United States District Court, E.D. Kentucky, Central Division, Lexington
MEMORANDUM OPINION AND ORDER
DANNY C. REEVES, District Judge.
This matter is currently pending for consideration of Defendant Raynard Mosley's motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. [Record No. 29] Having considered Mosley's motion, the Court will deny the relief sought.
In September 2011, Mosley was residing at 345 Wilson Street in Lexington, Kentucky. On September 28th, officers of the Lexington Police department searched the premises and found various amounts of crack and powder cocaine, marijuana, and approximately $3, 498 in United States currency. Thereafter, a federal grand jury charged Mosley with two substantive counts of violating 21 U.S.C. § 841(a)(1). [Record No. 1] Prior to the scheduled trial date, the United States filed a notice of enhanced penalties pursuant to 21 U.S.C. § 851 based on Mosley's earlier drug convictions. [Record No. 9] As a result, Mosley faced enhanced penalties which included not less than ten years nor more than life imprisonment if convicted under Count 1. [ Id. ]
Mosley did not proceed to trial. Instead, on May 16, 2012, he moved the Court to be rearraigned for the purpose of entering a guilty plea to Count 1 of the Indictment. [Record Nos. 12, 15] At the time of his guilty plea, Mosley and the United States tendered a written Plea Agreement to the Court which outlined the elements the government would be required to prove if the matter proceeded to trial on Count 1. Further, in paragraph 3, the parties outlined the agreed facts supporting the defendant's guilty plea. And in paragraph 4, the parties summarized the maximum statutory punishment Mosely faced in light of his acknowledged prior felony drug convictions. [Record No. 22]
On November 20, 2012, Mosley was sentenced to a term of incarceration of 150 months based on his conviction under Count 1 of the Indictment. The Court ordered this sentence to run consecutive to the 37-month sentence imposed in Case No. 5: 05-CR-106. [Record No. 23] Pursuant to his agreement with the government, Mosely did not file a direct appeal following entry of the Judgment. However, contrary to paragraph 7 of the Plea Agreement, he now seeks to have the Court vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255. Mosley's motion was filed on November 22, 2013, or slightly less than one year after the judgment became final. Thus, the motion is timely for purposes of considering the relief sought.
Mosley makes two primary arguments in his § 2255 motion. First, he contends that he should not have been sentenced as a career offender under the Supreme Court's recent decisions in Alleyne v. United States, 133 S.Ct. 2151 (2013), and Descamps v. United States, 133 S.Ct. 2276 (2013). Next, Mosley alleges that his attorney provided ineffective assistance by failing to successfully challenge evidence recovered by police from a trash pull at his residence. According to Mosley, the subject evidence was obtained from a "shared trash container" which was "open and exposed to the public." He asserts that police trespassed by searching for evidence in this common area and had no reason for attributing the evidence obtained to him. [Record No. 29]
A. Mosley Is Not Entitled To Collateral Relief Under Recent Decisions of the United States Supreme Court.
Mosley does not explain in any detail how the Supreme Court's holdings in Alleyene or Descamps apply to his case. Likewise, he does not contest the fact that, prior to the current conviction, he was convicted in the Fayette Circuit Court for trafficking in a controlled substance i.e., cocaine (Case Number 92-CR-595), or in this Court for conspiring to knowingly and intentionally possess and distribute cocaine (Case Number 5: 05-106-KSF). Instead, he asserts that his prior convictions do not qualify as sentencing enhancements under United States Guideline Section 4B1.1 because "they are not categorically serious drug crimes." [Record No. 29, p. 5] Defendant Mosley was sentenced by now-retired United States District Judge Jennifer B. Coffman. A review of the transcript of the sentencing hearing held on November 20, 2012, clearly demonstrates that Mosely was not sentenced under the guidelines established for career offenders. Any argument to the contrary is clearly misplaced.
At the time of the sentencing hearing, the Court correctly calculated Mosley's guideline range of imprisonment under the United States Sentencing Guidelines as 262 to 327 months based upon his status as a career offender. [Record No. 36, p. 4] As the Sixth Circuit has held on various occasions, correctly calculating a defendant's guideline range is the first step in the sentencing process. See United States v. Wittingen, 519, F.3d 633, 637-38 (6th Cir. 2008) (a district court is not bound by the parties' recommendations in a plea agreement but is obligated to correctly calculate the guideline range); United States v. Davidson, 409 F.3d 304, 311-12 (6th Cir. 2005) (same). However, a sentence within the defendant's guideline range was not imposed. Instead, the Court imposed a sentence of 150 months, to run consecutively to the 37 month sentence imposed for the defendant's violation of conditions of supervised release in Case No. 5: 5-106-KSF.
The rationale for this significant sentence reduction is outlined in the transcript of the sentencing hearing. While the sentencing judge agreed, in part, with the Assistant United States Attorney that a sentence within the guideline range was not merited by nature of the crime committed, she disagreed with Mosley's counsel that a minimum sentence of 120 months would be sufficient punishment for his crime. [ Id., pp. 14-21] After considering various sentencing factors contained in 18 U.S.C. § 3553, Judge Coffman concluded that "the sentence on the underlying offense has to be at least doubled" in comparison to Mosley's prior sentence of 70 months. In considering this reasoning and the Court's conclusion that a "guideline sentence is way to long, " [ Id., p. 19] it is clear that Mosley's status as a career offender under the sentencing guidelines played little or no role in the ultimate sentence imposed. And while Mosely now attempts to downplay the seriousness of his conduct, the sentencing judge clearly disagreed in making the following observations at the time the defendant was sentenced:
[The Court] Now, the question here is what's sufficient but not greater than necessary? Well these guidelines are a way. Given the circumstances of your case and given the sentences you've looked at before, given the - everything here, I think a sentence - the guideline sentence is way too long, and I don't hear real serious objection anywhere.
I do think that you have to look at more time now than you did the last time you were in federal court. The last time you were in federal court you got 70 months. You just knocked that aside and continued your drug activity, getting into even more serious offenses. So it has to be at least higher than 70 months. And I don't - I think double is a good - is a good measure. It has to be at least double to get your attention this time. Because once again, I'm hearing your words, but that's not the ...