United States District Court, E.D. Texas, Sherman Division
ORDER OF DISMISSAL
RICHARD A. SCHELL UNITED STATES DISTRICT JUDGE
above-entitled and numbered civil action was referred to
United States Magistrate Judge Kimberly Priest Johnson. The
Report and Recommendation of the Magistrate Judge (the
"Report") (Civ. Dkt. 7),  which contains proposed
findings of fact and recommendations for the disposition of
such action, has been presented for consideration. The Report
recommends that the court deny Boutte's Motion to Vacate,
Set Aside, or Correct Sentence pursuant to 28 U.S.C. §
2255 (Dkt. 1), dismiss the case with prejudice, and deny a
certificate of appealability. Boutte has filed written
Objections (Civ. Dkt. 8). Having made a de novo
review of the Objections, the court concludes that the
findings and conclusions of the Magistrate Judge are correct
and adopts the same as the findings and conclusions of the
October 12, 2012, the Drug Enforcement Agency
("DEA") was investigating a suspected drug
conspiracy involving Boutte and a cooperating defendant
("CD"). See Crim. Dkt. 33 at 4. Working
with DEA agents, the CD had arranged to meet Boutte at a
restaurant in Piano, Texas, where Boutte and the CD would
complete a transaction involving five (5) kilograms of
cocaine. See Id. At the restaurant, Boutte placed a
bag containing $147, 520.00 into the CD's vehicle.
See Id. After receiving the bag of money from
Boutte, the CD told Boutte he would deliver the cocaine to
Boutte's residence at a later time. See Id.
Shortly thereafter, the CD received a telephone call from
Boutte asking about the status of the cocaine delivery.
See Id. Following this incident, DEA agents went to
Boutte's residence and placed him under arrest. See
Id. DEA agents also executed a search warrant on the
residence; agents seized $30, 628.00 in cash, multiple
firearms, and approximately 3.4 grams of cocaine from the
home. See id.
November 7, 2012, Boutte was charged by indictment with two
counts. See Crim. Dkt. 15. Count One charged Boutte
with participating in a conspiracy to possess with the intent
to distribute five (5) kilograms or more of cocaine in
violation of 21 U.S.C. §§ 841(a)(1) and 846.
See Id. at 1. The conspiracy was allegedly active
for over six years, between January of 2006 and November of
2012. See Id. Count Two charged Boutte with
possession of firearms on or about October 11, 2012, in
furtherance of the drug conspiracy described in Count One, in
violation of 18 U.S.C. § 924(c). See Id. at 2.
January 24, 2013, Boutte entered guilty pleas as to both
counts without a written plea agreement. See Crim.
Dkt. 24. At the change of plea hearing, the Government
informed Boutte of the charges against him, the elements of
the charges, and the Government's burden to prove the
elements beyond a reasonable doubt should he proceed to
trial. See Crim. Dkt. 36 at 6-7. The court advised
Boutte that the conspiracy charge carried a statutory penalty
of not less than ten (10) years' and not more than life
imprisonment and the firearm charge carried a statutory
penalty of not less than five (5) years' and not more
than life imprisonment. See Id. at 7-8. The court
further advised Boutte that any sentence imposed on the
firearm charge would run consecutive to a sentence on the
drug trafficking charge. See Civ. Dkt. 1-3 at 4;
Crim. Dkt. 36 at 7-8. The court engaged in a colloquy with
Boutte to ensure he understood the meaning of
"consecutive" in the context of his sentence:
THE COURT: Now, do you understand that that particular count,
I believe, is served consecutively? That means you'll be
sentenced first on count one and then whatever sentence you
receive on count one, you'll get a sentence on count two,
and you'll have to serve count two after you serve count
DEFENDANT BOUTTE: Yes, Sir.
THE COURT: Okay. Very well. That's what consecutive
means. All right.
See Crim. Dkt. 36 at 8. Boutte verbally acknowledged
that he understood the elements of the charges and the
applicable penalties. See Id. at 8. He further
represented to the court that he had thought about entering a
guilty plea and decided of his own free will to enter a
guilty plea, without regard to force, threats, or promises
from anyone else. See Id. at 9.
his attestations at the change of plea hearing, on April 4,
2013, Boutte filed a Motion to Withdraw Guilty Plea as to the
firearm charge on the grounds that the plea was unknowing and
involuntary. See Crim. Dkt 32. At the hearing on the
motion, Boutte asserted that, after reading the Presentence
Investigation Report ("PSR"), he had come to
believe the Government lacked a factual basis to prove the
weapons recovered from his home had been used "in
furtherance of the drug trafficking crime, as required for
conviction under 18 U.S.C. § 924(c). See Crim.
Dkt. at 23-29. Boutte also stated he plead guilty on the
firearm charge because he thought he "couldn't plead
guilty just to one count, but. . . had to plead guilty to
both of the counts." See Id. 50 at 23. Boutte
stated he came to this conclusion based on the advice of
counsel. See Id. However, Boutte's defense
counsel testified that he never gave Boutte any such advice.
See Id. at 32-33. Ultimately, the court denied
Boutte's Motion to Withdraw Guilty Plea. See Id.
the court sentenced Boutte to the mandatory minimum sentence
on both counts, to be served consecutively. See
Crim. Dkt. 47. The court entered formal judgment on September
24, 2013. Id.
appealed and, on May 29, 2014, the United States Court of
Appeals for the Fifth Circuit affirmed his conviction.
See United States v. Boutte, 569 F.App'x 311,
312 (5th Cir. 2014). Among other things, the Fifth Circuit
held Boutte's guilty plea on the firearm charge was
knowing and voluntary, and the trial court's denial of
Boutte's motion to withdraw his guilty plea was not
error. See Id. at 312-13.
August 21, 2015, Boutte filed the instant § 2255 motion,
challenging his guilty plea on the firearm charge and his
sentence. See Civ. Dkt. 1. Boutte argued: (1) his
guilty plea on the firearm charge was not knowing and
voluntary because he entered the plea without understanding a
sentence imposed on the firearm charge would run consecutive
to a sentence imposed for the drug conspiracy charge; (2) his
trial counsel rendered ineffective assistance when advising
him of the sentencing consequences of a guilty plea on the
firearm charge; and (3) he was entitled to a safety-valve
reduction to his sentence pursuant to Amendment 782 of the
Sentencing Guidelines. The Magistrate Judge concluded each of