United States District Court, N.D. Texas, Fort Worth Division
MEMORANDUM OPINION AND ORDER
McBRYDE UNITED STATES DISTRICT JUDGE.
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.
record in the underlying criminal case reflects the
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. 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.
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.
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) .
of the Motion
says in the typewritten form portion of his motion that he is
raising one ground as set forth in attached additional pages.
1 at PageID 7. However, the pages he has inserted
reflect that two grounds are being raised. Id.
PageID 8. They are worded as follows:
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 ...