Opinion
1:22CV459 1:19 CR525-7
07-26-2024
CORRY RONDEL REAMS, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
JOI ELIZABETH PEAKE UNITED STATES MAGISTRATE JUDGE
Petitioner Corry Rondel Reams, a federal prisoner, brings a Corrected Motion [Doc. #371] to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. Petitioner pled guilty to one count of conspiracy to distribute cocaine in violation of 21 U.S.C. §§ 846 and 841(b)(1)(C) and one count of possession of a firearm in furtherance of a drug-trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A)(i). Petitioner later received consecutive sentences of 60 months of imprisonment for each conviction. Following an unsuccessful direct appeal, he filed a Motion [Doc. #360] under § 2255 which the Court struck as deficient before allowing Petitioner to file his Corrected Motion. Respondent filed a Motion to Dismiss [Doc. #387] the Corrected Motion. Petitioner did not file a Response to the Motion to Dismiss despite being advised of his right to do so and despite being cautioned that a failure to file a Response would likely result in the dismissal of his Corrected Motion. The Parties' Motions are now before the Court for rulings.
Petitioner later filed a Motion [Doc. #403] requesting retroactive application of a Guideline Amendment, and that request is proceeding separately.
Petitioner's Claim
Petitioner sets out only a single claim for relief in which he argues that his conviction under § 924(c) is invalid because he did not actively employ a firearm by brandishing, displaying, bartering, striking with, firing, carrying, or threatening to fire a gun in furtherance of a drug trafficking crime.
Discussion
Respondent's initial argument is that Petitioner's claim should be dismissed based on a waiver contained in Petitioner's Plea Agreement [Doc. #153]. That waiver reads:
It is further agreed by and between the United States and the defendant, CORRY RONDEL REAMS, that in exchange for the government's agreement to allow the defendant to plead to the lesser included offense of object two of Count One of the Superseding Indictment herein, the defendant expressly waives the right to appeal the conviction and whatever sentence is imposed on any ground, including any appeal right conferred by Title 18, United States Code, Section 3742(a), and further to waive any right to contest the conviction or the sentence in any post-conviction proceeding, including any proceeding under Title 28, United States Code Section 2255, excepting the defendant's right to appeal or collaterally attack based upon grounds of (1) ineffective assistance of counsel, (2) prosecutorial misconduct not known to the defendant at the time of the defendant's guilty plea, (3) a sentence in excess of the statutory maximum, and (4) a sentence based on an unconstitutional factor, such as race, religion, national origin or gender.
(Plea Agreement ¶ 5(d).) The Court will enforce such a waiver “if it is valid and the issue appealed [or raised in a collateral proceeding] is within the scope of the waiver. A waiver must be knowing and voluntary. In the absence of extraordinary circumstances, a properly conducted Rule 11 colloquy establishes the validity of the waiver.” United States v. Adams, 814 F.3d 178, 182 (4th Cir. 2016) (internal citations omitted).
Here, the presiding judge conducted a change of plea colloquy under Rule 11 of the Federal Rules of Criminal Procedure. Petitioner stated under oath that he was forty-seven years old, that he had a GED, that he was not under the influence of narcotic drugs, that he had reviewed the Indictment and Plea Agreement with his attorney, and that he understood them. (Plea Tr. [Doc. #298] at 3-5.) The presiding judge thereafter described the Plea Agreement, including the waiver of appeal and collateral review rights, and Petitioner confirmed that he agreed with the summary of the Plea Agreement, understood it, and had reviewed it with counsel. (Id. at 6-9.) The judge also reviewed the elements of the charged crimes, the penalties, and the rights Petitioner would waive by pleading guilty. (Id. at 10-12, 14-17.) Petitioner then pled guilty and the presiding judge accepted the guilty plea. (Id. at 1718.)
A review of the plea colloquy reveals that Petitioner knowingly and voluntarily pled guilty while fully understanding the charges and his Plea Agreement, including the waiver of his appellate and post-conviction rights. Petitioner points to nothing to counter his statements made under oath during the plea colloquy and does not show the “extraordinary circumstances” necessary to invalidate the waiver. Therefore, the waiver contained in the Plea Agreement is valid and should be enforced against Petitioner. The Government's Motion to Dismiss should be granted for that reason alone.
The Government also correctly argues that Petitioner's claim for relief fails even if considered on its merits. Petitioner contends that his conviction for possessing a firearm in furtherance of a drug-trafficking crime is invalid because he did not actively employ the firearm. However, as the Government points out, the crime with which he was charged and to which he pled guilty required only possession of the firearm in furtherance of the drugtrafficking crime, not any form of active employment. Petitioner makes no claim that he did not possess the firearm and, in fact, the Factual Basis [Doc. #152] supporting his guilty plea reveals that he did possess a firearm at his home along with drugs and drug paraphernalia, including a vacuum sealer, digital scales, and $4,727 in cash. (Factual Basis at 19-20.) His conviction is valid on that basis and his Corrected Motion fails for that additional reason.
In his original filing [Doc. #360], Petitioner cited to the decision of the Supreme Court in Bailey v. United States, 516 U.S. 137 (1995). However, the decision in Bailey addressed the prior version of 18 U.SC. § 924(c) when it was limited to only “carry and use” of a firearm during and in relation to a drug-trafficking crime. The statute was subsequently amended to add a new provision covering “possession” of a firearm in furtherance of a drug-trafficking crime, and this is the provision that applied in Petitioner's case. See United States v. Lomax, 293 F.3d 701 (4th Cir. 2002) (explaining the history and discussing the many ways that possession could be in furtherance of drug-trafficking crimes). Petitioner's original filing also cited to United States v. Davis, 588 U.S. 445 (2019), but that case involved the definition of a crime of violence, and would not affect Petitioner's case.
IT IS THEREFORE RECOMMENDED that the Government's Motion to Dismiss [Doc. #387] be granted, that Petitioner's Corrected Motion [Doc. #371] to vacate, set aside or correct sentence be dismissed, and that, there being no substantial issue for appeal concerning the denial of a constitutional right affecting the conviction nor a debatable procedural ruling, a certificate of appealability not issue.