United States v. Moses

• Court: District Court, District of Columbia
• Decided: July 6, 2015
• Docket: Criminal No. 2011-0253
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA,

v. Criminal No. 11-253-01 (CKK) Civil Action No. 13-526 (CKK) ERIC ARTEZ MOSES,

Defendant.

MEMORANDUM OPINION (July 6, 2015)

On February 29, 2012, Eric Artez Moses (“Moses”) pled guilty to one count of possession

with intent to distribute five kilograms of cocaine or more and 280 grams of cocaine base or more,

pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C). Presently before the Court is Moses’

pro se [204] Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence. Upon a

searching review of the parties’ submissions, 1 the relevant authorities, and the record as a whole,

the Court finds no grounds for setting aside Moses’ conviction and sentence at this time.

Accordingly, the Court shall DENY Moses’ [204] Motion Under 28 U.S.C. § 2255 to Vacate, Set

Aside, or Correct Sentence for the reasons described herein.

I. BACKGROUND

On August 11, 2011, a federal grand jury indicted Moses and seven other codefendants in

connection with an alleged conspiracy to distribute cocaine. Indictment (Aug. 11, 2011), ECF No.

1 While the Court renders its decision today on the record as a whole, its consideration has focused on the following documents: Def.’s Mot. to Vacate Sentence (“Def.’s Mot.”), ECF No. [204]; Def.’s Memo. in Support of Mot. to Vacate Sentence (“Def.’s Memo.”), ECF No. [204]; Govt.’s Opp’n to Def.’s Mot. to Vacate Sentence (“Govt.’s Opp’n”), ECF No. [213]; Def.’s Memo. of Law in Support of Def.’s Resp. to the U.S.’s Opp’n to Def.’s 28 U.S.C. 2255 Motion (“Def.’s Reply”), ECF No. [214]; and transcripts of the proceedings. 1 [3]. Pursuant to the indictment, Moses was charged with conspiracy to distribute and possess with

intent to distribute five kilograms or more of cocaine and 280 grams or more of cocaine base (21

U.S.C. § 846), one count of using, carrying, and possessing a firearm during a drug trafficking

offense (18 U.S.C. §§ 2 & 924(c)(1)), and five counts of use of a communication facility (21 U.S.C.

§ 843(b) & 18 U.S.C. § 2). See id. On that same day, Moses was separately charged in a second

case along with three codefendants in connection with an alleged conspiracy to distribute

marijuana. U.S. v. Moses, No. 11-254-01 (CKK), Indictment (Aug. 11, 2011), ECF No. [3].

Specifically, Moses was charged in that case with one count of conspiracy to distribute and possess

with intent to distribute marijuana (21 U.S.C. § 846) and 11 counts of use of a communications

facility (21 U.S.C. § 843(b) & 18 U.S.C. § 2). See id.

On February 29, 2012, pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C), Moses

entered a written plea agreement, in which he agreed to plead guilty to one count of conspiracy to

distribute and possess with intent to distribute five kilograms of cocaine or more and 280 grams

of cocaine base or more in violation of 21 U.S.C. §§ 846, and 841(a)(1) and (b)(1)(A)(ii)-(iii) in

the instant action. See Plea Agreement at 1, ECF No. [74]. Pursuant to the terms of the plea

agreement, the parties agreed that the appropriate sentence of imprisonment should be 144 months

(12 years). Id. at 2. After conducting a plea hearing, the Court accepted the plea agreement and,

on May 23, 2012, the Court sentenced Moses to a term of 144 months imprisonment, with credit

for time served, followed by 60 months of supervised release, and a Special Assessment of $100.

Judgment, ECF No. [137]. As set forth on the record during the plea hearing, the 144-month term

of imprisonment included the mandatory minimum of 120 months for the charged offense, plus

24-month sentence increase for gun possession. See Tr. 4:22—5:1, 57:9-11 (Feb. 29, 2012).

Pursuant to the terms of the plea agreement, the Court dismissed all other charges pending against

2 Moses both in the instant case and in the second case described above. Moses did not appeal his

sentence and conviction, and currently is serving the term of imprisonment.

