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Humphrey v. United States

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

January 13, 2020

ROLANDO HUMPHREY, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION AND ORDER

          JOHN McBRYDE UNITED STATES DISTRICT JUDGE.

         Came on for consideration the motion of Rolando Humphrey, movant, to vacate, set aside, or correct sentence under 28 U.S.C. § 2255. The court, having considered the motion, the government's response, movant's reply, the record in the underlying criminal case, No. 4:16-256-A, styled "United States v, Rolando Humphrey," and applicable authorities, finds that the motion should be denied.

         I.

         Background

         The record in the underlying criminal case reflects the following:

         On November 9, 201, movant was named in a one-count indictment charging him with possession with intent to distribute a mixture and substance containing a detectable amount of cocaine, in violation of 21 U.S.C. §§ 841(a}(1) and (b)(1)(C). CR Doc.[1] 12. On April 21, 2017, 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. 27. 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. 28. 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. 53.

         The probation officer prepared the PSR, which reflected that movant's base offense level was 32. CR Doc. 32, ¶ 28. He received a two-level increase for possession of a dangerous weapon, Id. ¶ 29, and a two-level increase for maintaining a drug premises. Id. ¶ 30. Movant also received a two-level increase for obstruction of justice. Id. ¶ 33. Based on a total offense level of 38 and a criminal history category of IV, movant's guideline imprisonment range was 324 to 405 months. Id. ¶ 88. However, the statutorily-authorized maximum sentence was twenty years, so 240 months became the guideline imprisonment term. Id. Movant lodged objections to the PSR, CR Doc. 34, and the probation officer prepared an addendum, rejecting the objections. Cr Doc. 36. The addendum noted that the drug calculation was based on movant's own admission that he had sold approximately 250 grams of cocaine two to three times per week for the two preceding years. Id.

         On August 4, 2017, movant was sentenced to a term of imprisonment of 24 0 months. CR Doc. 46. He appealed. CR Doc. 48. His sentence was affirmed. United States v. Humphrey, 730 Fed.Appx. 265 (5th Cir. 2018). Movant's petition for writ of certiorari was denied. Humphrey v. United States, 139 S.Ct. 575 (2018) .

         II.

         Grounds of the Motion

         Movant says in the typewritten form portion of his motion that he is raising one ground as set forth in attached additional pages. Doc.[2] 1 at PageID[3] 7. However, the pages he has inserted reflect that two grounds are being raised. Id. PageID 8. They are worded as follows:

ISSUE ONE
Prior to movant entering guilty plea, the district court failed to accurately explain the element of the crime and burden of proof that movant possessed twenty-seven (27) kilograms of cocaine, nor did the district court explain that movant may be held responsible for any drug quantity outside of what was presented and ...

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