Opinion
Criminal Action No. 00-125, Section "C" (1)
August 28, 2001
ORDER REASONS
Before the Court is Defendant's Petition filed pursuant to 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence ("Petition"). After considering the arguments of the parties, the record and the applicable law, IT IS ORDERED that Defendant's Motion is hereby DENIED.
Procedural Background
On May 4, 2000, the Grand Jury for the Eastern District of Louisiana returned a one-count indictment charging Royal Gaines ("Defendant") with a violation of the Federal Controlled Substances Act, 21 U.S.C. § 841 (a)(1). Specifically, Defendant was charged with knowingly and intentionally possessing with the intent to distribute more than 50 grams of cocaine base ("crack"). (See Rec. Doc. 1). On June 14, 2000, Defendant entered a plea of guilty to the one-count indictment. Defendant's guideline range was 87 to 108 months, based on a total offense level of 29 and a criminal history category of I. The Court determined that the applicable guideline ranges were 87 to 108 months imprisonment, 3 years supervised release and a mandatory special assessment of $100, along with other costs. On August 30, 2000, this Court sentenced Defendant to 87 months imprisonment.
On May 25, 2001, Defendant filed the instant motion, raising for the first time the following claims: 1) that he was denied the effective assistance of counsel, 2) that the indictment pursuant to which he was prosecuted was defective because it did not properly identify the substance involved in the offense, and 3) that his sentence is constitutionally unsound because he was sentenced under the guidelines for cocaine base, when he should have been sentenced under the guidelines for cocaine hydrochloride. The Court shall consider each of these contentions in turn.
In asserting his claim of defective indictment, Defendant charges the Government with "prosecution misconduct at the grand jury hearing."See Petition at 5.
Ineffective Assistance of Counsel
Defendant's allegation that he received ineffective assistance of counsel is procedurally allowed on collateral review. "Ineffective assistance of counsel claims ordinarily are brought for the first time on collateral review because of the difficulty of compiling an adequate record by the time of the direct appeal." United States v. Gaudet, 81 F.3d 585, 589 (5th Cir. 1996) (citing United States v. Pierce, 959 F.2d 1297, 1301 (5th Cir. 1992)). This claim must be examined on its merits.
Under the test proposed by the United States Supreme Court inStrickland v. Washington, 466 U.S. 668, 687 (1984), in order for a defendant to prevail on an ineffective assistance claim, he must prove that (1) his counsel's representation was deficient and that it fell below an objective standard of reasonableness and (2) that the deficiency actually prejudiced the defendant. More specifically, petitioner must show that "counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment" and that "counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id.
Defendant maintains that his counsel's performance was constitutionally defective because he did not object to the factual basis, which identified the controlled substance as crack cocaine, at the time of Defendant's sentencing, even though the laboratory reports stated that the seized substance tested "positive for cocaine" rather than cocaine base. Defendant also claims that counsel "advis[ed] the defendant to take a plea on erroneous information." See Petition at 5.
Defendant plead guilty to knowingly and intentionally possessing with the intent to distribute more than 50 grams of cocaine base ("crack"), a Schedule II narcotic drug controlled substance, in violation of 21 U.S.C. § 841 (a)(1). According to the factual basis, the New Orleans Police Officers seized "several pieces of a hard, rock-like substance they believed to be crack cocaine." See Factual Basis (Rec. Doc. 8). "Defendant then told officer Gex that the crack was his (Gaines)." Id. During the rearraignment, the Court asked Defendant whether the statements contained in the factual basis were correct, and he answered in the affirmative. The Court also asked the Defendant whether he had had enough time to consult with his attorney, and whether he was satisfied with his attorney's services. Defendant responded affirmatively to these inquiries as well.