Pending before the Court is Moses’ Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside,

or Correct Sentence. Moses’ motion is premised on alleged legal errors and factual errors in

calculating his sentence, and on receiving allegedly ineffective assistance from his counsel,

Christopher M. Davis, during the plea bargain and sentencing phases of his case. Specifically,

Moses alleges that: the imposition of the mandatory minimum sentence was an abuse of the Court’s

discretion and otherwise unconstitutional; there was insufficient evidence to support the increase

to his sentence based on gun possession; the drug quantities that provide the basis of his sentence

are in error; and his trial attorney provided ineffective assistance due to these three alleged errors.

II. LEGAL STANDARD

Under 28 U.S.C. § 2255, a prisoner in custody under sentence of a federal court may move

the sentencing court to vacate, set aside, or correct its sentence if the prisoner believes 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 circumstances under which such a motion will be granted, however, are limited in light of the

premium placed on the finality of judgments and the opportunities prisoners have to raise most of

their objections during trial or on direct appeal. “[T]o obtain collateral relief a prisoner must clear

a significantly higher hurdle than would exist on direct appeal.” United States v. Frady, 456 U.S.

152, 166 (1982). Nonetheless, “[u]nless the motion and the files and records of the case

conclusively show that the prisoner is entitled to no relief, the court shall . . . grant a prompt hearing

thereon, determine the issues and make findings of fact and conclusions of law with respect

3 thereto.” 28 U.S.C. § 2255(b).

A prisoner may not raise a claim as part of a collateral attack if that claim could have been

raised on direct appeal, unless he can demonstrate either: (1) “cause” for his failure to do so and

“prejudice” as a result of the alleged violation, or (2) “actual innocence” of the crime of which he

was convicted. Bousley v. United States, 523 U.S. 614, 622 (1998). However, “[w]here a

petitioner raises claims of ineffective assistance of counsel in a § 2255 motion, he need not show

‘cause and prejudice’ for not having raised such claims on direct appeal, as these claims may

properly be raised for the first time in a § 2255 motion.” United States v. Cook, 130 F. Supp. 2d

43, 45 (D.D.C. 2000), aff’d, 22 F. App’x 3 (D.C. Cir. 2001) (citation omitted).

A defendant claiming ineffective assistance of counsel must show (1) “that counsel's

performance fell below an objective standard of reasonableness under prevailing professional

norms,” and (2) “that this error caused [him] prejudice.” United States v. Hurt, 527 F.3d 1347,

1356 (D.C. Cir. 2008) (citation omitted). “Judicial scrutiny of counsel’s performance must be

highly deferential. It is all too tempting for a defendant to second-guess counsel’s assistance after

conviction or adverse sentence.” Strickland v. Washington, 466 U.S. 668, 689 (1984). It is the

petitioner’s burden to show that counsel’s errors were “so serious” that counsel could not be said

to be functioning as the counsel guaranteed by the Sixth Amendment. Harrington v. Richter, 562

U.S. 86, 104 (2011). In evaluating ineffective assistance of counsel claims, the Court must give

consideration to “counsel’s overall performance,” Kimmelman v. Morrison, 477 U.S. 365, 386

(1986), and “indulge a strong presumption that counsel’s conduct falls within the wide range of

reasonable professional assistance.” Strickland, 466 U.S. at 689.

III. DISCUSSION

A district court may deny a Section 2255 motion without a hearing when “the motion and

4 files and records of the case conclusively show that the prisoner is entitled to no relief.” 28 U.S.C.

§ 2255(b). “‘The decision whether to hold a hearing is committed to the district court’s discretion,

particularly when, as here, the judge who is considering the § 2255 motion also presided over the

proceeding in which the petitioner claims to have been prejudiced.’” United States v. Orleans-

Lindsey, 572 F. Supp. 2d 144, 166 (D.D.C. 2008), appeal dismissed, No. 08-3089, 2009 U.S. App.

