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United States v. Brice

November 20, 2008

UNITED STATES OF AMERICA
v.
TERRELL BRICE



The opinion of the court was delivered by: Diamond, J.

MEMORANDUM

On November 10, 2008, I sentenced Defendant Terrell Brice on drug and weapons charges. As I then explained, in calculating Defendant's advisory Guidelines range I determined that: 1) Defendant is a career offender under § 4B1.1; and 2) Defendant is not entitled to a two point reduction in offense level under § 3E1.1(a) for acceptance of responsibility. See U.S. Sentencing Guidelines Manual §§ 4B1.1; 3E1.1. In this Memorandum, I more fully set forth the reasons for these conclusions.

I. BACKGROUND

On December 5, 2006, the grand jury returned a three count indictment against Defendant, charging him with distribution of cocaine, possession of a firearm in connection with a drug trafficking crime, and possession of a firearm by a convicted felon. 21 U.S.C. § 841(a)(1); 18 U.S.C. §§ 924(c)(1)(A); 922(g)(1); see Doc. No. 1. Defendant's trial began on July 31, 2007, and ended on August 6, 2007, when I declared a mistrial because of a hung jury. On November 6, 2007, Defendant pled guilty to Counts I and III of the Indictment.

A. Defendant's Guilty Plea and Initial Guidelines Calculation

Defendant pled guilty pursuant to a written agreement. During the plea hearing, Defendant admitted that on the evening of November 4, 2005, he sold cocaine on a street corner in North Philadelphia. Defendant admitted that he kept the drugs on the porch of a nearby house, where he also kept two loaded handguns. Defendant admitted that he had been convicted in 2001 in Pennsylvania state court of possession with intent to distribute cocaine, a felony. Tr. Nov. 6, 2007 at 6:17-25, 8:20-24; Doc. Nos. 50, 55 at ¶ 1. Finally, Defendant admitted that he was pleading guilty to distribution of cocaine and possession of a firearm by a convicted felon because he was guilty of having committed those crimes. Tr. Nov. 6, 2007 at 9:23-12:15.

In its Presentence Investigation Report, Probation recommended that I designate Defendant as a "career offender" under Guidelines § 4B1.1. Such a designation would increase Defendant's offense level from 24 to 34, and his criminal history category from IV to VI. The Probation Office also recommended that I reduce Defendant's offense level to 32 for acceptance of responsibility. U.S. Sentencing Guidelines Manual § 3E1.1(a). The resulting advisory Guideline range was 210-262 months incarceration.

B. Defendant Seeks to Withdraw His Guilty Plea

On February 13, 2008, Defendant filed a pro se motion to withdraw his guilty plea, alleging that his counsel had lied to him about the sentence I would impose. I allowed Defendant's lawyer to withdraw, and appointed new counsel. I conducted a hearing on May 1, 2008, during which Defendant reiterated that he pled guilty only because his prior counsel promised that Defendant's sentence would not exceed 63 to 78 months incarceration. Tr. May 1, 2008 at 6-7. Defendant testified that he admitted his guilt during his guilty plea hearing because: "I was just saying yes to everything like my lawyer was telling me to." Id. at 11:20-21. Defendant explicitly denied that he pled guilty because he was guilty:

Prosecutor: . . . So, you told the Court that you were pleading guilty because you were guilty, correct?

Defendant: No.

Prosecutor: Well, that is what it says right there in the notes of testimony, sir. Defendant: I said yes thinking I was going to get sixty-three to seventy-eight months. Prosecutor: Is it your testimony now that you were lying then?

Defendant: I'm not saying that I pleaded guilty because I was guilty. If that's the case I wouldn't have went to trial.

Id. at 21:18-22:3. Finally, Defendant testified that he was innocent of the charges to ...


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