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Moore v. United States

United States District Court, S.D. Ohio, Eastern Division

June 12, 2018

BERRYON F. MOORE, III, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          George C. Smith Judge

          ORDER AND REPORT AND RECOMMENDATION

          Elizabeth A. Preston Deavers United States Magistrate Judge

         Petitioner, a federal prisoner, brings this Motion to Vacate under 28 U.S.C. § 2255. This matter is before the Court on the Motion to Vacate under 28 U.S.C. § 2255, Respondent's Answer in Opposition, Petitioner's Reply, and the exhibits of the parties. For the reasons that follow, the Magistrate Judge RECOMMENDS that the Motion be DENIED and this action be DISMISSED.

         Respondent's motion for leave to file an untimely response (see ECF No. 317) is GRANTED.

         Facts and Procedural History

         Petitioner challenges his underlying conviction, pursuant to his negotiated Plea Agreement, on Count One of the Second Superseding Indictment, conspiracy to possess with intent to distribute heroin, in violation of 21 U.S.C. § 841(b)(1)(C), § 846. (ECF Nos. 248, 255.) On June 24, 2015, the Court imposed a sentence of 105 months imprisonment to be followed by three years supervised release. (ECF No. 287.) The United States Court of Appeals for the Sixth Circuit summarized the facts and procedural history of the case as follows:

In December 2013, Berryon F. Moore, III was indicted on multiple federal charges related to the distribution of heroin. He was released on bond. Moore was subsequently charged in a criminal complaint with additional federal drug offenses that he committed while on pretrial release in the first case. To resolve both cases, Moore pleaded guilty to Count One (conspiracy to possess heroin with the intent to distribute the drug) in the first case and also admitted that he had committed additional heroin-distribution offenses while on pretrial release.
At sentencing, Moore advanced a sentencing-disparities argument in support of his request for a term of imprisonment below his Sentencing Guidelines range. The district court in fact sentenced Moore to a below-Guidelines term of imprisonment, but failed to specifically acknowledge Moore's sentencing-disparities argument. During the sentencing hearing, the court divided Moore's sentence into two separate, consecutive terms of imprisonment: one for Count One and the other for committing an offense while on pretrial release.
Moore now appeals, claiming that the district court erred by (1) imposing a sentence for committing an offense while on pretrial release, and (2) not acknowledging Moore's argument concerning sentencing disparities. . . .
I. BACKGROUND
A. Indictment and guilty plea Between 2010 and 2013, Moore participated in a scheme to distribute heroin in Steubenville, Ohio. An investigation by the FBI into this conduct resulted in Moore's arrest in December 2013. That same month, Moore was indicted on two federal counts related to heroin distribution. Moore was then released on bond pending trial. A second superseding indictment was filed in October 2014, charging Moore with five counts related to heroin and cocaine distribution. The conduct charged in this indictment, as in the original indictment, allegedly occurred between 2010 and 2013.
In December 2014, Moore was arrested again because he continued to sell heroin while he was on pretrial release. A federal criminal complaint was subsequently filed in a new case charging Moore with offenses related to his 2014 conduct.
In January 2015, Moore entered into a plea agreement with the government to resolve both cases. Under the agreement, Moore agreed to plead guilty to Count One of the second superseding indictment in the first case-which charged him with conspiracy to possess heroin with the intent to distribute the drug, in violation of 21 U.S.C. §§ 841(a), (b)(1)(C) and 846-in exchange for the government's promise to dismiss (1) the remaining counts of the indictment, and (2) the criminal complaint in the second case. Moore acknowledged that he faced a maximum term of imprisonment of 20 years on Count One, and that he was also subject to an additional term of imprisonment of up to 10 years under 18 U.S.C. § 3147 because he had committed a separate felony offense while on pretrial release. Moreover, Moore “agree[d] that because [he] committed the offense of conspiring to possess with intent to distribute heroin while on release in this case, pursuant to the statutory sentencing enhancement under 18 [ ] U.S.C. [§] 3147, pursuant to U.S.S.G. § 3C1.3 the offense level will be increased by 3 levels.” A magistrate judge conducted a change-of-plea hearing in January 2015, during which Moore pleaded guilty to Count One pursuant to the plea agreement. The government read the above-noted terms of the agreement into the record during the hearing, and Moore confirmed the accuracy of those terms. At the hearing, Moore further admitted “that while on pretrial release . . ., he committed the offense of conspiring to possess with intent to distribute heroin.” The district court subsequently accepted Moore's guilty plea.
B. Sentencing
After the change of plea, the United States Probation Office issued a Presentence Report (PSR) that calculated Moore's Guidelines range as 135 to 168 months of imprisonment. Moore subsequently submitted a sentencing memorandum in which he raised various arguments in favor of an unspecified, below-Guidelines sentence. One of those arguments concerned the need to avoid sentencing disparities between Moore and his codefendants, and between Moore and heroin offenders nationally. The government's initial sentencing memorandum recommended a term of imprisonment of 135 months-the bottom of the applicable Guidelines range. After defense counsel asserted that this recommendation was at odds with their plea negotiations, however, the government submitted an addendum recommending a below-Guidelines sentence of 105 months of imprisonment.
The district court subsequently held a sentencing hearing in June 2015. Neither Moore nor his defense counsel raised any objections during the hearing to anything in the PSR. After adopting the factual findings in the PSR, the court acknowledged Moore's written request for a below-Guidelines sentence. The court also recognized the ...

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