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United States v. Gross

United States District Court, District of Columbia

February 2, 2016

UNITED STATES OF AMERICA
v.
KEVIN KINNARD GROSS, Defendant/Petitioner. Civil Action No. 12-0590 (PLF)

OPINION AND ORDER

PAUL L. FRIEDMAN, District Judge.

This matter is before the Court on the motions of defendant Kevin Kinnard Gross, to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255 and to modify his sentence under 18 U.S.C. § 3582(c)(2).

Defendant's motions raise three claims. First, defendant Gross argues that his 120 month sentence violates the Fair Sentencing Act of 2010, which reduced the mandatory minimum sentence for the drug offense with which the defendant was charged from ten years to five. Second, defendant claims that his sentence must be reduced pursuant to Amendments 782 and 788 to the United States Sentencing Guidelines, which retroactively reduced the sentencing range applicable to drug trafficking crimes and reduced the offense levels assigned in the Drug Quantity Table by two levels. Lastly, defendant argues that he received ineffective assistance of counsel because his attorney failed to file a notice of appeal from his conviction as defendant had requested. The government opposes any reduction of defendant's sentence but concedes that an evidentiary hearing on his ineffective assistance of counsel claim is appropriate.

After careful consideration of the parties' papers, the record in this case, and the relevant case law, the Court will deny defendant's motions as to the length of his sentence, but will grant his request for an evidentiary hearing on his ineffective assistance of counsel claim.[1]

I. BACKGROUND

A federal grand jury indicted defendant Gross on one count of unlawful distribution of five grams or more of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(iii) and 18 U.S.C. § 2, and on one count of unlawful distribution of fifty grams or more of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(iii) and 18 U.S.C. § 2. Indictment at 1-2. At the time of the indictment, Gross was in custody in connection with a six-count indictment in the District of Columbia Superior Court, where he was charged with one count of unlawful conspiracy, two counts of assault with intent to kill while armed, two counts of unlawful possession of a firearm during the commission of a crime of violence, and one count of unlawful carrying of a pistol without a license. Present. Invest. Rep. at 11.

Several months later, while the parties were engaged in plea negotiations, the President signed into law the Fair Sentencing Act of 2010, which raised the threshold for a ten year mandatory minimum sentence from 50 grams of cocaine base to 280 grams. Fair Sentencing Act of 2010 ("FSA"), Pub. L. No. 111-220, § 2(a), 124 Stat. 2372, 2372 (2010). The United States Sentencing Commission subsequently promulgated a temporary amendment to the Sentencing Guidelines in conformance with the FSA, which took effect on November 1, 2010. U.S.S.G. App. C, Amend. 750 (2010). Because the amount of cocaine base charged in this case was less than 280 grams, Gross filed a motion seeking clarification from this Court as to whether, if he were convicted or pled guilty, the Court would retroactively apply the new mandatory minimums under the FSA in sentencing him. See Defendant's Mot. to Clarify Sentencing [Dkt. No. 13]. The government filed an opposition, contending that the amendment to the FSA did not apply retroactively. At a status conference on December 1, 2010, after hearing at length from counsel for the parties, the Court orally ruled that, in its view, the FSA did apply retroactively to any individuals yet to be sentenced and stated that it would impose a five-year mandatory minimum sentence - and not a ten-year mandatory minimum - when sentencing defendant Gross on the crack cocaine charge if the defendant was convicted on or pled guilty to that charge.

On February 3, 2011, the government and defendant Gross entered into a plea agreement pursuant to Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure that resolved all the charges before this Court and the D.C. Superior Court in one plea. See FED. R. CRIM. P. 11(c)(1)(C) and (3)(A) (court bound by agreement as to specific sentence agreed to by parties once it unconditionally accepts (C) plea). In connection with the plea agreement, the government filed a superseding information charging Gross with a single count of unlawful distribution of 50 grams or more of cocaine base, in violation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(A)(iii), and two counts of assault with a dangerous weapon, in violation of 22 D.C. Code § 402. The parties agreed to a sentence of 120 months on Count One of the Information and 36 months for each of the assault charges, all sentences to run concurrently. Plea Agreement at 2. As part of the agreement, the government agreed to dismiss the indictment in this case and the two assault with intent to kill charges, the three gun possession charges, and the conspiracy charge pending in the Superior Court. Id . at 4-5.

