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Alexander v. United States

United States District Court, M.D. Pennsylvania

September 10, 2019

ANDREW ALEXANDER, Petitioner
v.
UNITED STATES OF AMERICA, Respondent

         Judge Kane)

          MEMORANDUM

         Before the Court is Petitioner Andrew Alexander (“Petitioner”)'s motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. (Doc. No. 291.) For the reasons that follow, the Court will deny Petitioner's motion.

         I. BACKGROUND

         During the spring of 2013, law enforcement officials began investigating a residence in York, Pennsylvania for drug trafficking. (Doc. No. 262 at 25.) Shortly before March 12, 2013, a detective conducted a trash pull from trash located outside of the residence. (Id.) The detective found plastic baggies with white powder residue, ten (10) to twelve (12) bags with the corners ripped off, mail addressed to Veronica Rivera (“Rivera”), the homeowner, and piece of paper with handwritten notes. (Id. at 26-27.) A baggie with residue tested positive for cocaine. (Id.) The notes consisted of various names with numbers next to them and appeared to be an informal ledger of drug debts, referred to as an “owe” sheet. (Id. at 28.) Law enforcement obtained a search warrant for the residence based upon the information gathered from the trash pull. (Id. at 29.)

         On March 13, 2013, local law enforcement officers and agents from the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”) executed the search warrant for the premises. (Id. at 33.) They located a bag of cocaine, a scale, drug packaging materials, and baking soda in the kitchen. (Id. at 50-62.) They also found unused plastic bags for packaging heroin, 86 bags of heroin, and a bag of raw heroin on the first floor. (Id.) Officers located Rivera and 35 grams of crack cocaine in a bedroom on the second floor. (Id. at 55.) They also found a bag of cocaine hydrochloride and a pair of men's pants in the bedroom. (Id. at 61, 67.) In the pants, officers found $2, 893.00 in cash and handwritten notes similar to the “owe” sheets recovered from the trash. (Id. at 68-70.) In the bathroom, officers recovered 898 bags of heroin in and around the toilet bowl. (Id. at 62, 91.) Officers located Petitioner and Andrew Gonzalez (“Gonzalez”) on the third floor of the residence. (Doc. No. 263 at 162.) Officers showed the pants to Petitioner, who admitted they belonged to him. (Doc. No. 262 at 67.)

         On September 3, 2014, Petitioner, Gonzalez, and Rivera were charged in a criminal complaint with possession with intent to distribute cocaine, heroin, and 28 grams and more of cocaine base in violation of 21 U.S.C. § 841, and conspiracy to possess with intent to distribute cocaine, heroin, and 28 grams and more of cocaine base in violation of 21 U.S.C. § 846. (Doc. No. 1.) Petitioner was arrested on September 4, 2014, and Sandra I. Thompson (“Attorney Thompson”) entered an appearance on his behalf. (Doc. Nos. 10, 12.) On September 10, 2014, a grand jury returned an indictment charging Petitioner, Gonzalez, and Rivera with the same offenses as those set forth in the criminal complaint. (Doc. No. 22.)

         On November 19, 2014, Attorney Thompson filed an omnibus pretrial motion on Petitioner's behalf. (Doc. No. 50.) In this motion, Attorney Thompson sought, inter alia, to suppress evidence obtained from the trash pull conducted at Rivera's residence. (Id.) The Court held a hearing on Petitioner's omnibus motion on June 8, 2015. (Doc. No. 197.) During the hearing, counsel for the Government represented that Petitioner had obtained an expert witness, Heather Harris, to testify that “the field test used by the York City Police Department to test for cocaine from the trash pull is not reliable to the degree that it can help establish probable cause in this particular case.” (Id. at 5-6.) Ms. Harris did not testify at the hearing. Instead, the Court directed Attorney Thompson to submit “a further record of proffer by way of an affidavit” to make a sufficient offer of proof regarding Harris's proposed testimony. (Id. at 197-98.) Attorney Thompson submitted the offer of proof on June 16, 2015. (Doc. No. 120.) In a Memorandum and Order dated August 10, 2015, the Court denied Petitioner's omnibus pretrial motion. (Doc. No. 151, 152.) Subsequently, Attorney Thompson filed a motion to withdraw as Petitioner's counsel. (Doc. No. 154.) In an Order dated September 21, 2015, the Court granted Attorney Thompson's motion. (Doc. No. 156.) On October 16, 2015, David Erhard (“Attorney Erhard”) was appointed to represent Petitioner. (Doc. No. 162.)

         Petitioner was tried by a jury before the undersigned from March 29, 2016 through March 31, 2016. At trial, law enforcement officers involved in the investigation of Petitioner testified to the facts regarding the trash pull and execution of the search warrant set forth above. The Government also presented testimony from an expert witness regarding the differences between cocaine and crack cocaine, the manner in which quantities of crack cocaine are packaged and sold, heroin usage and trafficking, retail costs for these substances, and “owe” sheets. (Doc. No. 263 at 272-78.)

