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UNITED STATES v. PEYTON

July 11, 1995

UNITED STATES OF AMERICA
v.
DWAYNE R. PEYTON, Defendant.



The opinion of the court was delivered by: RICHEY

 UNITED STATES DISTRICT JUDGE

 Before the Court in the above-entitled case is the Defendant's Motion to Vacate his sentence for violation of 18 U.S.C. § 924(c)(1) (Carrying a Firearm in Connection with a Drug Trafficking Crime) pursuant to 28 U.S.C. § 2255, the Government's Opposition, and the Defendant's Reply thereto. Upon careful consideration of the parties' pleadings, the entire record herein, and the applicable law, the Court will DENY the Defendant's Motion.

 I. BACKGROUND

 On June 28, 1993, the Defendant entered a plea of guilty to Count One of the superseding information in the above-entitled case, conspiracy to possess and distribute cocaine base in violation of 18 U.S.C. § 371, and Count Two thereof, using and carrying a firearm during a drug trafficking offense in violation of 18 U.S.C. § 924(c)(1). On September 13, 1993, the Court sentenced the Defendant to two consecutive 60-month terms. Defendant now seeks to withdraw his plea of guilty to Count Two, arguing that his plea was made without an understanding of the nature of the charge or the consequences of the pleas and, that in entering the plea, he was accordingly denied the effective assistance of counsel. Motion P 11. Defendant does not contest his conviction pursuant to Count One. Id. P 10.

 In seeking to withdraw his plea of guilty to Count Two, the Defendant maintains that, "prior to his plea he had not inspected the information and had not been informed of what the offense entailed." Motion P 12. "During the plea proceedings," Defendant claims, "when he questioned his counsel concerning the nature of the charge, he was told that the plea was in his best interests and [that] the exact nature of the charge was not important." Id. The Defendant asserts that

 
he was not using [or] carrying a weapon in connection with drug trafficking on April 27, 1993 and that he is innocent of that charge. He additionally contends that the facts proffered by the government were insufficient to support the charge and that, had he been adequately informed by his counsel of the elements of the offense, he would never have entered a guilty plea [thereto].

 Id. The Defendant further notes that "during the course of the presentence investigation, [he] stated that he never used the gun that was found in the kitchen closet." Id.

 With regard to the fact that his sentences run consecutively, the Defendant asserts that

 
he had not been informed prior to the plea proceeding that the sentences for the two charges would have to run consecutively, and that he did not understand this until sentencing. Had he been supplied with adequate information and explanation of the sentencing consequences, [the Defendant maintains], he would not have entered his guilty plea.

 Motion P 12. The Defendant accordingly seeks to withdraw his plea of guilty to Count Two.

 The Defendants assertions regarding his ignorance of the elements of Count Two and the fact that the sentences for Counts One and Two would run consecutively are patently inconsistent with the transcript of the plea proceeding. The following excerpt shows that the Defendant was informed of the elements of Count Two.

 THE COURT: Secondly, with respect to the second crime, the elements of that offense are that you used or carried a firearm, that you did so knowingly and intentionally, and that you did so during and in relation to a drug-trafficking offense. Do you understand the elements of these two crimes?

 A: Yes, sir.

 Tr. at 6, lines 18-20. Concerning the Government's proffer of what it would have proved, had the case gone to trial, Counsel for the Government indicated that it would have proved the elements of such offense:

 MR. HARKINS: . . . On or about April 27, 1993, this operation that was conducted by the Metropolitan Police Department and the Federal Bureau of Investigation came to a close and a search warrant was executed in [the Defendant's] home at 4679 Benning Road, Apartment No. B, in the District of Columbia. At that time approximately 22.49 grams of crack cocaine and a firearm were seized from a doorjamb inside, or just outside of a closet, and the weapon was a ...


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