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United States v. Jones

United States District Court, N.D. Florida, Tallahassee Division

May 23, 2018

UNITED STATES OF AMERICA,
v.
DEREK TYRONE JONES, Defendant.

          REPORT AND RECOMMENDATION

          CHARLES A. STAMPELOS UNITED STATES MAGISTRATE JUDGE.

         This 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).

         BACKGROUND

         Defendant 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).

         On 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).

         The case was set for trial, and Jones filed a total of five motions for continuance[1] before entering a guilty plea on November 26, 2013. (See ECF Nos. 38, 39, 40, 55).

         At the 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. 38).

         With 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).

         The 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).

         Jones 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 at 15).

         Counsel 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 at 15-16).

         The 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).

         The 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).

         At 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).

         Counsel 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 at 12).

         The 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.

         Defense 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.

         The court then sentenced Jones to the statutory mandatory term of life imprisonment.

         Jones 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 ...


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