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Spencer v. United States

August 16, 2007

DARRELL SPENCER, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: Simandle, District Judge

OPINION

HON. JEROME B. SIMANDLE

Upon his plea of guilty to possession of a firearm by a convicted felon, Petitioner Darrell Spencer ("Petitioner" or "Mr. Spencer") was sentenced by this Court on April 7, 2004 to imprisonment for a term of 92 months followed by a three-year term of supervised release. This matter comes before the Court upon Mr. Spencer's petition to correct his sentence pursuant to 28 U.S.C. § 2255. [Docket Item No. 1.] The Court has considered all submissions. For the reasons set forth below, the petition will be denied.

I. BACKGROUND

On August 1, 2003, in Pleasantville, New Jersey, a police officer stopped an erratically moving vehicle in which Mr. Spencer was a passenger. (Presentence Invstg. Rpt. at 4.) The officer noticed Mr. Spencer attempting to hide an object under the back seat of the car and instructed all occupants to exit the vehicle. (Id. at 5.) Upon searching the vehicle, the officer discovered a handgun ("Weapon") under Petitioner's seat. (Id.)

On September 30, 2003, a federal grand jury returned a one-count indictment charging Petitioner as a previously convicted felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) and (2) ("Section 922(g)"), (Ind'mt. at 1), and a warrant was issued for his arrest, (Presentence Invstg. Rpt. at 6).

Petitioner entered a guilty plea to this charge before the undersigned on January 6, 2004, pursuant to a written plea agreement dated October 10, 2003. (Tr. 01/06/04 at 6.) Petitioner stipulated to possessing a loaded Smith and Wesson firearm on August 1, 2003 and to being previously convicted of at least one violent or drug-related felony. (Presentence Invstg. Rpt. at 3.) During the plea colloquy, the Court verified that Petitioner understood that a guilty plea voided his right to a jury trial, the presumption of innocence, and the right to force the Government to prove every element of his alleged crime beyond a reasonable doubt. (Tr. 01/06/04 at 10.) Satisfied that Mr. Spencer understood the content and procedural ramifications of his intended guilty plea, the Court proceeded to explain to Petitioner that the only promise with regard to his sentence was that it would not exceed Section 922(g)'s ten-year statutory maximum, and that in addition to the sentence, Petitioner might receive up to a three-year period of supervised release and be forced to pay fines up to $250,000. (Id. at 12-13); see 18 U.S.C. § 924(2) ("Whoever knowingly violates subsection . . . (g) of Section 922 shall be . . . imprisoned not more than 10 years."). Petitioner indicated that he understood. (Tr. 01/06/04 at 18.) The Court accepted his guilty plea. (Id. at 24.)

The U.S. Probation Office ("Probation") Prepared

Petitioner's Pre-sentencing Investigation Report on March 9, 2004. (Presentence Invstg. Rpt. at 1.) Probation computed Petitioner's Criminal History Score by considering five previous adult arrests. (Id. at 11-15.) Probation assigned Petitioner three points for a robbery he committed on March 14, 1999 for which Petitioner was arrested on March 26, 1999. (Id. at 11.) Probation assigned Petitioner three points for unlawfully possessing a firearm on May 9, 1999 for which he was arrested the same day. (Id. at 12.) Probation assigned an additional three points for another illegal possession of a firearm conviction that Petitioner committed and for which Petitioner was arrested on July 14, 1999. (Id. at 13.) The Superior Court of New Jersey consolidated these three convictions and sentenced Petitioner to five concurrent years on each count. (Id. at 11, 12, 13.) Probation also assigned Petitioner three points for a September 5, 2000 conviction for aggravated assault and robbery, (id. at 14), and three points for an August 13, 2002 conviction on several drug related counts, (id. at 15). Finally, Probation added two points to Petitioner's Criminal History Score for committing the instant offense within two years of release from state prison, in accordance with U.S.S.G. § 4A1.1(e). (Id. at 15.) As a result, Probation set Petitioner's Criminal History Score at seventeen, placing him in Criminal History Category VI. (Id.)