This particular issue has arisen because the laboratory report did not specifically identify the substance as cocaine base, A review of recent cases suggests that the government's laboratories do not always identify the substance involved with the preferred level of specificity, leading to confusion as to whether substance identified by the lab as "cocaine" actually qualifies as "cocaine base" for the purpose of imposing a more severe sentence. See, e.g., United States v. Stafford, 2001 WL 818245 (6th Cir. 2001); United States v. Parker, 245 F.3d 974, 976 (7th Cir. 2001); United States v. Roberts, 201 F.3d 433 (2d Cir. 1999); Williams v. United States, 1999 WL 395375 (N.D.N Y 1999) at *1.
Examining this question first for purposes of determining whether Defendant's Strickland claim is viable, the Court notes that Defendant never disputed that the substance involved was, in fact, cocaine base, and therefore counsel was not ineffective for failing to preserve this issue for appeal. See United States v. Hunter, 2001 WL 530838 at *3 (E.D. La. 2001) (Fallon, J.) ("Not objecting to a fact that has been stipulated to in a plea agreement is not an ineffective assistance of counsel."). Defendant admitted to the police officer that the crack cocaine was his, and agreed that the statements contained in the factual basis were true. Additionally, Defendant has not alleged that he would have pleaded not guilty and gone to trial but for his attorney's actions. Therefore, the Court finds that Defendant's claim of ineffective assistance of counsel is without merit. Because of the frequency with which this issue appears to be recurring in the federal system, however, the Court will also examine Defendant's arguments regarding the sufficiency of his indictment and the application of the Sentencing Guidelines to his case.
Defective Indictment and Sentencing Guidelines
Because the analysis for these two claims are substantially related, the Court shall review these two grounds together.
Defendant argues that the indictment in this case is defective due to the fact that it failed to identify the correct substance that he was responsible for, which he claims is cocaine hydrochloride and not cocaine base ("crack"). Four bags were tested by the laboratory, but only one of the bags, containing 187.8 grams of "chunky off-white material" that tested "positive for cocaine," was ultimately attributed to the Defendant for purposes of sentencing. The presentence investigation report also reveals that Defendant acknowledged that he had gotten involved in the distribution of crack cocaine in order to financially support his family. See Defendant's Presentence Investigation Report at ¶ 13. As noted previously, Defendant also admitted to this Court, by confirming that the statements in the factual basis were true, that he was guilty of a violation involving crack cocaine.
The Court may not accept a plea of guilty unless there is a factual basis for the plea. See Fed.R.Crim.P. 11. In determining whether a factual basis exists, "a district court may accept a defendant's plea colloquy statements as true." Parker, 245 F.3d at 975. In addition to Defendant's own statements, the Court notes that other evidence supports the allegation in the indictment that the criminal activity involved crack cocaine — namely, Defendant's statements to the police, and the laboratory description of the substance as "chunky off-white material." See id. (lab report described substance as "chunky");Williams, 1999 WL 398375 at *2 (material described as "chunky"). The Government has the burden of proving that the substance involved is, in fact, cocaine base in order for the "crack enhancements" to apply. The Court agrees with the Third Circuit Court of Appeals in United States v. Roman, 121 F.3d 136 (3d Cir. 1997), when it stated that "we would hope that the government would take steps to provide a quality of proof that is consistent with the seriousness of the consequences of that distinction [between cocaine and crack]." Id. at n. 4. After reviewing the totality of facts in this case, however, the Court finds that the Government has met its burden. Compare United States v. James, 78 F.3d 851, 856 (3d Cir.), cert. denied, 519 U.S. 844 (1996) ("We do not believe that, without more, the casual reference to crack by the Government in the colloquy with the court over the relevant quantity of cocaine base in determining the defendant's offense level unmistakably amounted to a knowing and voluntary admission that the cocaine base constituted crack."). Consequently, the Court finds that the indictment was sufficient, and that the guidelines for cocaine base ("crack") rather than powder cocaine were appropriately applied.
Conclusion
Therefore, IT IS ORDERED that Defendant's Motion for Vacate, Set Aside or Correct Sentence is hereby DENIED.