LEXIS 20833 (D.C. Cir. Sept. 18, 2009) (quoting Fears v. United States, No. Civ. A. 06-0086

(JDB), 2006 WL 763080, at *2 (D.D.C. Mar. 24, 2006) (citations omitted)); see also United States

v. Agramonte, 366 F. Supp. 2d 83, 85 (D.D.C. 2005), aff’d, 304 Fed. App’x 877 (D.C. Cir. 2008).

“The judge’s own recollection of the events at issue may enable him summarily to deny a Section

2255 motion.” Agramonte, 366 F. Supp. 2d at 85 (citing United States v. Pollard, 959 F.2d 1011,

1031 (D.C. Cir. 1992), cert. denied, 506 U.S. 915 (1992)). To warrant a hearing, the petitioner’s

Section 2255 motion must “raise[] ‘detailed and specific’ factual allegations whose resolution

requires information outside of the record or the judge’s ‘personal knowledge or recollection.’”

Pollard, 959 F.2d at 1031 (quoting Machibroda v. United States, 368 U.S. 487, 495 (1962)).

Based on a thorough review of the parties’ pleadings and the entire record in the criminal

proceeding, the Court finds that there is no need for an evidentiary hearing on the instant motion.

As explained below, Moses has not proffered detailed and factual allegations outside of the record

such that a hearing is required on the issues raised in his motion. Accordingly, the Court shall

render its findings based on the parties’ pleadings and the record.

Specifically, Moses raises four claims: the imposition of the mandatory minimum sentence

was an abuse of the Court’s discretion and otherwise unconstitutional; there was insufficient

evidence to support the increase to his sentence based on gun possession; the drug quantities that

provide the basis of his sentence are in error; and his trial attorney provided ineffective assistance

5 during the plea bargain and sentencing due to these three alleged errors. The Court shall address

each of the first three claims in turn and examine the impact of each claim on the ineffective

assistance of counsel argument. 2

A. Mandatory Minimum Sentence

Moses was sentenced pursuant to 21 U.S.C. § 841(b)(1)(A)(ii) and (iii), which provides

that a defendant who is found guilty of possession with intent to distribute five kilograms of

cocaine or more and 280 grams of cocaine base or more “shall be sentenced to a term of

imprisonment which may not be less than 10 years or more than life . . . .” 21 U.S.C. § 841(b). In

the instant motion, Moses alleges that the mandatory minimum sentence of 120 months that he is

serving was improperly determined and, moreover, is unconstitutional. Def.’s Memo. at 4-15;

Def.’s Reply at 5-6. Specifically, Moses appears to raise two arguments related to the 120-month

mandatory minimum. First, Moses alleges that the mandatory minimum sentence was improperly

imposed because the issue was not submitted to a jury. Second, Moses asserts that statutory

mandatory minimum sentences are unconstitutional. In contrast, the Government argues that the

mandatory minimum sentence was properly applied to Moses and that Moses’ constitutional

challenge is without merit in light of the fact that both the Supreme Court of the United States and

the United States Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”) have held

determinate sentences to be constitutional. Govt.’s Opp’n at 2-3. The Court finds that the

mandatory minimum sentence was properly imposed on Moses following the Court’s acceptance

of the parties’ plea agreement. Further, the Court finds that Moses’ argument regarding the

unconstitutionality of the mandatory minimum sentence fails as a matter of law. Moreover, to the

2 Moses asserts an ineffective assistance of counsel claim with little specificity. As Moses proceeds pro se, the Court shall liberally construe the ineffective assistance of counsel claim. See United States v. Henry, 20 F. Supp. 3d 278, 281 (D.D.C. 2014). 6 extent that Moses is alleging that his counsel was ineffective for failing to explain the mandatory

minimum sentence to him, the Court finds that this argument is without merit because it is clear

from the record that Moses understood that he was subject to a 120-month mandatory minimum

at the time he entered his guilty plea and that his plea covered all the requisite elements to subject

him to the mandatory minimum sentence.

