United States District Court, E.D. Texas, Tyler Division
MEMORANDUM ADOPTING REPORT AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE AND ENTERING FINAL
Clark, Senior District Judge.
Movant Larry McElhaney, proceeding pro se, filed
this motion to vacate or correct his sentence under 28 U.S.C.
§2255 complaining of the validity of his conviction.
This court ordered that the matter be referred to the United
States Magistrate Judge pursuant to 28 U.S.C. §636(b)(1)
and (3) and the Amended Order for the Adoption of Local Rules
for the Assignment of Duties to United States Magistrate
was charged with conspiracy to possess with intent to
distribute over 500 grams of methamphetamine, possessing a
firearm during a drug trafficking crime, and being a felon in
possession of a firearm. On February 3, 2015, he entered a
binding Rule 11(c)(1)(C) plea for an agreed sentence of 160
months in prison; however, counsel filed objections to the
pre-sentence report, which calculated his guideline range at
121 to 151 months. The parties then negotiated a revised
non-binding plea and McElhaney was allowed to replead on
December 3, 2015. On December 17, 2015, he received a
sentence of 151 months in prison on Count One of the
indictment, with the other two counts being dismissed.
raises three grounds for relief in his motion to vacate or
correct sentence. These are: (1) counsel provided ineffective
assistance for failing to demonstrate to the Court that
McElhaney was incorrectly sentenced under 28 U.S.C.
§841(b)(1)(A) rather than §841(b)(1)(B) because he
had pleaded guilty only to 169.7 grams of methamphetamine,
(2) his 151 month sentence is illegal under Apprendi v.
New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d
435 (2000) and Alleyne v. United States, 570 U.S.
99, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013) because his
mandatory minimum sentence was increased from five to 10
years, and (3) he received ineffective assistance of counsel
when his attorney, Mark Perez, failed to file a direct appeal
Government filed an answer contesting McElhaney's first
two claims and stating that an evidentiary hearing should be
conducted on the third claim. See United States v.
Tapp, 491 F.3d 263, 266 (5th Cir. 2007). Deborah Race
was appointed as counsel for McElhaney and a hearing was
conducted on June 26, 2018.
The Report of the Magistrate Judge
hearing the testimony and reviewing the pleadings, the
Magistrate Judge issued a Report recommending that
McElhaney's motion to vacate or correct sentence be
denied. The Magistrate Judge stated that although McElhaney
argued that he had pleaded guilty to distributing 169.7 grams
of a mixture or substance containing a detectable amount of
methamphetamine, he had in fact pleaded guilty to conspiracy
to possess with intent to distribute and distribution of 500
grams or more of a mixture or substance containing a
detectable amount of methamphetamine. The factual resume
which McElhaney signed states that “I admit that I
distributed and/or joined with others in distributing 500
grams or more of a mixture or substance containing a
detectable amount of methamphetamine.”
the pre-sentence investigation report states that “the
defendant has admitted being responsible for at least 500
grams of methamphetamine.” In discussing
McElhaney's overt acts, the pre-sentence report stated
that McElhaney had admitting to selling one pound [453.6
grams] of methamphetamine to an individual named Sampson and
that after the sale of this amount, the methamphetamine still
in McElhaney's car had a field weight of 169.7 grams. The
Magistrate Judge stated that these amounts total over 500
the Magistrate Judge stated that McElhaney's claim in
this regard was barred by the waiver of appeal provision
contained in his guilty plea. Citing United States v.
White, 307 F.3d 336, 343 (5th Cir. 2002), the Magistrate
Judge stated that while an ineffective assistance claim will
survive an appeal waiver where the alleged ineffectiveness
directly affects the validity of the waiver or the plea
itself, a claim of ineffective assistance of counsel at
sentencing does not implicate the validity of the plea itself
and thus is barred by the waiver. The Magistrate Judge
concluded that McElhaney failed to show that the alleged
ineffectiveness of counsel related to the voluntariness of
the guilty plea, particularly in light of McElhaney's
signing of the factual resume and his statements during the
pre-sentence investigation. Nor did McElhaney offer anything
to suggest that his acceptance of the waiver was anything
other than knowing and voluntary.
McElhaney argued that under Apprendi and
Alleyne, any facts which increased the mandatory
maximum or the mandatory minimum sentences must be admitted
by the defendant or submitted to a jury and proven beyond a
reasonable doubt. Because he pleaded guilty to only 169.7
grams or, alternatively, because only this amount was
attributable to him, McElhaney maintained that he should have
had only a five-year minimum sentence, but his sentence
included a 10-year mandatory minimum.
Magistrate Judge concluded that this claim lacked merit
because McElhaney signed the factual resume admitting
responsibility for at least 500 grams of a mixture or
substance containing a detectable amount of methamphetamine
and the pre-sentence investigation report made clear that he
admitted responsibility for this amount. In addition, the
Magistrate Judge stated that this claim was also barred by
the waiver of appeal, citing United States v.
Araromi, 477 Fed.Appx. 157, 2012 U.S. App. LEXIS 8256,
2012 WL 1414343 (5th Cir., April 24, 2012) (Apprendi
claim was barred by defendant's waiver of appeal) and
United States v. Tydus, 574 Fed.Appx. 294, 2014 U.S.
App. LEXIS 11583, 2014 WL 2767591 (5th Cir., June 19, 2014)
(rejecting challenge to validity of waiver of appeal, which
waiver barred the defendant's claim under
third ground for relief involved the alleged failure of his
attorney, Mark Perez, to file a notice of appeal after being
asked to do so. He testified at the evidentiary hearing that
after sentencing, Perez asked him if he wished to appeal and
he said yes, but when he heard nothing, he wrote to Perez and
the Clerk of the Court and learned that no appeal had been
also appeared at the hearing and testified that when he asked
if McElhaney wished to appeal, McElhaney said no. Perez
stated that has defended criminal cases for more than 20
years and that he always files appeals when clients request
that he do so. He stated in an affidavit that he has filed
many notices of appeal, worked ...