United States District Court, N.D. Florida, Tallahassee Division
REPORT AND RECOMMENDATION
CHARLES A. STAMPELOS UNITED STATES MAGISTRATE JUDGE.
matter is before the court upon Defendant's Motion to
Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C.
§ 2255 and Memorandum of Law in support thereof. (ECF
No. 63, 66). The Government has filed a response (ECF No. 83)
and Defendant filed a reply. (ECF No. 87). The case was
referred to the undersigned for the issuance of all
preliminary orders and any recommendations to the district
court regarding dispositive matters. See N.D. Fla.
Loc. R. 72.2; see also 28 U.S.C. § 636(b) and
Fed.R.Civ.P. 72(b). After a careful review of the record and
the arguments presented, it is the opinion of the undersigned
that Defendant has not raised any issue requiring an
evidentiary hearing and that the § 2255 motion should be
denied. See Rules Governing Section 2255 Cases 8(a) and (b).
Derek Tyrone Jones was charged in a single count indictment
with conspiracy to distribute and possess with intent to
distribute five (5) kilograms or more of a mixture and
substance containing a detectable amount of cocaine. (ECF No.
1). Jones retained R. Timothy Jansen, Esq. to represent him,
and he was ordered detained pending trial. (ECF Nos. 9, 11).
April 18, 2013, the Government filed an information and
notice of prior convictions indicating its intent to seek
enhanced penalties based on multiple prior felony drug
offenses. (ECF No. 17).
case was set for trial, and Jones filed a total of five
motions for continuance before entering a guilty plea on
November 26, 2013. (See ECF Nos. 38, 39, 40, 55).
plea proceeding, the court advised Jones that it was
important that he answer all questions posed to him
truthfully and completely because if he did not, he could be
subject to a separate prosecution for perjury. (ECF No. 55 at
2). Jones, who told the court he had completed his third year
in college, indicated that he understood. (ECF No. 55 at 3).
The court explained the rights Jones would be giving up by
entering a plea of guilty, including any defenses he had, and
Jones again indicated his understanding. (ECF No. 55 at 5-6).
The court asked Jones about the statement of facts he had
signed, and he said that it was all true, specifically
acknowledging that he had obtained more than five kilograms
of cocaine during the conspiracy. (ECF No. 55 at 7; ECF No.
respect to sentencing, the court advised Jones that the only
exception to the imposition of a life sentence would be if he
cooperated with the Government and the Government decided
that the information he provided rose to the level of
substantial assistance in the investigation or prosecution of
others. (ECF No. 55 at 9). In such event, if the Government
filed a substantial assistance motion, the court explained
that it would no longer be required to sentence him to life
in prison, although it could. (Id. at 10). The court
warned Jones that the decision to file such a motion was up
to the Government, and that if the Government did not file a
substantial assistance motion, his sentence would be life in
prison, and he would not be able to take back his guilty
plea. (ECF No. 55 at 10-11). Jones again stated that he
understood. Jones denied that he had been promised either a
substantial assistance motion, or that he would receive a
specific sentence. (ECF No. 55 at 11-12). Jones admitted that
he had had some discussions about sentencing with
representatives of the Government during multiple proffers.
The court adamantly stated that no matter what anyone from
the Government had told Jones, nothing they said was binding
upon the court, and even the court itself could not predict
at that time what his sentence would be if he received a
substantial assistance motion. (ECF No. 55 at 13-14).
court confirmed that Jones had read and understood every line
and word in the plea agreement and supplement. (ECF No. 55 at
12-13). Jones agreed that his plea agreement contained the
entire agreement with the Government, and he denied that
anyone had threatened, pressured or forced him to plead
guilty. (ECF No. 55 at 13, 15).
responded in the affirmative when the court asked whether he
had had as much time as he wanted to talk about his case with
counsel, whether counsel had answered all his questions, and
whether he was satisfied with the way counsel had represented
him and he denied having any complaints at all. (ECF No. 55
for the defense and the Government assured the court that the
plea was freely and voluntarily made and that there were no
agreements or understandings with the Government other than
as set out in the plea agreement and supplement. (ECF No. 55
court accepted Jones' plea, finding that it was entered
knowingly, voluntarily and intelligently. (ECF No. 55 at 16).
It then explained the process of the preparation of the
Presentence Investigation Report and Defendant's
responsibility to review it. (ECF No. 55 at 16-17). The court
specifically advised Jones that he should read the report
very carefully, and if he found that the report was not
correct, or there were any omissions, he should let his
attorney know so counsel could object. (ECF No. 55 at 17).