Turning first to Moses’ argument regarding the alleged requirement that the issue of the

mandatory minimum sentence be submitted to the jury, Moses cites Alleyne v. United States, --

U.S. --, --, 133 S. Ct. 2151, 2155 (2013), in support of this argument. The Court first notes that

Alleyne was decided after Moses was sentenced. Nonetheless, for the reasons described, the Court

finds that Alleyne is not an intervening change in law relevant to Moses’ claims.

In Alleyne, the Supreme Court held that any fact that increases the mandatory minimum is

an element of the crime and, as such, must be submitted to the jury and found beyond a reasonable

doubt, as opposed to a sentencing factor considered by the judge. Here, unlike in Alleyne, Moses

waived his right to a trial by jury and entered a guilty plea. In the context of a guilty plea, an

element enhancing a sentence, such as the drug quantities in this case, must be admitted by the

defendant through plea or otherwise. As discussed further infra, Moses accepted responsibility

during his plea for the requisite quantity of drugs in order to be sentenced to the mandatory

minimum of 10 years pursuant to 21 U.S.C. § 841(b). Waiver of Trial by Jury, ECF No. [72]; Tr.

11:19-25 (Feb. 29, 2012) (explaining that “unless amd until [the Court] accept[s] your guilty plea,

you are presumed by the law to be innocent because it’s the Government’s burden to prove your

guilt beyond a reasonable doubt, and until it does you can’t be convicted at trial”); id. at 35:21—

36:16 (explaining to Moses that he is subject to a mandatory minimum term of imprisonment of

ten years under the statute). Accordingly, the Court finds this argument is without merit.

7 Moses next raises a general challenge to the constitutionality of mandatory minimum

sentences, arguing that they prevent the imposition of individual sentences, violate principles of

proportionality, remove judicial discretion in sentencing, encroach on his right to equal protection,

flout the separation of powers, constitute cruel and unusual punishment, and are generally

inequitable and unjust. 3 Def.’s Memo. at 4-15. The Supreme Court has acknowledged arguments

against the wisdom of mandatory minimum sentences, while still holding them to be constitutional.

See Harris v. United States, 536 U.S. 545, 568-569 (2002), rev’d on other grounds, Alleyne, 133

S. Ct. 2151; see also Harmelin v. Michigan, 501 U.S. 957, 994 (1991) (holding that mandatory life

imprisonment without an individualized determination that the sentence was appropriate was not

cruel and unusual under the Eighth Amendment). The D.C. Circuit has similarly rejected claims

that mandatory minimums are unlawful. United States v. Cook, 594 F.3d 883, 890 (D.C. Cir.

2010); United States v. Brown, 859 F.2d 974, 977 (D.C. Cir. 1988).

Finally, the Court turns to Moses’ argument that his trial counsel rendered him ineffective

assistance by failing to object to the imposition of the mandatory minimum sentence for the reasons

described above. Here, the Court finds this argument is without merit because Moses has not

established that his counsel’s performance fell below an objective standard of reasonableness or

that he was prejudiced by counsel’s failure to raise either of these arguments. See Strickland, 466

U.S. at 689. Indeed, as discussed above and further infra, it is clear from the record that Moses

was properly sentenced to the mandatory minimum after he waived his right to trial and entered

into a plea agreement that included all the requisite elements to convict Moses pursuant to 21

3 To the extent that Moses argues that the Court imposed a sentence including the mandatory minimum, without considering the factors set forth in 18 U.S.C. § 3553(a), this contention is directly contradicted by the record at the sentencing hearing. Tr. 17:2-9 (May 23, 2013). 8 U.S.C. §§ 846 and 841(a)(1) and (b)(1)(A)(ii)-(iii). Further, an ineffective assistance claim

premised on Moses’ trial counsel’s failure to object to the overall constitutionality of mandatory

minimum sentences similarly fails. Given that mandatory minimum sentences have been held to

be constitutional, his counsel did not act unreasonably in failing to object when a question of law

is settled. See U.S. v. Williams, 488 F.3d 1004, 1010 (D.C. Cir. 2007), cert. denied 552 U.S. 939

(2007) (holding that counsel’s failure to object to conviction counting as “serious drug offense”

was not unreasonable when the question was settled law in the circuit). Accordingly, the Court

finds no basis to set aside or vacate Moses’ sentence based on the alleged improper imposition of

a mandatory minimum sentence or based on the related ineffective assistance of counsel claims.

