United States v. Ingram ( 2012 )

IJNITE» STATES I)ISTR!CT CoURT __
FoR THE 1)1sTR1CT oF coLUMB1A Df:C - 4 2012
Clerk, U.S. District & Bankrtrptcy
l Courts for the District ot Columbia
UNITED STATES OF AMERICA )
)
)
v. ) Criminal Action No. 06-21-02 (RBW)
) Civil Action No. ll-2l6l (RBW)
)
RALPH BERNARD INGRAl\/I, )
)
Defendant. )
g
MEMORANDUM OPINION
Ralph Bernard Ingram, the defendant in this criminal case, pleaded guilty to one count of
C0nspiracy to Distribute and Possess with lntent to Distribute Heroin, Cocaine, Cocaine Base,
Phencyclidine ("PCP"), and Marijuana, in violation of 21 U.S.C. § 846 (2006). ECF No. 182 at
l. The Court then sentenced him to thirteen years’ imprisonment and five years’ supervised
release. ECF No. 210 at 2-3. Currently before the Court is Ingram’s Motion under 28 U.S.C. §
2255(f)(3) to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody ("Def.’s
Mot."), which the government opposes, § United States’ Opposition to Defendant’s l\/Iotion
under 28 U.S.C. § 2255(f)(3) to Vacate, Set Aside, or Correct Sentence by a Person in Federal
Custody ("Gov’t’s Opp’n"). Upon careful consideration of the parties’ submissions and the
entire record in this case, the Court concludes for the following reasons that lngram’s motion
must be denied.
I. BACKGROUND
Ingram was arrested on January 26, 2006, during the execution of a search warrant at an
apartment located in Washington, D.C. Gov’t’s Opp’n at 4. As a result of this search, agents
with the F ederal Bureau of lnvestigation ("FBI") recovered "over 50 grams of cocaine base
(crack), cocaine, heroin, scales, crack cocaine residue, and tirearms." § The FBl agents found
over 80 bags of crack on lngram’s person. § Ingram also had in his possession a key to a
minivan that the FBI later discovered contained "illegal contraband and narcotics trafficking
paraphernalia." li
On August 23, 2006, Ingram was charged in a Superseding Indictment, along with seven
other named defendants, with one count of Conspiracy to Distribute and Possess With lntent to
Distribute Heroin, Cocaine, Cocaine Base, Phencyclidine and Cannabis, in violation of 21 U.S.C.
§ 846 occurring from 2002 to January 2006 in the District of Columbia, Maryland, Virginia,
California, and elsewhere. §e_; ECF No. 30. Ingram and the government subsequently entered
into a plea agreement, pursuant to Federal Rule of Criminal Proeedure ll(c)(l )(C), which
provided for a stipulated period of incarceration of thirteen years (156 months). ECF No. 182 at
2. On April 29, 2008, Ingram pleaded guilty to Count One of the Superseding Indictment. lgi_. at
1.
The Presentence Investigation Report ("PSI Report") calculated lngram’s base offense
level at 34 based on the quantity of drugs he possessed, added two points for the possession of
firearms, and deducted three points for acceptance of responsibility, resulting in a total offense
level of 33. _S_e_§ PSI Report at 8. The PSI Report accorded Ingram a criminal history category of
IV because (1) he had three prior convictions (two drug offenses and one attempted robbery
offense), resulting in a subtotal criminal history score of 6; (2) he was under supervised release at
the time he committed the offense in this case, which added two points to his criminal history
category; and (3) he committed the offense in this case less than two years after his release from
imprisonment, which added one point to his criminal history category. g §§ at 10-l4.
lngram’s total criminal history score of 9 established a criminal history category IV under the
then-applicable Sentencing Guidelines ("Guidelines"). lgl_. at 14. With a total offense level of 33
and a criminal history category of IV, lngram’s Guideline range was 188 to 235 months’
incarceration. I;d. at 26.
On July 17, 2008, the Court sentenced Ingram to thirteen years’ (156 months)
imprisonment and five years’ supervised release. § ECF Nos. 210, 211. Although the Court
adopted the PSI Report’s findings without change, it departed from the Guideline range of 188 to
235 months’ incarceration and instead sentenced Ingram in accordance with the parties’ Rule
1 l(c)(l )(C) plea agreement. ECF No. 211 at 1-2. Ingram did not appeal his conviction and
sentence.
