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United States v. Beard

United States District Court, W.D. Kentucky, Paducah Division

July 18, 2017

UNITED STATES OF AMERICA, Respondent/Plaintiff,
v.
BARRY KENTON BEARD, Movant/Defendant.

          MEMORANDUM OPINION

          Thomas B. Russell, Senior Judge

         In 2014, Barry Kenton Beard pleaded guilty to conspiring to possess methamphetamine for intended distribution, aiding and abetting the possession of methamphetamine for intended distribution, aiding and abetting the maintenance and control of a place for controlled substances, and being a felon in possession of a firearm. Consistent with the parties' plea agreement, the Court sentenced Beard to 180 months imprisonment and five years of supervised release. Now, Beard asks the Court to vacate, set aside, or correct that sentence pursuant to 28 U.S.C. § 2255.

         The Court referred Beard's motion to Magistrate Judge Lanny King for his consideration. Without holding a hearing, the Magistrate Judge recommended that the Court deny Beard's motion. Beard objected to the recommended disposition. Reviewing the record anew, the Court found sufficient questions of fact to require an evidentiary hearing. The Court appointed Beard counsel and held a hearing on his motion. With the benefit of that added testimony, the Court agrees with the Magistrate Judge's ultimate conclusion. Therefore, the Court ADOPTS IN PART and REJECTS IN PART the Magistrate Judge's Findings of Fact, Conclusions of Law, and Recommendation, [R. 108], OVERRULES Beard's Objection, [R. 109], and DENIES Beard's Motion to Vacate, Set Aside, or Correct Sentence, [R. 97].

         I.

         A.

         In 2013, a grand jury charged Barry Kenton Beard with conspiring to possess methamphetamine for intended distribution, aiding and abetting the possession of methamphetamine for intended distribution, aiding and abetting the maintenance and control of a place for controlled substances, and being a felon in possession of a firearm. [R. 1 at 1-3 (Indictment).] Beard filed a motion to suppress, challenging the validity of the search that led to the indictment. [R. 24 (Motion to Suppress).] The Court scheduled a suppression hearing and referred the matter to Magistrate Judge Lanny King for findings of fact, conclusions of law, and a recommended disposition. [R. 28 (Order of Referral).]

         Beard's motion prompted the Government to offer him a deal. In detail, the Government proposed to recommend, at the time of sentencing, a term of imprisonment of 46 months with three years of supervised release. [R. 46 at 6, ¶ 10 (Plea Offer).] The Government's offer was contingent, however, on Beard withdrawing his motion to suppress prior to the scheduled hearing. [R. 132 at 37-38 (Hearing Transcript) (Box's Testimony).] Edward K. Box, who was Beard's attorney at the time, communicated the Government's offer to him. [Id. at 9-10 (Beard's Testimony).] Box accurately explained (and Beard understood) the consequences of declining the Government's offer: He faced a possible sentence in excess of 300 months imprisonment, and any future offer would be far less favorable to him. [Id. at 11, 15.]

         Box advised Beard to accept the Government's offer. [Id. at 39 (Box's Testimony).] At first, Beard followed that advice. [Id. at 42.] But Beard soon had a change of heart and, despite Box's counsel, rejected the offered. [Id. at 43-45.] Subsequently, the Magistrate Judge held the suppression hearing and recommended that the Court deny Beard's motion to suppress. [R. 39 (Findings of Fact, Conclusions of Law, and Recommendation).] The Court adopted that suggestion, [R. 49 (Memorandum Opinion)], over Beard's objection, [R. 42 (Objection)].

         Following the Court's disposition of that motion, the Government extended a second offer to Beard-though, this time, on much less favorable terms. [R. 55 at 4, ¶ 10 (Plea Agreement).] Beard accepted the Government's offer on May 15, 2014. [Id. at 1- 2.] Consistent with the parties' agreement, the Court sentenced Beard to 180 months imprisonment and five years of supervised release. [R. 75 at 3 (Judgment).] Beard appealed his sentence, which the Sixth Circuit Court of Appeals affirmed by unpublished opinion. [R. 92 at 2-5 (Opinion).]

         B.

         Following the conclusion of his direct appeal, Beard filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. [R. 97 (Motion to Vacate, Set Aside, or Correct Sentence).] He raised, in pertinent part, an ineffective-assistance-of-counsel claim regarding Box's performance during the plea-negotiation process. [Id. at 4-6.] The Court referred Beard's motion to Magistrate Judge King for his consideration. [R. 99 at 1, ¶ 3 (Order of Referral).]

         Without holding a hearing, the Magistrate Judge recommended that the Court deny Beard's motion. [R. 108 at 11 (Findings of Fact, Conclusions of Law, and Recommendation).] He concluded that Box had communicated the offer to Beard and had adequately impressed upon him the consequences of rejecting the offer. [Id. at 5-6, ¶¶ 1, 6.] In the alternative, the Magistrate Judge found that Beard had waived any claim related to Box's performance by entering a guilty plea. [Id. at 7, ¶ 10.]

         Beard objected to the recommended disposition. [R. 109 at 1-2 (Objection).] “Reviewing the record with fresh eyes, ” the Court found sufficient questions of fact to require an evidentiary hearing. [R. 113 at 1 (Order of April 1, 2016) (citing Pola v. United States, 778 F.3d 525, 535 (6th Cir. 2015); Huff v. United States, 734 F.3d 600, 607 (6th Cir. 2013)).] The Court appointed Beard counsel and held a hearing on his motion. [R. 125 (Order of September 7, 2016); R. 130 (Order of January 24, 2017); R. 131 ...


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