Presentence Investigation Report (“PSR”) assessed
a base offense level of 32, based on seven kilograms of
cocaine. (ECF No. 43, PSR ¶ 21). After a three-level
adjustment for acceptance of responsibility, Jones' total
offense level was 29. (ECF No. 43, PSR ¶¶ 28-30).
Jones had a single scorable prior conviction for possession
of cocaine with intent to sell or deliver, for which he
served six months in custody. (ECF No. 43, PSR ¶ 46). He
also had prior convictions for possession of cocaine with
intent to sell (PSR ¶ 37), possession of crack cocaine
(PSR ¶ 43), and delivery of cocaine to a minor (PSR
¶ 44) which were not scored because they were over ten
years old. U.S.S.G. § 4A1.2(e)(3). Therefore, his
criminal history category was II. (ECF No. 43, PSR
¶¶ 46, 48). The applicable guidelines range would
have been 97 to 121 months, but for the statutory mandatory
term of life imprisonment. (ECF No. 43, PSR ¶¶ 72,
73). Appended to the PSR were multiple letters from Jones and
family members. (ECF No. 43-2 at 1-12).
sentencing, the court noted that there were no objections to
the PSR's conclusion that the governing statutes directed
a sentence of life in prison. (ECF No. 56 at 2). The court
then advised Jones that if he claimed for any reason that the
prior convictions identified in the PSR were not valid or
should not be considered, it was imperative that he bring the
issue to the court's attention at that time. It warned
him that he could not later assert the invalidity of those
sentences as a basis for challenging his sentence in this
case. The court then specifically asked Jones about the
convictions listed in paragraphs 37 (possession of cocaine
with intent to sell), 43 (possession of cocaine), 44
(delivery of cocaine to a minor) and 46 (possession of
cocaine with intent to sell or deliver) of the PSR, and he
individually affirmed that he had been convicted of these
offenses. (ECF No. 56 at 4-8).
addressed the court and noted that Jones had entered the plea
agreement with the understanding that there would possibly be
a 5K1 motion, which would have allowed the court to sentence
him other than to the mandatory life term. (ECF No. 56 at
8-9). Counsel explained that it seemed that the parties were
“working toward that path” until two weeks before
sentencing, when an individual who was interviewed by the DEA
gave information which materially and significantly
contradicted some of Jones' statements. The Government
had committed to continue to look into the matter to
ascertain whether the new information was truthful, but
absent the 5K1, the defense recognized the court had no
option other than to impose a life sentence. (ECF No. 56 at
9). Jones made a brief statement to the court, following
which the court told Jones that he still had the option to
continue to cooperate and benefit from a substantial
assistance motion once the Government ascertained the truth
of the new information. (ECF No. 56 at 10-12). Defense
counsel stated, without explaining the substance of the new
information, that if the allegations or information obtained
by the Government was accurate, its position with respect to
the substantial assistance motion was well-taken. (ECF No. 56
Government provided the court with a chronology of Jones'
contact with law enforcement leading up to the instant
prosecution. (ECF No. 56 at 12-17). It relayed that after
Jones had assured law enforcement that he had told them
everything about who he dealt with, law enforcement arrested
a man named Dexter Weston, whom Jones had never mentioned
during his debriefings. Nearly 2 kilograms of cocaine and
$125, 000 was discovered in Weston's vehicle. Weston
immediately told law enforcement that money and cocaine
belonged to Jones, and that, before Jones was indicted, Jones
had contacted Weston to ask that he hold Jones' drugs and
money after law enforcement had visited Jones' home. The
two men, according to Weston, had a standing agreement to
hold the other's drugs and money if he was incarcerated.
The Government represented that Weston knew information about
law enforcement's visit to Jones that only could have
come from Jones himself, and it had no reason to disbelieve
Weston's proffer. It further stated that during three
separate debriefings, Jones had never mentioned Weston, even
one time. The Government's concern that Jones had not
been candid was the reason it did not file the 5K1 motion.
The court again noted that if something changed, the
Government could still file a Rule 35.
counsel stated that he had discussed the situation with his
client and asked Jones to provide anything he could to help
to undermine Weston's testimony. (ECF No. 56 at 18).
Counsel offered nothing to the court.
court then sentenced Jones to the statutory mandatory term of
appealed, contending that the district court plainly erred by
failing to inform him that he could challenge the validity of
the prior felony drug convictions. (ECF No. 61). The Eleventh
Circuit found that “the court's fidelity to §
851(b) was . . . above and beyond the call of duty”
because any challenge to the validity of ...