At the plea hearing, the Court reaffirmed that it would have applied the FSA retroactively and that Gross therefore would have been subject only to a five-year mandatory minimum sentence for the drug conviction, but that was irrelevant in the circumstances presented: the 120-month sentence was being imposed pursuant to a comprehensive Rule 11(c)(1)(C) plea agreement intended to resolve both Gross' drug charges in this Court and the assault with intent to kill and other charges in the Superior Court. Plea Transcript at 4. In accepting the plea, the Court noted that "the agreement is a sentence of 120 months. Not because Mr. Gross believes it's the mandatory minimum, but because that's an agreement you all have reached to try to wrap up both this case and the Superior Court case." Id . at 5. The government also indicated that, although it continued to believe that the FSA did not apply retroactively, it had removed any references to the mandatory minimum sentence from the plea agreement because "the references to the statutory mandatory minimum are not necessary for the purposes of this plea." Id . at 4.

At the sentencing hearing on April 19, 2011, the Court began by calculating defendant Gross' sentencing range under the Guidelines as required by the law. See United States v. Duvall, 705 F.3d 479, 483 (D.C. Cir. 2013) (citing 18 U.S.C. § 3553(a)(4); U.S.S.G. § 6B1.2(c)). It did so despite the fact that, having accepted defendant's Rule 11(c)(1)(C) plea, the Court was bound to sentence Gross to the agreed-upon 120-month term. Sentencing Transcript at 3-4. With an offense level of 26 for the crack cocaine offense, a three-level downward adjustment for acceptance of responsibility, and a Criminal History Category I, Gross' calculated Guidelines sentencing range on Count One was 46 to 57 months, notwithstanding any mandatory minimums. Id . at 2-4. The Court then stated that, even under its interpretation of the FSA, a five year mandatory minimum still would have applied. The Guidelines sentencing range therefore effectively would be 60 months to 60 months on Count One. Id . at 3-4; see U.S.S.G. § 5G1.1(b) (2015). In doing these Guidelines calculations, the Court noted that, although it was required to explain the applicable Guidelines sentencing range, "it is really kind of irrelevant because you all have agreed under Rule 11(c)(1)(C) of the rules of this Court and 11(e)(1)(C) of the rules of the Superior Court, as part of the plea agreement, to a particular sentence." Id . at 5-6.

Gross now claims that, because the FSA applies retroactively, he should benefit from the new, lower statutory mandatory minimum established by the FSA. He also claims the benefit of a sentence modification under 18 U.S.C. § 3582(c)(2), arguing that Amendments 782 and 788 to the Sentencing Guidelines lowered his Guidelines sentencing range from 46 to 57 months to 37 to 46 months. Gross also argues that he received ineffective assistance of counsel because his attorney failed to file a notice of appeal despite being instructed to do so. The government maintains (1) that Gross' sentence was not imposed in violation of the FSA because Gross was not sentenced pursuant to a mandatory minimum sentence established by statute, and (2) that Gross is ineligible for a sentence modification under Section 3582(c). This is so because the Court did not impose the sentence pursuant to the FSA or the retroactive changes to the Sentencing Guidelines for crack cocaine offenses, but pursuant to a binding Rule 11(c)(1)(C) plea agreement embodying the global resolution of all of Mr. Gross' charges in both this Court and the Superior Court. The government agrees, however, that an evidentiary hearing must be held to resolve the ineffective assistance of counsel claim.

II. DISCUSSION

A. Unlawful Sentencing Under Section 2255

28 U.S.C § 2255 authorizes a prisoner sentenced by a federal court to move to vacate, set aside, or correct his sentence on the grounds that "the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." 28 U.S.C. § 2255(a). The Court may grant relief under Section 2255 if it determines that the challenged sentence "was tainted by a fundamental defect which inherently results in a complete miscarriage of justice' or an omission inconsistent with the rudimentary demands of fair procedure.'" United States v. Weaver, 265 F.3d 1074, 1077 (D.C. Cir. 2001) (quoting United States v. Farley, 72 F.3d 158, 162 (D.C. Cir. 1995)). The Court must hold a hearing under Section 2255 to determine the issues and make findings of fact and conclusions of law unless "the motion and the files and records of the case conclusively show that the [defendant] is entitled to no relief." 28 U.S.C. § 2255(b). It must also hold a hearing when the motion "raises detailed and ...


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