In November 2011, the United States Sentencing Commission promulgated Amcndmcnt
750 to the Guidelines. Among other things, Amendment 750 lowered the base offense levels for
crack cocaine offenses. §§ U.S.S.G. app. C, amend. 750 (Nov. 2011); § U.S.S.G. §
2D1.1(c)(3) (Nov. 2011). The Sentencing Commission agreed that this part of Amendment 750
would become retroactive effective November l, 201 1. § U.S.S.G. § 1B1.10(c).
Ingram has now moved to vacate, set aside, or correct his sentence. Liberally construing
his _1@ § motion, Ingram appears to assert that he is entitled to post-conviction relief on two
grounds: (l) his sentence was unlawfully enhanced based on his prior felony drug convictions,
and (2) his sentence should be reduced based on Amendment 750. _S_e_e_: Def.’s Mot. at 5-12.
II. ANALYSIS
A. Timeliness of lngram’s Unlawful Sentence Enhancement Claim
The Court construes lngram’s unlawful sentence enhancement claim as being asserted
pursuant to 28 U.S.C. § 2255, which permits a person in custody under sentence by a federal
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court to "move the court which imposed the sentence to vacate, set aside or correct the sentence,’
on the grounds that "the sentence was imposed in violation of the Constitution or laws of the
United States, . . . 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). If the reviewing court finds that any of these grounds exist, it
"shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or
grant a new trial or correct the sentence as may appear appropriate." g § 2255(b).
"28 U.S.C. § 2255(f) sets a one-year limitation for filing a motion pursuant to this section
and establishes that the limitation will run from the latest of four enumerated circumstances."
United States v. l\/IcDade, _ F.3d __, __, 2012 WL 5457675, at *4 (D.C. Cir. 2012).
Specitically, the statute provides that:
The limitation period shall run from the latest of-
(l) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created by
governmental action in violation of the Constitution or laws of the United States
is removed, if the movant was prevented from making a motion by such
governmental action;
(3) the date on which the right asserted was initially recognized by the Supreme
Court, if that right has been newly recognized by the Supreme Court and made
retroactively applicable to cases on collateral review; or
(4) the date on which the facts supporting the claim or claims presented could
have been discovered through the exercise of due diligence.
28 U.S.C. § 22550).
"ln most cases, the operative date from which the limitation period is measured will be
the one identified in [§ 2255(D(1)]; ‘the date on which the judgment of conviction becomes
final."’ Dodd v. United States, 545 U.S. 353, 357 (2005) (citation omitted). In this case, there is
no dispute that Ingram filed his motion more than one year after this Court’s judgment became
final. Where, as here, "a federal criminal defendant does not appeal to the court of appeals, the
judgment becomes final upon the expiration of the period in which the defendant could have
appealed to the court of appeals." Sanchez-Castellano v. United States, 358 F.3d 424, 427 (6th
Cir. 2004); accord Murphv v. United States, 634 F.3d 1303, 1307 (l1th Cir. 2011); United States
v. Plascencia, 537 F.3d 385, 388 (5th Cir. 2008); United States v. Prows, 448 F.3d 1223, 1227-
28 (10th Cir. 2006); Moshier v. United States, 402 F.3d 116, 118 (2d Cir. 2005); Kapral v.
United States, 166 F.3d 565, 577 (3d Cir. 1999); c_f. Clay v. United States, 537 U.S. 522, 527
(2003) ("Finality attaches when this Court affirms a conviction on the merits on direct review or
denies a petition for a writ of certiorari, or when the time for filing a certiorari petition expires.").
This Court entered judgment on July 28, 2008. §_e§ ECF No. 210. Under the then-applicable
version of the F ederal Rules of Appellate Procedure, Ingram had ten days to file an appeal, i.e.,
until August 7, 2008. § Fed. R. App. P. 4(b)(1)(A) (2005).' He filed no appeal, so his
conviction became "final" on August 7, 2008. Applying § 2255(f)’s one-year limitation period,
Ingram had until August 7, 2009, to file his motion. But Ingram filed his motion on November
28, 2011, §§ Def.’s Mot. at 1, more than two years after this deadline. Accordingly, lngram’s §
2255 motion must be deemed untimely if the one-year limitation period began to run on "the date
on which the judgment of conviction [became] final." 28 U.S.C. § 2255(f)(1).
Recognizing this obstacle, Ingram invokes an alternative trigger to § 2255’s one-year
statute of limitations, _s__e§ Def.’s Mot. at 12, which provides that the limitation period begins to
run on "the date on which the right asserted was initially recognized by the Supreme Court, if
that right has been newly recognized by the Supreme Court and made retroactively applicable to
cases on collateral review," 28 U.S.C. § 2255(f)(3). Ingram asserts that his motion is timely
under § 2255(D(3) in light of intervening case law limiting the circumstances under which a
l Under the current rules, a defendant has fourteen days to appeal § Fed. R. App. P. (4)(b)(1)(A) (201 1).
sentence may be enhanced under 21 U.S.C. § 841(b)(1) based on prior felony drug convictions.