B. Drug Quantities

Moses next challenges his 144-month sentence based in part on the drug quantities to which

he was found accountable. 4 Def.’s Memo. at 17. Pursuant to 21 U.S.C. § 841(b)(1)(A)(ii) and

(iii), a defendant who possesses with the intent to distribute 5 kilograms or more of a mixture or

substance containing a detectable amount of cocaine, or 280 grams or more of a mixture or

substance which contains cocaine base, is subject to a mandatory minimum sentence of 10 years

imprisonment. In the instant motion, Moses argues that the sentence is improper because it was

“founded upon 5 kilograms of cocaine and 280 grams of cocaine base,” and appears to generally

call into question the calculation of those amounts. 5 Id. However, during the plea hearing, Moses

4 The Court notes that Moses did not discuss the drug quantity in his reply brief and, accordingly, it is unclear to the Court whether he abandoned his argument with relation to this issue. Nonetheless, in an abundance of caution, the Court shall address this argument. 5 Moses also argues in his motion that “[t]he court was required to convert the drug to the equivalent weight in marijuana.” Def.’s Memo. at 18. In calculating his base level offense, the Presentence Investigation Report reflects that the drug quantities were converted to the marijuana equivalency in order to calculate the advisory sentencing guideline range in this case. Presentence Investigation Report ¶ 37, ECF No. [100]. However, Moses was sentenced to the statutory mandatory minimum, not to a mandatory minimum based on the advisory sentencing guidelines. 9 admitted to possessing at least fifteen kilograms of cocaine and the Court noted the impact on his

sentence:

THE COURT: We’re now moving to Paragraph 2, which is that you’re agreeing to – that you’re accountable – in other words, you’re responsible in terms of – from your own conduct to 15 kilograms but less than 50 kilograms of cocaine.

And this is important in the context of at least the advisory sentencing guidelines. And this would represent the total amount of controlled substance involved in your relevant conduct, including amounts you distributed or possessed with the intent to distribute, and amounts that the co-conspirators did in this jointly undertaking [sic] criminal activity. That you would have foreseen and would have been within the scope of the conspiracy.

Do you understand and agree?

THE DEFENDANT: Yes.

Tr. 37:19-38:7 (Feb. 29, 2012) (emphasis added). Further, the Court confirmed the requisite

quantities with Moses during the plea hearing:

THE COURT: Okay. That’s what I was getting at. You’re agreeing that the conspiracy, the agreement between you and the others that were involved in the selling of the cocaine, that you trafficked, in order words, that you sold or possessed with the intention of selling, 5 kilograms or more of powder cocaine, and 280 grams or more of crack cocaine?

THE DEFENDANT: Yes, ma’am.

Id. at 30:1-7 (emphasis added). Given that Moses admitted to possessing a far greater quantity of

cocaine than the five kilograms required for the mandatory minimum sentence and 280 grams or

more of crack cocaine, the Court finds Moses’ claim that he was improperly sentenced to the 10-

year mandatory minimum on the basis of these quantities to be without merit. 6

6 Moses claims that the 280 grams of cocaine base should have been calculated as 50.4 grams under the Fair Sentencing Act (FSA), 124 Stat. 2372 (2010). Def.’s Memo. at 17. While Moses is correct that the calculation of his drug quantities must be calculated under the Fair Sentencing Act which was effective August 3, 2010, both before the relevant criminal conduct in this matter occurred and before sentencing, the record reflects that Moses was sentenced based on the statute as amended by the FSA. See Indictment (Aug. 11, 2011), at 1 (indicating that the 10 Further, the record also reflects that the Court explained the sentencing consequences of

pleading guilty to this conduct during the plea hearing:

THE COURT: So, the first thing we – the letter indicated that you’re pleading guilty to Count 1 in 11-253, and that’s the conspiracy to distribute and possession with intent to distribute 5 kilograms or more of cocaine, powder cocaine, and 280 grams or more of cocaine base or crack cocaine.

