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United States of America v. Terrance Howard Wells

March 29, 2012


The opinion of the court was delivered by: Judge Nora Barry Fischer



This matter is before the Court on a Motion to Vacate, Set Aside or Correct Sentence under 28 U.S.C. § 2255 ("motion") filed by pro se Defendant Terrance Howard Wells. (Docket No. 144). Defendant claims that his sentence should be vacated due to "mitigating circumstances" and the application of the Fair Sentencing Act of 2010 ("FSA"). (Docket Nos. 145, 152). He also requests an evidentiary hearing. (Id.). The Government opposes Defendant's motion, arguing that he waived his right to file a motion to vacate under 28 U.S.C. § 2255 in a plea agreement with the Government, he did not meet the 120 day deadline to amend his arguments, his claims fail as a matter of law, and he is not entitled to an evidentiary hearing. (Docket No. 163). Based on the following, Defendant's motion to vacate [144] is DENIED.


On February 5, 2008, a federal grand jury returned a six-count indictment against Defendant and his co-defendant Robert L. Pegues, III. (Docket No. 1). The indictment charged both Wells and Pegues with one count of conspiracy to distribute fifty grams or more of crack cocaine between September 5 and September 7, 2007 (Count 1) and two counts of distributing and possessing with the intent to distribute fifty grams or more of crack cocaine on September 5 and September 7, 2007 (Counts 2 and 3). (Id.). The indictment also charged Wells individually with carrying a firearm during a drug trafficking crime on September 5, 2007 (Count 4) and possessing this firearm as a convicted felon (Count 6). (Id.). Pegues was charged individually with one count of carrying a firearm during a drug trafficking crime on September 7, 2007 (Count 5). (Id.).

The charges resulted from two controlled sales of crack cocaine to an undercover agent by Wells and Pegues. (Presentence Investigation Report ("PSIR") at ¶¶ 7-8). On September 5, 2007, undercover agents effectuated a controlled purchase of two ounces of crack cocaine for $2,000 from Wells and Pegues. (Id. at ¶ 7). During the sale, the witness expressed his interest in purchasing handguns, and Wells showed the witness a black handgun that was tucked in his waistband. (Id.). Wells told the witness that he would locate a gun for the witness to purchase for $250. (Id.). Two days later, on September 7, 2007, the witness found Pegues and told him that the crack cocaine that he sold to the witness was less than two ounces. (Id. at ¶ 8). Pegues then asked the witness if he would like to purchase a firearm. (Id.). During this conversation, Wells arrived, and the three individuals got into the witness's vehicle. (Id.). Wells and Pegues offered to sell the witness one ounce of crack cocaine and a firearm for a total of $1,400. (Id.). During the transaction, Pegues showed the witness that he was carrying a gun. (Id.). The witness paid Wells and Pegues $1,400 for 23.2 grams of crack cocaine and a .40 caliber semiautomatic handgun. (Id.).

On December 21, 2009, Defendant pled guilty to Counts 1 and 4 of the Indictment pursuant to a written plea agreement with the Government. (Docket No. 88). In the plea agreement, the parties stipulated to the type and quantity of the controlled substance attributable to Defendant for the purposes of § 2D1.1 of the Sentencing Guidelines in the amount of more than fifty but less than 150 grams of cocaine base in the form commonly known as crack, a Schedule II controlled substance. (Id. at ¶ C.4). This stipulation was not binding on the Court. (Id.). The plea agreement also detailed the penalties that may be imposed upon the Defendant by the Court under Counts 1 and 4. (Id. at ¶¶ C.1-C.2).

In addition to Defendant's guilty plea at Counts 1 and 4, the written plea agreement provides that "[h]e acknowledges his responsibility for the conduct charged in Counts 2, 3 and 6 of the Indictment at Criminal No. 08-68," shall voluntarily forfeit to the United States all property subject to forfeiture under 18 U.S.C. § 924(d) and 28 U.S.C. § 2461(c), shall pay a special assessment to the Clerk of Court, waives the right to seek post-conviction DNA testing of physical evidence and the right to preserve same, and waives former jeopardy or double jeopardy claims. (Docket No. 88 at ¶¶ A.1-A.7, B.1). Furthermore, the plea agreement states:

Terrance Howard Wells waives the right to take a direct appeal from his conviction or sentence under 28 U.S.C. §1291 or 18 U.S.C. §3742, subject to the following exceptions:

(a) If the United States appeals from the sentence, Terrance Howard Wells may take a direct appeal from the sentence.

(b) If (1) the sentence exceeds the applicable statutory limits set forth in the United States Code, or (2) the sentence unreasonably exceeds the guideline range determined by the Court under the Sentencing Guidelines, Terrance Howard Wells may take a direct appeal from the sentence.

Terrance Howard Wells further waives the right to file a motion to vacate sentence, under 28 U.S.C. § 2255, attacking his conviction or sentence, and the right to file any other collateral proceeding attacking his conviction or sentence. (Id. at ¶ A.7). The plea agreement concludes with a statement that "[t]his letter sets forth the full and complete terms and conditions of the agreement between Terrance Howard Wells and the United States Attorney for the Western District of Pennsylvania, and there are no other agreements, promises, terms or conditions, express or implied." (Id. at 6). Additionally, in the plea agreement, Defendant asserted:

I have received this letter from my attorney, John A. Knorr, Esquire, have read it and discussed it with him, and I hereby accept it and acknowledge that it fully sets forth my agreement with the Office of the United States Attorney for the Western District of Pennsylvania. I affirm that there have been no additional promises or representations made to me by any agents or officials of the United States in connection with this matter. (Id.). The agreement is executed by Defendant on December 21, 2009 and signed as witnessed by: John A. Knorr, Esquire, Counsel for Terrance Howard Wells. (Id.).

