, ...


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