The statutory penalties and the importance of this is that the Court can never sentence you to more than that, but also it sets out – may set out some perimeters or requirements that the Court needs to follow in sentencing you. But that charge carries with it a mandatory minimum of 10 years and a maximum of life.

Now, a mandatory minimum, the Court, unless there’s some other way of getting out of the mandatory minimum, which I don’t believe applies in your particular case, that the mandatory minute [sic] number means I have to sentence you to that. So, I would not be in a position to sentence you to less than 10 years, which is 120 months.

...

Do you understand so far?

Id. at 35:16—37:16 (emphasis added). The record reflects both that Moses accepted responsibility

for the requisite amount of drugs as part of his plea agreement and that he understood that he was

subject to a mandatory minimum sentence of 10 years as a result. Accordingly, the Court finds

conspiracy to distribute and possess charge arose out of conduct “[f]rom on or about September 2010, the exact date being unknown to the Grand Jury, and continuing thereafter up to and including August 11, 2011 . . .”). Indeed, “[t]he [Fair Sentencing] Act increased the drug amounts triggering mandatory minimums for crack trafficking offenses from 5 grams to 28 grams in respect to the 5-year minimum and from 50 grams to 280 grams in respect to the 10-year minimum (while leaving powder at 500 grams and 5,000 grams respectively).” See Dorsey v. United States, -- U.S. --, --, 132 S. Ct. 2321, 2329 (2012) (emphasis added). Here, the record reflects that Moses was sentenced to the 10-year mandatory minimum under the revised provisions of the FSA, after he admitted to the requisite quantity of 5 kilograms or more of cocaine and 280 grams or more of cocaine base, in the form of crack cocaine, as part of his plea agreement. See Factual Proffer at 4. Indeed, the “18-to-1” ratio for crack cocaine offenses referenced by Moses in his motion is reflected in the statute as amended by the FSA and as applied to him. 11 that the imposition of this sentence based on the drug quantities was proper.

To the extent that Moses raises this argument as the basis for an ineffective assistance of

counsel claim, the Court similarly finds this argument is without merit. The standard for evaluating

counsel remains the same in the plea negotiation stage as at trial: reasonable competence. Premo

v. Moore, 562 U.S. 115, 126 (2011). Moreover, “[t]he defendant must show that there is a

reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding

would have been different. A reasonable probability is a probability sufficient to undermine

confidence in the outcome.” Strickland, 466 U.S. at 694. Specifically, “in order to satisfy the

‘prejudice’ requirement, the defendant must show that there is a reasonable probability that, but

for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.”

Hill v. Lockhart, 474 U.S. 52, 59 (1985).

Here, Moses cannot establish that his counsel’s performance was deficient because it is

clear that Moses accepted responsibility for the requisite amount of drugs under the statute and

that the sentencing implications were explained to him prior to accepting the plea offer. Further,

Moses cannot demonstrate that he was prejudiced by any alleged failure on the part of his counsel

to object to the drug quantities because he has not asserted that he would have otherwise rejected

the plea offer. Accordingly, the Court concludes that Moses’ claim that he was improperly

sentenced based on the drug quantities and his related ineffective assistance of counsel claim are

without merit.

C. Gun Possession Enhancement

In calculating the sentencing guideline range for a defendant who is convicted of violating

21 U.S.C. §§ 846, and 841(a)(1) and (b)(1)(A)(ii) and (iii), the offense level is increased by two

levels if a dangerous weapon is possessed pursuant to U.S.S.G. § 2D1.1(b)(1) (2011). Here,

12 Moses, who was subject to that two-level increase, argues that there was insufficient evidence to

support the gun possession enhancement to his sentence. Def.’s Memo. at 16-17. Moses claims

that “the enhancement was founded upon a telephone conversation” in which Moses instructs a

housemate to hide his firearm. Def.’s Memo. at 16; see also Factual Proffer at 3-4. The

Government argues that the record, including the information set forth at the plea hearing,

establishes sufficient grounds for the increase based on gun possession. Govt.’s Opp’n at 3-4.

