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McElhaney v. United States

United States District Court, E.D. Texas, Tyler Division

April 21, 2019

LARRY JOE McELHANEY
v.
UNITED STATES OF AMERICA

          MEMORANDUM ADOPTING REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE AND ENTERING FINAL JUDGMENT

          Ron Clark, Senior District Judge.

         The 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 Judges.

         I. Background

         McElhaney 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.

         McElhaney 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 as requested.

         The 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.

         II. The Report of the Magistrate Judge

         After 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.”

         Consequently, 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 grams.

         Furthermore, 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.

         Second, 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.

         The 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 Alleyne).

         McElhaney's 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 filed.

         Perez 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 ...


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