         The Government also presented testimony from Gonzalez and Rivera. Gonzalez testified that Petitioner had asked him if he was interested in bagging heroin for him. (Doc. Nos. 262 at 106-08; 263 at 142-44.) Gonzalez agreed to do so, and Petitioner provided him a scale, bags, and other equipment to package drugs. (Doc. No. 262 at 105.) Gonzalez packaged approximately 80 bags of heroin but did not complete that task before the warrant was executed. (Id. at 107-10.) He affirmed that a quantity of heroin that officers had located in a canvas bag was heroin that Petitioner had provided to him for packaging. (Id.)

         Rivera testified that she had met Petitioner through a mutual friend and that she had been in a relationship with Petitioner. (Doc. No. 263 at 191.) Over time, Petitioner asked her to drive him to various places to obtain “stuff.” (Id. at 193.) Rivera observed him obtain heroin on many of these occasions. (Id. at 195.) She also witnessed him receiving cocaine and marijuana. (Id. at 194.) Rivera testified that she drove Petitioner to Gettysburg, Pennsylvania on two (2) or three (3) occasions to meet a source of supply there. (Id.) Rivera indicated that she had driven Petitioner to Gettysburg to obtain heroin and cocaine the day prior to the execution of the search warrant. (Id. at 196-200.) Petitioner and a third person, Juan Castro (“Castro”), then cooked the cocaine into crack cocaine at her residence. (Id.) Petitioner and Castro left the residence, leaving Rivera to bag the crack cocaine. (Id.) Rivera testified that she had taken the crack cocaine to her bedroom to bag it but was unable to do so before the search warrant was executed. (Id.)

         During their deliberations, the jury submitted a note to the Court stating, “Can we decide on one count but not decide on the second? We are not coming to a conclusion. We are not unanimous on Count 1.” (Doc. No. 264 at 360.) The Court consulted with counsel, and all parties agreed that taking a partial verdict would be premature. (Id. at 361.) Attorney Erhard noted that he was not opposed to an instruction that the jury continue to deliberate. (Id.) The Court directed the jury to its instruction that they are to consider each offense separately. (Id. at 362.)

         The jury subsequently sent a second note to the Court, stating “We cannot come to a unanimous vote on a count. We are split and not budging.” (Id. at 362.) Counsel agreed that the Court should ask the jury whether it should recess for the evening and resume deliberations in the morning. (Id. at 366.) The Court did so, and the jury submitted another note stating, “We are split with strong opinions on one count. We feel that this will not change overnight. We are willing to continue.” (Id.) The Court, therefore, permitted the jury to continue deliberations. (Id.) Twenty (20) minutes later, the jury returned a verdict, which was unanimous. (Id.) The jury found Petitioner guilty of Count One, conspiracy to distribute controlled substances, and found that the controlled substance he had conspired to distribute was heroin. (Doc. No. 215 at 1-2.) The jury found Petitioner not guilty of Count Two, which charged him with possession with intent to distribute controlled substances. (Id. at 3.)

         Following the jury trial, the United States Probation Office prepared a Presentence Report (“PSR”). (Doc. No. 259.) The PSR noted that Petitioner was a career offender pursuant to § 4B1.1 of the United States Sentencing Guidelines because of his prior convictions for robbery and delivery of cocaine. (Id. ¶¶ 28, 36, 41.) By operation of the career offender designation, Petitioner fell within criminal history category VI. (Id. ¶ 44.) The probation officer noted, however, that even without the career offender designation, Petitioner's total criminal history score of 17 still placed him within criminal history category VI. (Id.) Attorney Erhard objected to the career offender designation and requested a hearing “to present and contest relevant information.” (Doc. No. 260 at 6-7.)

         On September 20, 2016, the parties appeared before the Court for a sentencing hearing (Doc. No. 286), where the Court directed counsel to “outline the evidence in short briefs regarding the career offender status of this defendant along with drug amounts, role in the offense and any other objections brought by the defendant to the PSI Report that was presented during that hearing” (Doc. No. 269). After receiving the parties' briefs, in an Order dated December 15, 2016, the Court sustained Petitioner's objection to the drug weight calculation in part, overruled his objection to the career offender designation after concluding that Petitioner's robbery conviction qualified as a crime of violence pursuant to § 4B1.2 of the Sentencing Guidelines, sustained his objection to the two-level enhancement for possession of a firearm, and sustained his objection to the three-level enhancement for having a role as a manager or supervisor in a criminal activity involving five or more participants. (Doc. No. 279.)

         The parties appeared before the Court for Petitioner's sentencing on December 14, 2016. (Doc. No. 287.) The Court noted that with the career offender designation, Petitioner's Sentencing Guidelines range called for 210 to 240 months' imprisonment. (Id. at 3.) Without the career offender designation, Petitioner's range would have been 100 to 125 months' imprisonment. (Id.) After hearing from Attorney Erhard and Petitioner, the Court noted that “technically the characterization of career offender is proper under the [G]uidelines.” (Id. at 20.) The Court concluded, however, that “a sentence in the career offender guideline range of 210 to 240 months would be excessive when [it] consider[s] the seriousness of the offense that [brought Petitioner] before the [C]ourt.” (Id.) Accordingly, the Court found that “a sentence in excessive of that which he would have received had he not received the offender, career ...


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