The Factual Proffer related to the plea agreement, which Moses signed, states that Moses

“carried, possessed, and used [a] firearm in furtherance of the drug trafficking conspiracy.”

Factual Proffer at 3. At the plea hearing, the prosecutor read from the Proffer stating: “Mr. Moses

acknowledges and admits that during the course of the cocaine trafficking conspiracy that is

charged in Count 1 of the indictment, he carried, possessed, and used this firearm in furtherance

of the drug trafficking conspiracy.” Tr. 18:5-18:9 (Feb. 29, 2012); see also Factual Proffer at 3-4.

Immediately following the summary of the proffer, the Court inquired:

THE COURT: Mr. Moses, if you could come back up. Do you have [the Proffer] in front of you? It makes it easier to go over it. Mr. Moses, let me just ask you generally, do you agree with it? Is there anything you don’t agree with?

THE DEFENDANT: Yes, I agree with it.

Tr. 21:10-21:15 (Feb. 29, 2012). The Court went on to question Moses:

THE COURT: And do you agree and admit that during the course of your cocaine trafficking conspiracy, in other words, your selling of the cocaine, that you carried, possessed and used this firearm in furtherance of the drug trafficking conspiracy?

THE COURT: And the firearms was capable of expelling a projectile? In other words, it worked?

THE COURT: And was this gun in the context to be used for protection in terms

13 of the drug trafficking? I mean, was that the purpose of your having it?

THE DEFENDANT: No, it was in the home. 7

THE COURT: Well, when it was used in furtherance of the drug trafficking conspiracy, I take it that it was to protect the drugs. Is that correct?

Id. at 29:9-25. As Moses acknowledged carrying, possessing, and using a firearm “to protect the

drugs,” the Court finds sufficient evidence to support the sentence increase for gun possession.

Moses, in his reply brief, claims that his understanding of the plea agreement was unclear

because during the plea hearing, the Court stated that “what’s going to be dismissed as part of the

plea is Count 4, the using, carry and possession of a firearm during a drug trafficking offense.”

Def.’s Reply at 2 (quoting Tr. 7:11-13 (Feb. 29, 2012)). However, a review of the full record

demonstrates that the Court was discussing dismissing Count 4 of the indictment, a count charging

Moses with using, carrying, and possessing a firearm during a drug trafficking offense in violation

of 18 U.S.C. § 924(c). With respect to the sentence increase based on the gun possession, the

Court inquired of Moses whether he had any additional questions for the Court. After Moses

indicated he did and the Court allowed Moses an opportunity to speak with his counsel, the Court

clarified that Moses was subject to a sentence increase due to the gun possession even though the

§ 924(c) charge was being dismissed:

MR. DAVIS [defense counsel]: The question is: If the gun is being dismissed in the 924(c) count, how does he still get excluded from the safety valve if they’re dismissing it. And I’ve explained that it counts because he’s going to receive the 2 point bump in his drug calculation for the gun.

THE COURT: Because you agreed as part of your factual proffer that you had a gun that was possessed in connection with your – or in furtherance of the drug

7 The Court notes that Moses in his reply brief cites to the transcript only up to this point. Def.’s Reply at 3. However, a review of the full record demonstrates that after this point Moses did in fact agree that he used the firearm “to protect the drugs.” 14 trafficking offense. And that you had it for protection for the drugs.

So, in other words, the safety valve is a statutory thing, but it’s also part of the calculation of the sentencing guidelines. If a gun in involved, it excludes you from being able to be considered under the safety valve.

THE DEFENDANT: Okay.

THE COURT: Even though they are dismissing the count. So, the count would have had, in addition, a five-year consecutive sentence mandatory minimum. So, that’s gone. But it’s [sic] still affects the fact that you wouldn’t be eligible for the safety valve.

