United States District Court, N.D. Alabama, Southern Division
MEMORANDUM OF OPINION
Scott Coogler United States District Judge
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.
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,
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.
review of the Bureau of Prisons' Inmate Locator database
on this date reveals that Whitt is in custody.
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.
Whitt's motion is barred by the appeal waiver in her plea
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.
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.”
during the change of plea hearing, this Court questioned
Whitt about the plea agreement, ...