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Fogle v. United States

United States District Court, N.D. Texas, Fort Worth Division

May 14, 2019

LEE FOGLE, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION AND ORDER

          JOHN MCBRYDE UNITED STATES DISTRICT JUDGE.

         Came on for consideration the motion of Lee Fogle, movant, to vacate, set aside, or correct sentence under 28 U.S.C. § 2255. After having considered the motion, the government's response, movant's reply, and pertinent parts of the record in No. 4:16-CR-132-A, styled "United States of America v. Charles Ben Bounds, et al., " the court has concluded that the motion should be denied.

         I. Background

         Information contained in the record of the underlying criminal case discloses the following:

         On May 18, 2016, movant was named along with others in a one-count superseding indictment charging him with conspiracy to possess with intent to distribute 50 grams or more of a mixture and substance containing a detectable amount of methamphetamine, in violation of 21 U.S.C. §846. CR Doc.[1] 215. On July 8, 2016, movant appeared before the court with the intent to enter a plea of guilty to the offense charged without benefit of a plea agreement. CR Doc. 391. Movant and his attorney signed a factual resume setting forth the elements of the offense, the maximum penalty movant faced, and the stipulated facts supporting movant's guilt. CR Doc. 368. Under oath, movant stated that no one had made any promise or assurance of any kind to induce him to plead guilty. Further, movant stated his understanding that the guideline range was advisory and was one of many sentencing factors the court could consider; that the guideline range could not be calculated until the presentence report ("PSR") was prepared; the court could impose a sentence more severe than the sentence recommended by the advisory guidelines and movant would be bound by his guilty plea; movant was satisfied with his counsel and had no complaints regarding his representation; and, movant and counsel had reviewed the factual resume and movant understood the meaning of everything in it and the stipulated facts were true. CR Doc. 1256.

         The probation officer prepared a presentence report that indicated that movant's base offense level was 34. CR Doc. 766, ¶ 39. Movant received a two-level increase for possession of a dangerous weapon, Id. ¶ 40, a two-level increase for use of violence, id. ¶ 41, and a two-level increase for importation of methamphetamine from Mexico, id. ¶ 42. He received a two-level and one-level decrease for acceptance of responsibility. Id. ¶¶ 48-49. Based on a total offense level of 37 and a criminal history category of III, movant's guideline imprisonment range was 2 62 to 32 7 months. Id. ¶ 114. Movant filed objections, CR Doc. 787, and the probation officer prepared an addendum to the PSR, CR, Doc. 835.

         The government filed a motion for downward departure. CR Doc. 915. The court heard evidence regarding movant's objection to the PSR based on quantity of methamphetamine attributed to movant and overruled the objection. CR Doc. 12 91 at 4-14. The court also heard evidence supporting the government's motion for downward departure, id. at 15-17. The court sentenced movant to a term of imprisonment of 250 months. CR Doc. 952. The court noted that movant's sentence would have been 32 7 months, but for his cooperation with the government and the motion for downward departure. CR Doc. 1291 at 23-24. Movant appealed, CR Doc. 961, and his sentence was affirmed. United States v. Fogle, 715 Fed.Appx. 403 (5th Cir. 2018).

         II.

         Grounds of the Motion

         Movant asserts four grounds in support of his motion, worded as follows:

GROUND ONE: The petitioner's sentence is procedurally and substantively unreasonable.

Doc.[2] 1 at PagelD[3] 6;

GROUND TWO: The petitioner's sentence was wrongfully-enhanced based upon the conflicts among the ...

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