A change-of-plea hearing was held before the undersigned on December 21, 2009. (See Docket No. 87). During the hearing, the Court found Defendant competent to plead. (Id.). The Government reviewed the charges against Defendant, the Court advised Defendant of his right to trial, and Defendant indicated his understanding of the charges. (Id.). Thereafter, the Court asked counsel and Defendant about the plea agreement as well as the appellate and post-sentencing challenge waiver provision contained in the agreement. (Id.). The Government through its counsel reviewed the terms of the plea agreement on the record, and Defendant expressed his understanding and assent to the plea agreement, including that he waived his right to appeal and to collaterally attack his sentence unless certain limited exceptions apply. (Id.). The Court found that Defendant knowingly and voluntarily waived his rights and admitted the plea agreement, which had been marked as Exhibit 1, into evidence. (Id.; see also Docket No. 88). The Court then asked Defendant about his understanding of the application of the Sentencing Guidelines and various court decisions construing the Court's role in applying same and advised Defendant of potential penalties. (Docket No. 87). Next, the Government summarized the evidence against Defendant, and Defendant had no corrections or additions to this summary. (Id.). Thereafter, Defendant expressed his wish to plead guilty, and the Court accepted Defendant's change of plea and entered a Judgment of Guilt as to Counts 1 and 4 and acknowledgement of conduct at Counts 2, 3, and 6. (Id.). Counsel and Defendant signed the Change of Plea Form in open court. (Id.).

After Defendant's change-of-plea hearing, the Government moved for forfeiture of property as to Defendant, which the Court granted on January 29, 2010. (Docket Nos. 97, 98). Pursuant to 18 U.S.C. § 924(d) and 28 U.S.C. § 2461(c), Defendant was ordered to forfeit his rights in the Interarms Firestar Model .40 caliber semi-automatic pistol, serial number 2085262.*fn1

(Docket No. 97).

Defendant's sentencing was initially scheduled for April 22, 2010. (Docket No. 90). Given same, a PSIR was ordered to be filed on or before March 18, 2010. (Id.). Neither Defendant nor the Government had any objections to the PSIR, including the Probation Office's calculation of the advisory guideline range of 120 to 150 months' imprisonment, based on a total offense level of 27 and a criminal history category of V. (Docket Nos. 99, 100). Accordingly, the Court issued its Tentative Findings and Rulings on April 15, 2010, adopting this advisory guideline range and describing the other potential criminal penalties that Defendant faced. (Docket No. 105). Defendant then filed a motion to continue the sentencing, which this Court granted. (Docket Nos. 108, 109).

At the sentencing hearing on May 10, 2010, the Court first described the procedural history in the case. (Docket No. 118). After the oath was administered to Defendant, the Court then asked him questions regarding his review of the PSIR, Addendum, and Tentative Findings. (Id.). Defendant answered and indicated that he understood. (Id.). Once again, neither party presented objections to the Presentence Report or the Addendum. (Id.).

Thereafter, the Court adopted the facts set out in the PSIR and Addendum, except as otherwise set forth in the Court's Tentative Findings and Rulings. (Id.). The Court then adopted the Tentative Findings and Rulings as its Final Findings and Rulings on the facts and the Guidelines. (Id.). Defendant proceeded to offer evidence in the form of several character letters written on his behalf, as well as a letter written by Defendant himself, and the Court reviewed same and admitted them into evidence as Exhibit 1. (Id.). Counsel presented argument regarding aspects of the sentence, and Defendant declined to make a statement to the Court. (Id.). After considering the parties' arguments, the Court imposed a sentence of 180 months' imprisonment, consisting of 120 months at Count 1 and sixty months at Count 4, to be served consecutively. (Docket Nos. 118, 119). Defendant was also sentenced to five years supervised release, consisting of five years at Count 1 and five years at Count 4, said terms to run concurrently. (Id.). No fine was imposed, and Defendant was ordered to pay a $200.00 special assessment. (Id.). At the conclusion of sentencing, the Court advised Defendant of his appeal rights.*fn2 (Id.).

On January 6, 2011, the Government moved for final order of forfeiture as to Defendant for the Interarms Firestar model .40 caliber semi-automatic pistol, serial number 2085262. (Docket No. 141). The Court subsequently entered a final order of forfeiture. (Docket No. 142).

Defendant filed a pro se motion to vacate his sentence pursuant to 28 U.S.C. § 2255 and a brief in support on May 12, 2011. (Docket Nos. 144, 145). He argues that "existing mitigating circumstances" support the imposition of a lesser sentence. (Docket No. 145 at 13). From the Court's review of Defendant's brief, these circumstances appear to be his "painful childhood experiences within the unwholesome and grossly dysfunctional 'home environment,'" the "extreme mental duress" that he suffered from particular Parole Officers "during the entire short period of time he was actively involved with 'dealing crack,'" and the "unconscious racism [that] can be found in the latent psyches of white Americans." (Docket No. 145 at 12-18). In his motion, Defendant also requests an evidentiary hearing so that he may prove the facts that he has alleged in his brief. (Id. at 17).

On May 13, 2011, the Court issued a Notice and Order setting forth a briefing schedule with respect to Defendant's motion. (Docket No. 146). In particular, the Court provided Defendant with three options: (1) you may withdraw your pending petition and subsequently file one new, all-inclusive § 2255 petition, which contains every ground for relief which you believe may entitle you to relief from the conviction and sentence you are seeking to challenge, provided that any new § 2255 petition is filed within the one-year statute of limitations; (2) you may amend the § 2255 petition presently on file with the Court with any additional claims or materials in support of your pending claims which you want the Court to consider in ruling on your pending petition; however, if the amendment is not filed within 120 ...

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