In addition, in computing the Total Offense Conduct Score, Probation initially assigned Mr. Spencer a Base Offense Level of twenty-four, pursuant to U.S.S.G. § 2K2.1(a)(2), because Petitioner had been convicted twice previously for violent crimes. (Id. at 7.) Probation increased Petitioner's Offense Level by two points because the Weapon was stolen, pursuant to U.S.S.G. § 2K2.1(b)(4). (Id.) Finally, Probation decreased Mr. Spencer's Offense Level by three points for acceptance of responsibility, pursuant to U.S.S.G. § 3E1.1(a) and (b), assigning a Total Offense Level of twenty-three. (Id.)

At Petitioner's sentencing hearing, Petitioner, through counsel, contended that his Criminal History Score was overstated. (Tr. 04/07/04 at 10-11.) Consequently, counsel requested a downward departure, arguing that Petitioner's three prior convictions, sentenced on the same day, were "related" because they were consolidated for trial purposes and were part of a "package deal." (Id. at 11-12.) Unconvinced, the Court determined that a downward departure was unwarranted, emphasizing the seriousness of Petitioner's criminal past and noting that Petitioner's offenses were separate, distinct, and "punctuated by intervening arrests." (Id. at 16.) The undersigned also found, by a preponderance of the evidence, that the Weapon was stolen, and that the two-point increase assigned by Probation was therefore appropriate. (Id. at 9.) Recognizing that the Federal Sentencing Guidelines ("Guidelines") recommended a range of 92-115 months, this Court sentenced Petitioner to ninety-two months in prison followed by a three-year period of supervised release. (Id. at 24.) The Court advised Petitioner of his right to appeal. (Tr. 04/07/04 at 26:16-22.) Petitioner did not appeal.

On March 31, 2005, Petitioner submitted a pro se motion to correct his sentence, pursuant to 28 U.S.C. § 2255 ("Section 2255"), alleging misapplication of the Guidelines, violations of the Fifth and Sixth Amendments, and non-adherence to the Federal Rules of Criminal Procedure. (Pet'r's. Br. at 2.) [Docket Item No. 1]. In making this latter claim, Petitioner mis-cited the rule in question as Federal Rule of Criminal Procedure 11(c). (Pet'r's. Br. at 2.) In response, the United States ("Respondent" or "Government") filed a brief in opposition, addressing in large part Petitioner's claim under the mis-cited subsection. (Gov't's Br. at 6-14) [Docket Item No. 5]. The Court, realizing that the substance of Petitioner's argument indicated that he intended to cite Federal Rule of Criminal Procedure 11(b)(1)(H), ordered the Government to respond to Petitioner's claim under the appropriate subsection. (Ltr. Order, Jan. 22, 2007.) [Docket Item No. 6]. Respondent complied, (Gov't's 2 Br. at 2-3) [Docket Item No. 7], and Petitioner submitted a supplementary brief attempting to "clarify" his previous claims, (Pet'r's. Suplm. Br. at 1-2) [Docket Item No. 8].

II. DISCUSSION

A. Petitioner's Claims

Petitioner asserts five arguments in support of his petition for habeas relief. First, Petitioner claims that the Court violated Federal Rule of Criminal Procedure 11(b)(1)(H) ("Rule 11") by failing to notify him of the maximum possible statutory sentence for the crime to which he pled guilty because he reasonably thought that the maximum term of imprisonment included any term of supervised release. (Pet'r's. Br. at 2.)

Second, Petitioner claims that the Court violated the Fifth and Sixth Amendments by failing to set forth the existence of his prior convictions in the indictment and by using this fact to sentence Petitioner without proving it to a jury beyond a reasonable doubt. (Id. at 5.)

Third, Petitioner claims that the Court violated his Fifth and Sixth Amendment rights, as articulated by the Supreme Court in Blakely v. Washington, 542 U.S. 296 (2004) and United States v. Booker, 543 U.S. 220 (2005), by failing to allege the stolen status of the Weapon in the indictment, by using this fact to sentence him without first proving it to a jury beyond a reasonable doubt, (Pet'r's. Br. at 4), and by inducing him to waive his right to a jury trial by failing to notify him that the Weapon was stolen, (id. at 7).

Fourth, Petitioner claims that the Court misapplied the Guidelines by failing to count three of Petitioner's past convictions as "related" offenses for purposes of sentencing, pursuant to ...


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