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United States v. McWhorter

July 14, 2010

UNITED STATES OF AMERICA, RESPONDENT,
v.
GARY DEWAYNE MCWHORTER, MOVANT.



FINDINGS AND RECOMMENDATIONS

Movant has filed a motion to vacate, set aside, or correct his federal sentence pursuant to 28 U.S.C. § 2255. Movant claims that he received ineffective assistance from his trial counsel. In opposing the motion for relief, respondent asserts that movant is procedurally barred from pursuing this relief because he expressly waived his right to appeal or collaterally attack his sentence and conviction as part of his plea agreement in the underlying action. Respondent also argues that movant's claim is without merit.

Having considered all the papers filed by the parties and the record in this action, for the reasons set forth below, the court will recommend that the motion be denied.

PROCEDURAL HISTORY

On September 17, 2004, a criminal complaint was filed against movant, alleging that he willfully and knowingly possessed with the intent to distribute more than 250 grams of cocaine base in violation of 21 U.S.C. § 841(a)(1). (Doc. No. 1.) Movant's initial appearance before the court took place that same day and a preliminary hearing was scheduled for October 1, 2004. (Doc. No. 4.) On September 30, 2004, a federal grand jury for the Eastern District of California indicted movant on one count of violating 21 U.S.C. § 841(a)(1). (Doc. No. 6.) The grand jury further charged that movant committed that offense after suffering a prior conviction for a felony drug offense. (Id.) On October 4, 2004, movant was arraigned on the indictment, entered a plea of not guilty and a status hearing was set for October 14, 2004. (Doc. No. 7.)

After several status hearings, on October 13, 2005, the parties filed a plea agreement for the court's consideration. (Doc. No. 28.) That same day movant withdrew his previously entered plea of not guilty and entered a new plea of guilty to the charged violation of 21 U.S.C. § 841(a)(1). (See Minutes of Oct. 13, 2005 hearing.) In exchange for pleading guilty the government agreed to recommend that movant be sentenced to the low end of the applicable sentencing guideline range as determined by the court, to not oppose a reduction in movant's offense level based upon his full and clear demonstration of acceptance of responsibility if appropriate, and to not file a sentencing enhancement based on a prior offense. (Doc. No. 28 at 3.) On January 26, 2006, movant appeared before the court and was sentenced to the custody of the U.S. Bureau of Prisons for a 235-month term of imprisonment. (Doc. No. 34.)

On January 16, 2007, movant filed his § 2255 motion with this court to vacate, set aside, or correct his sentence on his own behalf. (Doc. No. 37 (hereinafter "Motion").) Respondent filed a response opposing the motion on March 15, 2007. (Doc. No. 45 (hereinafter "Response").) Petitioner filed a traverse, styled as "Objection to Government Response" on April 26, 2007. (Doc. No. 47 (herein after "Reply").)

FACTUAL BACKGROUND

At the hearing on movant's change of plea, movant acknowledged the following factual basis for his plea:

On September 16th of 2004, [movant] was successfully arrested pursuant to [a] successfully executed buy/bust operation. At the time of his arrest, [movant] possessed with the intent to distribute at least two hundred fifty grams of cocaine base.

The facts which led up to this arrest started on September 11th of 2004, while working with a confidential source, a meeting for a buy/bust was set up with [movant.]

During a call with the confidential source, the source indicated he wanted to purchase approximately nine ounce of cocaine base from [movant.]

On September 16th of 2004, the source placed yet another call to [movant] where [movant] agreed to meet the source at a Wendy's restaurant on Watt Avenue near I-80, in the Eastern District of California.

On the same date at approximately 7:15 p.m., [movant] was observed driving alone in a gold colored Nissan. The source was observed getting into [movant's] vehicle and engaging in conversation.

The conversation between [movant] and the source was monitored and recorded. The source asked to see the cocaine base, and [movant] pulled it out of his pants pocket. The source also asked if it was, quote, good, meaning the correct weight and correct number of ounces. [Movant] responded "Yeah, the guy weighed them all out at twenty-seven point five himself." The source then told [movant] that he would go and get the money, at which point the source gave the prearranged arrest signal, and the agents moved in to arrest [movant].

At that point . . . [movant] was observed backing out of the stall as the agents were approaching him and failed to yield to agents as they attempted to arrest him, almost running over DEA Agent Zavala. [Movant] drove out of the lot and drove down the freeway at a hundred ten miles an hour, lost control of his vehicle at a freeway off-ramp, and spun out at the bottom of the ramp.

When [movant] got out, he tried to evade capture by running into a residential area. He was apprehended two blocks from his car.

As [movant] began his attempts to evade capture, he threw the cocaine base from his car onto the on-ramp from Watt Avenue onto I-80 westbound entrance. Special Agent Tom Bacon found the cocaine base in the same location where it was thrown. Special Agent David Parkhurst took custody of the cocaine base, met with the source, who identified the bag as the same bag [movant] pulled out of his pants pocket. The source also confirmed the man he met with in the car was [movant.]

The substance tested positive for cocaine base, two hundred fifty grams, a Schedule II controlled substance. (Response, Ex. 2 at 27-29.)*fn1

MOVANT'S CLAIMS

Movant alleges that he received ineffective assistance from his trial counsel. In this regard, he argues that his counsel "induced him to accept" the plea agreement by promising that the government would not seek to enhance movant's sentence based on his flight. (Motion at 19.) Movant asserts that his "flight was a natural attempt to avoid apprehension, and was not a willful attempt to impede or obstruct justice," and that his trial counsel "had no excuse for not raising" this "crucial defense." (Id. at 21.) Movant also claims that his trial counsel promised that he "would raise the ...


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