United States District Court, S.D. Ohio, Western Division, Cincinnati
J. Dlott District Judge.
REPORT AND RECOMMENDATIONS
MICHAEL R. MERZ UNITED STATES MAGISTRATE JUDGE.
case is before the Court on Defendant Carmella Smith's
Motion to Vacate under 29 U.S.C. § 2255 (ECF No. 252).
November 2015, Ms. Smith was indicted by the grand jury for
this District along with seven other people on a charge of
conspiracy to distribute in excess of five kilograms of
cocaine (Indictment, ECF No. 12). In March 2016 she agreed to
plead guilty to that charge with the understanding she faced
a mandatory minimum imprisonment term of five years and a
maximum of forty years (Plea Agreement, ECF No. 104, PageID
194). There was no agreement or promise about sentence.
Id. at PageID 198-99. The Agreement contained the
standard integration clause:
17. This written Agreement embodies all of the agreements and
understandings between the United States Attorney for the
Southern District of Ohio and the defendant. No
conversations, discussions, understandings, or other
documents extraneous to the Agreement shall be considered
part of this Agreement.
Id. at PageID 202. Judge Dlott accepted the Plea
Agreement and Ms. Smith's guilty plea pursuant to that
agreement in a Fed. R. Crim. P. 11 plea colloquy on April 7,
2016 (Transcript, ECF No. 130). Judge Dlott ordered a
presentence investigation by the Probation Department; the
Presentence Investigation Report (“PSR”) was
transmitted to Judge Dlott on October 19, 2016 (ECF No. 180).
On March 16, 2017, after the parties had had an opportunity
to submit sentencing memoranda, Judge Dlott conducted the
sentencing hearing which resulted in the judgment of
conviction (ECF Nos. 216, 223). The sentencing hearing has
now been transcribed (ECF No. 254).
Smith took no appeal, but filed the instant Motion within one
year of the sentence. She pleads that she received
ineffective assistance of trial counsel in the following
1. Defendant's attorney did not object to the evidence
that was presented during the sentencing hearing. This
evidence was not included in Discovery and was not relevant
to the Offense that defendant plead guilty to. It was
prejudicial towards defendant's sentencing and defendant
believed increased the sentence that was given.
Defendant's offense level was 28 with a Criminal History
of 1. The sentencing guidelines put defendant in a range of
78 - 97 months. Defendant was sentenced to 87 months.
The evidence was presented by DEA agent John Pearson. While
investigating a neighbor of the defendant's Agent Pearson
intercepted a phone call between the defendant and the
neighbor's girlfriend (Londa). Defendant advised Londa
that DEA Agents were in her house and that her children were
outside standing on the sidewalk. Londa said she was leaving
work and was on her way home. Agent Pearson implied that
defendant was a co-conspirator on the neighbor's drug
case. There was no discovery submitted to defendant and no
evidence connecting defendant to the neighbor.
2. Counsel did not advise defendant on Sentencing Guidelines
and where the offense level and Criminal History category
applied to the sentencing range.
3. Counsel did not review PSI/PSR with defendant and had no
chance to object or to correct any information included or
4. Counsel misinformed the defendant about the plea
agreement, where counsel told the defendant she was facing 5
years and the defendant thought she had an agreed sentence.
One week before sentencing Counsel called defendant to inform
that the Prosecution was seeking an upward departure to 103
months verses [sic] 60 months. A few days before sentencing
counsel called defendant to advise that the Judge was not
going to give an upward departure, but would give a downward
5. Counsel called my cousin, Shawn Laws, who had been a
client of counsel, and discussed defendant's case with
him. This was done without defendant's permission.
(Motion, ECF No. 252, PageID 745-46.) Judge Dlott referred
the § 2255 Motion to the undersigned Magistrate Judge