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United States v. Smith

United States District Court, S.D. Ohio, Western Division, Cincinnati

January 5, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
CARMELLA V. SMITH, Defendant.

          Susan J. Dlott District Judge.

          REPORT AND RECOMMENDATIONS

          MICHAEL R. MERZ UNITED STATES MAGISTRATE JUDGE.

         This case is before the Court on Defendant Carmella Smith's Motion to Vacate under 29 U.S.C. § 2255 (ECF No. 252).

         Procedural History

         In 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).

         Ms. 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 particulars:

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 excluded.
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 departure.
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 ยง 2255 Motion to the undersigned Magistrate Judge shortly ...


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