Do you understand?

THE COURT: So, Mr. Moses how, do you plead to Count 1 in 11-cr-253, conspiracy to distribute and possession with intent to distribute 5 kilograms or more of powder cocaine and 280 grams or more of cocaine base or crack cocaine?

THE DEFENDANT: Guilty.

Id. at 57:7—58:9. Given that Moses agreed to the terms of his sentence as part of his plea deal

under Rule 11(c)(1)(C) and given that the record reflects an understanding of the impact of the gun

possession on his sentence, the Court finds the sentence increase based on Moses’ gun possession

was not in error.

To the extent that Moses raises the gun possession increase as a basis for an ineffective

assistance of counsel claim, the Court finds this claim without merit. To succeed on an ineffective

assistance of counsel claim, Moses must show that “counsel’s performance fell below an objective

standard of reasonableness under prevailing professional norms, and that this error caused

prejudice.” Hurt, 527 F.3d at 1356. “[W]hen evaluating the petitioner’s claim that ineffective

assistance led to the improvident acceptance of a guilty plea, the Court required the petitioner to

show ‘that there is a reasonable probability that, but for counsel’s errors, [the defendant] would

not have pleaded guilty and would have insisted on going to trial.’” Lafler v. Cooper, -- U.S. --,

15 --, 132 S. Ct. 1376, 1384-85 (2012) (quoting Hill, 474 U.S. at 59). Here, Moses cannot establish

that his counsel’s performance was deficient because, as discussed above, the record clearly

reflects that Moses was informed about the two-level increase both by his counsel and by the Court

prior to accepting the plea offer.

Further, the Court cannot conclude that Moses was prejudiced by this alleged failure.

While Moses asserts that he is prejudiced by the application of the two-level increase because he

argues it was inapplicable to him, the Court has found that the factual proffer underlying Moses’

plea agreement as well as his acceptance of guilt on the record formed a sufficient basis for the

two-level increase. Moreover, with respect to the ineffective assistance of counsel claim, Moses

never asserts that he would not have accepted the plea offer if he had understood this was the basis

for calculating the sentence despite the fact that the record reflects that this information was

imparted to him. As such, Moses has failed to establish prejudice under the Strickland standard.

Accordingly, the Court finds that Moses’ objection to the two-level sentence increase based on

gun possession and his related ineffective assistance of counsel claim fail and do not provide a

basis for the Court to set aside his sentence or conviction.

D. Certificate of Appealability

When the district court enters a final order resolving a petition under 28 U.S.C. § 2255 that

is adverse to the petitioner, it must either issue or deny a certificate of appealability. Rules

Governing Section 2255 Proceedings for the United States District Courts, Rule 11(a). By statute,

“[a] certificate of appealability may issue . . . only if the applicant has made a substantial showing

of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Such a showing demands that

Moses demonstrate that “reasonable jurists could debate whether . . . the petition should have been

resolved in a different manner or that the issues presented were ‘adequate to deserve

16 encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting

Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 (1983)). For the reasons set forth above, the Court

concludes that Moses has failed to make that showing in this case, and, accordingly, no certificate

of appealability shall issue from this Court. To the extent Moses intends to file an appeal, he must

seek a Certificate of Appealability from the United States Court of Appeals for the District of

Columbia Circuit in accordance with Federal Rule of Appellate Procedure 22(b).

IV. CONCLUSION

For the foregoing reasons, the Court finds no reason to set aside Moses’ conviction or

sentence at this time. Accordingly, Moses’ [204] Motion Under 28 U.S.C. § 2255 to Vacate, Set

Aside, or Correct Sentence is DENIED. To the extent Moses intends to file an appeal, he must

seek a Certificate of Appealability from the United States Court of Appeals for the District of

Columbia Circuit in accordance with Federal Rule of Appellate Procedure 22.

An appropriate Order accompanies this Memorandum Opinion.

This is a final, appealable order.

/s/__________________________ COLLEEN KOLLAR-KOTELLY UNITED STATES DISTRICT JUDGE