§ Def.’s Mot. at 12. Ingram identifies the Fourth Circuit’s panel decision in United States v.
Simmons, 635 F.3d 140 (4th Cir. 2010), as the source of his purported "newly recognized" right.
Def.’s Mot. at l. However, the government asserts, and the Court agrees, that lngram’s claim is
more accurately supported by Carachuri-Rosendo v. Holder, _ U.S. _, 130 S. Ct. 2577 (2010),
and the en banc decision of the Fourth Circuit in United States v, Simmons, 649 F.3d 237 (4th
Cir. 2011), which vacated the panel decision upon which Ingram relies.
The defendant in Simmons pleaded guilty to drug trafficking in federal court and was
subjected to a sentencing enhancement pursuant to 21 U.S.C. § 841(b)(1) because the district
court found that his prior state conviction for marijuana possession was a "‘felony drug offense’
for purposes of applying the mandatory minimum sentences authorized in 21 U.S.C. §
841(b)(1)(D)." United States v. Simmons, 340 F. App’x 141, 142 (4th Cir. 2009). The Fourth
Circuit affirmed the district court’s judgment, @, but the Supreme Court, in a brief
memorandum decision, vacated that judgment and remanded the case to the Fourth Circuit "for
further consideration in light of Carachuri . . . ," Simmons v. United States, _ U.S. __, 130 S.
Ct. 3455 (2010). ln Carachuri, the Supreme Court held that the question of whether a prior
conviction is an "aggravated felony" within the meaning of the lmmigration and Nationality Act
must be resolved by looking at the offense for which the defendant was ac_tii.ajy convicted, not
the offense for which he could have been convicted based on his conduct. g _ U.S. at __,
1380 S. Ct. at 2580 (quoting 8 U.S.C. § 1229b(a)(3)). Following the Supreme Court’s remand of
Simmons, a panel of the Fourth Circuit held that Carachuri did not require any change in the
court’s prior holding. § Simmons, 635 F.3d at 145. However, after granting rehearing en
banc, the Fourth Circuit reversed the panel decision. Simmons, 649 F.3d at 239. The en banc
court "he1d that, in deciding whether to enhance federal sentences based on prior North Carolina
convictions," courts must look "not to the maximum sentence that North Carolina courts could
have imposed for a hypothetical defendant who was guilty of an aggravated offense or had a
prior criminal record, but rather to the maximum sentence that could have been imposed on a
person with the defendant’s actual level of aggravation and criminal history." United States v.
_I_’Ml_l, 691 F.3d 554, 556 (4th Cir. 2012) (citing Simmons, 649 F.3d at 241).
Relying on Carachuri and Simmons, Ingram contends that this Court unlawfully
enhanced his sentence under 21 U.S.C. § 841(b)(1) by relying on prior convictions for which he
received "a sentence of less than one year imprisonment." Def.’s Mot. at 12. He further asserts
that his motion is timely under § 2255(f)(3) because Carachuri and Simmons were decided after
the judgment became final in this case. S_e_e_ i_d_. The Court finds lngram’s position unpersuasive
for several reasons.
First, contrary to lngram’s assertion, his sentence was not enhanced under 21 U.S.C. §
84l(b)(1) based on his prior convictions. Under 21 U.S.C. § 851(a)(1), "[a] judge may not
impose an enhanced penalty [under § 841(b)(l)] unless before trial-or before a guilty plea-the
prosecutor files an information stating in writing the previous convictions forming the basis for
the enhancement." United States v. Vanness, 85 1*``.3d 661, 663 (D.C. Cir. 1996) (citing 21
U.S.C. § 851(a)(l)). ln other words, "[a] prosecutor’s compliance with § 851(a)(1) is . . . a
necessary condition to a judge’s imposing an enhanced sentence on the basis of a defendant’s
prior convictions." l_d. at 663 n.2. Here, the government did not file a § 851(a)(1) information,
and the Court consequently did not impose an enhanced sentence upon Ingram based on his prior
convictions, The Court instead sentenced Ingram in accordance with the plea agreement he
reached with the government, which did not seek to enhance lngram’s sentence under §
84l(b)(1) based on his prior convictions. §_e_e_ ECF Nos. 182, 211.
