United States District Court, E.D. Kentucky, Central Division, Lexington
OPINION AND ORDER
K. CALDWELL, CHIEF JUDGE
matter is before the Court on defendant Aaron Lee
Raglin's motion to vacate, set aside, or correct his
sentence pursuant to 28 U.S.C. § 2255 (DE 223). The
motion was referred to a magistrate judge who has recommended
that the Court deny the motion and that the Court not issue a
Certificate of Appealability. Raglin has filed well-written
objections to the magistrate judge's recommendation (DE
pleaded guilty to conspiring to distribute 500 grams or more
of cocaine. By judgment dated December 15, 2015, this Court
sentenced him to a prison term of 120 months. (DE 148, Raglin
Judgment.) Raglin's § 2255 motion and his objections
all center on his argument that the indictment in this case
was faulty because it charged him with conspiring to
distribute five kilograms or more of cocaine but charged his
three co-defendants with conspiring to distribute only 500
grams or more. (DE 34, Superseding Indictment, Count 1.)
seems to make two arguments as to why this requires that his
sentence be vacated. First, Raglin argues that Count 1 of the
indictment was “duplicitous” because it actually
charged two different crimes: a conspiracy to distribute 5
kilograms or more of cocaine and a conspiracy to distribute
500 grams or more of cocaine. (DE 251, Objections at 5.)
are a few problems with this argument, First, “an
indictment is duplicitous if it sets forth separate and
distinct crimes in one count.” United States v.
Davis, 306 F.3d 398, 415 (6th Cir. 2002). The vice of
duplicity is that a jury may find a defendant guilty on a
count without reaching a unanimous verdict on any particular
offense. United States v. Boyd, 640 F.3d 657, 665-66
(6th Cir. 2011). The primary concern is that a defendant is
deprived of his right to a unanimous jury verdict.
Id. at 666. Raglin does not argue that Count 1
charges him with two crimes. Instead, he argues that it
charges him with a different crime than his co-defendants.
This is not an argument that the indictment is duplicitous.
the potential that any jury verdict was not unanimous is not
a concern here. Raglin pleaded guilty to the lesser included
offense of Count 1 of conspiring to distribute 500 grams or
more of cocaine. Thus, there was no jury verdict.
Raglin has waived any right to challenge Count 1 on
constitutional grounds by pleading guilty to a
lesser-included offense. United States v.
Martinez-Orozco, 52 Fed.Appx. 790, 792 (6th Cir. 2002).
“When a criminal defendant has solemnly admitted in
open court that he is in fact guilty of the offense with
which he is charged, he may not thereafter raise independent
claims relating to the deprivation of constitutional rights
that occurred prior to the entry of the guilty plea.”
Tollett v. Henderson, 411 U.S. 258, 267 (1973).
argues the indictment did not provide him adequate notice of
the conspiracy charge against him. Courts have recognized
that this is another danger of a duplicitous charge.
United States v. Berardi, 675 F.2d 894, 899 (7th
Cir. 1982) (citing United States v. Alsobrook, 620
F.2d 139, 142 (6th Cir. 1980)); United States v.
Blandford, 33 F.3d 685, 699, n.17 (6th Cir. 1994).
Nevertheless, by pleading guilty to a lesser-included offense
of Count 1, Raglin has waived any right to bring a claim that
he did not have adequate notice of the charge.
even if Raglin could raise a claim that he did not have
adequate notice of the charge against him, the indictment was
clear as to the amounts that Raglin was charged with
conspiring to distribute. Count 1 charges all the
co-codefendants with conspiring to distribute cocaine. In a
section titled “Quantity of Cocaine Involved in the
Conspiracy, ” the indictment explicitly asserts that
“the amount involved in the conspiracy attributable to
[Raglin] as a result of his own conduct, and the conduct of
other conspirators reasonably foreseeable to him, is 5
kilogram[s] or more, in violation of 21 U.S.C. §
841(b)(1)(A)(ii).” As to the other three defendants,
the indictment clearly stated that the amount of cocaine
attributable to them was 500 grams or more.
these reasons, Raglin's argument that his sentence should
be vacated because Count 1 of the indictment was duplicitous
second argument is what he describes as his “main
argument.” (DE 251, Objections at 1.) He argues that
his sentence for distributing at least 500 grams of cocaine
should be set aside because the indictment “never
charged ‘a conspiracy to distribute 5 kilograms or more
of cocaine' at all.” (DE 251, Objections at 1.)
Raglin argues that “it makes no sense to hold that the
petitioner conspired with 3 defendants to distribute 5
kilograms or more of cocaine, but that those 3 defendants
never conspired with the petitioner to distribute 5 kilograms
or more . . . .” (DE 251, Objections at 7.)
however, Raglin ultimately pleaded guilty to conspiring to
distribute 500 grams or more of cocaine, a lesser included
offense of Count 1. His guilty plea to that offense waives
any claim that Count 1 of the indictment did not properly
charge an offense. See Martinez-Orozco, 52 Fed.Appx.
at 792; Tollett v. Henderson, 411 U.S. at 267.
Moreover, Raglin's plea to conspiring to distribute at
least 500 grams of cocaine renders irrelevant his argument
that Count 1 did not properly charge him with conspiring to
distribute at least 5 kilograms of cocaine.
Count 1 of the indictment is not improper just because it
charged Raglin with conspiring to distribute more cocaine
than his co-conspirators were charged with. “Generally,
a defendant involved in a drug-conspiracy is responsible for
the drug quantities for which he is directly involved, and
any quantity that is a reasonably foreseeable consequence of
the conspiracy.” United States v. Anderson,
333 Fed.Appx. 17, 25 (6th Cir. 2009) (citing United
States v. Caver, 470 F.3d 220, 246 (6th Cir.2007)).
grand jury may receive evidence indicating that one member of
a conspiracy had knowledge that would make the
conspiracy's ultimate distribution of at least 5
kilograms of cocaine reasonably foreseeable to that
defendant. The grand jury may receive evidence indicating
that another member of the conspiracy had more limited
knowledge, making the conspiracy's distribution of only
500 grams foreseeable to him. In ...