United States District Court, N.D. Texas, Fort Worth Division
MEMORANDUM OPINION AND ORDER
MCBRYDE UNITED STATES DISTRICT JUDGE.
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.
contained in the record of the underlying criminal case
discloses the following:
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
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.
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.
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).
of the Motion
asserts four grounds in support of his motion, worded as
GROUND ONE: The petitioner's sentence is
procedurally and substantively unreasonable.
1 at PagelD 6;
GROUND TWO: The petitioner's sentence
was wrongfully-enhanced based upon the conflicts among the