Second, even if lngram’s sentence had been enhanced under § 841(b)(1), his motion
challenging that enhancement is not timely under § 2255(f)(3). To qualify as timely under §
2255(f)(3), a motion must be filed within one year of "the date on which the right asserted was
initially recognized by the Supreme Court." 28 U.S.C. § 2255(1)(3) (emphasis added); segall
Do_dd, 545 U.S. at 358-59 (Under § 2255(f)(3), "if this Court decides a case recognizing a new
right, a federal prisoner seeking to assert that right will have one year from this Court’s decision
within which to file his § 2255 m0tion." (emphasis added)). Thus, the accrual date for lngram’s
motion must be measured by the Supreme Court decision that initially recognized the right
asserted in his motion. And the only decision conceivably fitting this description is Carachuri,
which the Supreme Court issued on June 14, 2010. Because Ingram filed his § 2255 motion on
November 28, 2011, g Def.’s Mot. at 1, more than a year after Carachuri, his motion is not
timely under § 2255(@(3).
Third, even assuming that lngram’s sentence had been enhanced under § 841(b)(1) g
he filed his motion within one year of Carachuri, the motion still would not satisfy § 2255(f)(3),
because Ingram has not shown that his motion asserts a "right . . . made retroactively applicable
to cases on collateral review." 28 U.S.C. § 2255(f)(3). Ingram has offered no argument on this
issue, and several federal courts have held that Carachuri is not retroactively applicable to cases
on collateral review. _S_g._;g_., @_v@, 691 F.3d at 560; Shaeffer v. United States, No. 1 1-cv-
155, 2012 WL 1598061. at *3 (E.D. Tenn. 1\/lay 7, 2012)(eol1ecting cases); Bogardus v. United
_S_tam_s, No. 110-155, 2012 WL 292870, at *6 (S.D. Ga. Jan. 4, 2012) ("[A]n exhaustive search
reveals that nearly every court to consider whether Carachuri applies retroactively has concluded
that it does not." (eollecting cases)). Ingram has therefore failed to show that his motion falls
within the scope of § 2255(f)(3).
In sum, lngram’s § 2255 motion must be dismissed as untimely because he filed it more
than one year after his judgment of conviction became final within the meaning of § 2255(f)(1),
and because it does not satisfy the requirements of § 2255(f)(3). Since the Court concludes that
lngram’s § 2255 motion is untimely and fails as a matter of law for that reason, it need not hold
an evidentiary hearing on the motion. _S_<;e_ United States v. l\/lorrison, 98 F.3d 619, 625 (D.C.
Cir. 1996) ("A judge need not conduct an evidentiary hearing before denying a petition for relief
under § 2255 when ‘the motion and the files and records of the case conclusively show that the
prisoner is entitled to no relief."’ (quoting 28 U.S.C. § 2255)).
B. lngram’s Motion to Reduce His Sentence Based on Amendment 750
Ingram also appears to seek relief based on Amendment 750 to the Guidelines, which
lowered base offense levels for crack cocaine offenses effective November 1, 2011. §§ Def,’s
Mot. at 6 (requesting "relief under the new 18-1 ratio for the new guidelines that went retroactive
on the lst of November"). Although Ingram does not state as much, the Court construes his
motion as being made pursuant to 18 U.S.C. § 3582(c)(2) (2006), which provides that
in the case of a defendant who has been sentenced to a term of imprisonment
based on a sentencing range that has subsequently been lowered by the
Sentencing Commission pursuant to 28 U.S.C. 994(0), upon motion of the
defendant or the Director of the Bureau of Prisons, or on its own motion, the court
may reduce the term of imprisonment, after considering the factors set forth in
section 3553(a) to the extent that they are applicable, if such a reduction is
consistent with applicable policy statements issued by the Sentencing
Commission.
Thus, as a threshold matter under § 3582(c)(2), "the defendant must have been sentenced ‘based
on a sentencing range that has subsequently been lowered."’ United States v. Berry, 618 F.3d
13, 16 (D.C. Cir. 2010) (quoting 18 U.S.C. § 3582(c)(2)) (emphasis added). The government
asserts that lngram’s sentence was based on a Rule 1 l(c)(l )(C) plea agreement that was not tied
to any particular Guideline sentencing range, and that Ingram is therefore ineligible for §
3582(c)(2) relief. Gov``t’s Opp’n at 18. For the reasons that follow, the Court agrees.
1n determining whether a sentence imposed pursuant to a Rule ll(e)(l)(C) plea
agreement is "based on" the Guidelines, the Supreme Court’s recent decision in Freeman v.
United States, __ U.S. »H, 131 S. Ct. 2685 (2011), is control1ing. There, the defendant was
indicted for several crimes, including possession with the intent to distribute cocaine base in
violation of2l U.S.C. §§ 841(a)(1), (b)(l)(C). l_d. at __, 2691 (plurality). He entered into a Rule
1 1(c)( 1 )(C) plea agreement providing for an agreed-upon sentence of 106 months``
imprisonment. li The agreement reflected "the parties’ expectation that [the defendant] would
face a Guidelines range of 46 to 57 months, along with a consecutive mandatory minimum of 60
months for possessing a firearm in furtherance of a drug-trafficking crime." l_cL (intemal citation
omitted). "The recommended sentence of 106 months thus corresponded with the minimum
sentence suggested by the Guidelines, in addition to the 60-month" mandatory minimum. I_430 U.S. 188, 193 (1977) (internal
quotation marks and citation omitted). Applying the W_r_l_<_§ rule to Freeman, every Circuit to
consider the question has concluded that justice Sotomayor’s concurrence in Freeman expresses
the holding of the case because it contains the narrowest grounds for the Court’s decision. S_e_e
United States v. Dixon, 687 F.3d 356, 359 (7th Cir. 2012); United States v. Thompson. 682 F.3d
285, 290 (3d Cir. 2012); United States v. Austin, 676 F.3d 924, 927-28 (9th Cir. 2012); _l_jnitid
States v. Rivera-l\/lartinez, 665 F.3d 344, 348 (lst Cir. 2011); United States v. Brown, 653 F.3d
337, 340 (4th Cir. 2011); United States v. Smith, 658 F.3d 608, 611 (6th Cir. 2011);@_@_§
States v. White, 429 F. App’x 43, 47 (2d Cir. 201 1). Other members of this Court have reached
the same result. See e.g., United States v. Heard, 859 F. Supp. 2d 97, 100 (D.D.C. 2012);
United States v. Turnerl 825 F. Supp. 2d 240, 245 (D.D.C. 2011); United States v. Walker, 818
F. Supp. 2d 151, 152 (D.D.C. 2011). Finding the reasoning of these decisions persuasive and in
the absence of binding authority from the District of Columbia Circuit, this Court likewise finds
that justice Sotomayor``s concurrence is the controlling opinion in @_rr_i@.
Under justice Sotomayor’s approach, lngram is ineligible for § 3582(c)(2) relief because
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the stipulated term of imprisonment in his Rule ll(c)(l)(C) plea agreement was not expressly
"based on" a Guideline sentencing range. Although the opening paragraph of`` the plea agreement
refers generally to the applicability of the Guidelines, g ECF No. 182 at 1 ("Your client . . .
understands that your client will be sentenced according to 18 U.S.C. Sections 3553(a) and
3553(0) through (f}, upon consideration of the [Guidelines], which will apply to determine your
client’s [G]uideline range,”), the agreed-upon term of`` imprisonment does not refer to a particular
Guideline range, offense level, or criminal history category. Rather, the plea agreement states
only that the parties "agree that a sentence of incarceration of 13 years is the appropriate
sentence for the offense(s) to which [the defendant] is pleading guilty," with no explanation for
how this number was reached. l_cL at 2. As a result. this Court, like the First Circuit in _R_i_v_'e@
l\/lartinez, "cannot identify a referenced sentencing range from the [plea a]greement alone," and
therefore "would have to supplement the [a]greement with either the parties`` background
negotiations or the facts that informed [this] judge``s decision to accept the plea," which "justice
Sotomayor’s concurrence forbids." 665 F.3d at 349 (citation omitted``); see also Dixon, 687 F.3d
at 362 (finding defendant ineligible for a sentence reduction under § 3582(0)(2) where "[t]he
written [plea] agreement . . . did not expressly base the agreed sentence on a Guideline range in
the written agreement itself’). Furthermore, the parties’ agreed-upon sentence of thirteen years
(156 months) was well below the bottom of lngram’s Guideline range of`` 188 to 235 months, §
ECF No. 211 at 1-2, undennining the inference that the Guidelines fonned the basis for his
sentence. Because there is no indication from the plea agreement that the parties’ agreed-upon
sentence was "based on" the Guidelines, the Court concludes that lngrain is not eligible for a
sentence reduction under § 3582('c)(2).
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III. CONCLUSION
For the foregoing reasons, lngram’s motion to vacate, set aside, or correct his sentence is
denied.
SO ORDERED this 3rd day of December, 2012.2
United States 1)istrict judge
2 The Court will contemporaneously issue an Order consistent with this l\/lemorandum Opinion.
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