United States District Court, D. Vermont
REPORT AND RECOMMENDATION (Doc. 141)
JOHN M. CONROY, Magistrate Judge.
Ronald Willie Newton, proceeding pro se, has filed a motion pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct a sentence imposed in this court following Newton's plea of guilty to two violations of the Controlled Substances Act and one violation of the Gun Control Act. Newton seeks to vacate these convictions, contending that the court lacked subject-matter jurisdiction due to a defective indictment. I recommend that Newton's motion (Doc. 141) be DENIED for the reasons set forth below.
I. Indictment and Change of Plea Proceeding
On May 26, 2011, an Indictment was filed in this district charging Newton, together with codefendants Terry Bahner, Lestly Westcott, and Bethany Pastuszak, with violations of the Controlled Substances Act, 21 U.S.C. § 841 and the Gun Control Act, 18 U.S.C. § 922. (Doc. 14.) In Count One, Newton was charged with engaging in a conspiracy with Terry Bahner and others, both known and unknown, to knowingly and intentionally distribute cocaine, in violation of 21 U.S.C. §§ 846 and 841(a). ( Id. at 1.) In Count Two, Newton was charged with one count of possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a). ( Id. at 2.) In Count Three, Newton was charged with possession of a firearm in connection with a drug trafficking offense, in violation of 18 USC § 924(c)(1); and in Count Four, he was charged with possession of the same firearm as a previously convicted felon, in violation of 18 U.S.C. § 922(g)(1). ( Id. at 3-4.) Count Five charged Newton with aiding and abetting in the commission of a false statement to a federally licensed firearms dealer in connection with the acquisition of a firearm by Bethany Pastuszak, in violation of 18 U.S.C. §§ 2 and 922(a)(6). ( Id. at 5.)
Following the denial of a motion to suppress his oral statements, Newton agreed to plead guilty to Counts One, Two, and Three of the Indictment. In a written Plea Agreement filed on February 14, 2012, Newton acknowledged his guilt and stated that he understood the nature of the charges filed against him and their potential penalties. (Doc. 56 at ¶¶ 3, 5.) The Plea Agreement accurately set forth the statutory penalties for each count of conviction, and Newton acknowledged that he entered into the Agreement of his own free will, with a full understanding of the charges, and having had a full opportunity to consult with his lawyer prior to entering into the Agreement. The Agreement set forth Newton's constitutional rights, and Newton acknowledged that by pleading guilty, he was waiving those rights. ( Id. at ¶ 5.) Newton also acknowledged that he was fully satisfied with the representation provided to him by Attorney Natasha Sen. ( Id. at ¶ 14.)
In exchange for Newton's pleas of guilty, the government agreed to (1) move to dismiss the remaining counts of the Indictment and refrain from prosecuting Newton for other crimes known to the government, (2) recommend that Newton be sentenced at the low end of the applicable sentencing guideline range in the event Newton was found to be a career offender under USSG §4B1.1, and (3) receive a three-level reduction for acceptance of responsibility under USSG §3E1.1. ( Id. at ¶ 10.)
On February 14, 2012, Newton appeared before Chief United States District Judge Christina Reiss to enter his pleas of guilty to the three offenses pursuant to Rule 11 of the Federal Rules of Criminal Procedure. (Doc. 149.) During the Rule 11 proceeding, the Chief Judge engaged Newton in the full colloquy required by the rule. Under oath, Newton stated that he had read and reviewed the Plea Agreement and that he had a full opportunity to discuss the Agreement with Attorney Sen before he signed it. ( Id. at 5.) Newton stated under oath that no one had threatened or pressured him into entering into the Plea Agreement. ( Id. at 6.) Newton stated that he had no questions concerning the Agreement, and that he fully understood its contents. ( Id. at 6-7.) The Chief Judge carefully explained Newton's constitutional rights to him, as required by Rule 11, and Newton acknowledged that he understood he was waiving those rights by pleading guilty. ( Id. at 11.) After the government stated the elements of each offense, the Chief Judge explained to Newton the statutory maximum penalties for each count, including the five-year mandatory minimum term of imprisonment required by his plea to the violation of 18 U.S.C. § 924(c) alleged in Count Three. The government then provided a statement of facts to be proven in the event the matter proceeded to trial. ( Id. at 15-18.) Newton acknowledged the accuracy of those facts, stating that he was pleading guilty because he was in fact guilty of the offenses to which he was pleading guilty. ( Id. at 18.) Chief Judge Reiss accepted Newton's pleas of guilty, concluding that they were entered into knowingly and voluntarily, with full understanding of the nature of each charge and the consequences of his plea. Judge Reiss concluded that Newton was fully competent and capable of entering into an informed plea. ( Id. at 19.) The court ordered the preparation of a presentence report in anticipation of sentencing.
II. Presentence Report and Sentencing
A Presentence Report ("PSR") was submitted, and concluded that Newton faced an advisory sentencing guideline range of 262 to 327 months imprisonment. (PSR ¶ 88.) The PSR further concluded that Newton was a career offender under USSG §4B1.1(c), as a consequence of his 2008 prior conviction for aggravated assault and conspiracy to commit murder and his 2010 conviction for aggravated assault, all sustained in the Commonwealth of Pennsylvania's Courts of Common Pleas. (PSR ¶¶ 53-54.) Classification as a career offender yielded an offense level of 32. (PSR ¶ 44.)
The PSR also accorded Newton a three-level reduction for acceptance of responsibility, which placed him at offense level 29 and criminal history category VI. Multiple count analysis and the mandatory 60 months consecutive term as a result of the conviction for the § 924(c) violation yielded the adjusted advisory range of 262 to 327 months. (PSR ¶ 88.)
Attorney Sen filed a Sentencing Memorandum on behalf of Newton, objecting to the career-offender determination. (Doc. 107.) Sen argued that the prior aggravated assault convictions were not predicate offenses triggering the application of the career-offender provisions of the Sentencing Guidelines. Alternatively, Attorney Sen contended that a downward departure or a variance from the advisory sentencing guideline range was warranted and a sentence within the range of 132 to 144 months was appropriate. (Doc. 107 at 30.) The government argued in support of the Sentencing Guideline calculation set forth in the PSR, but also supported a small variance from the sentencing range, asserting that a 240-month sentence was appropriate. (Doc. 108 at 17.)
The sentencing hearing was held on August 8, 2012. (Doc. 150.) The hearing included an extensive legal argument about whether Newton's prior aggravated assault convictions in Pennsylvania were predicate offenses sufficient to trigger the application of the career-offender provisions of the Sentencing Guidelines. The court ultimately concluded that the Pennsylvania aggravated-assault statutes matched the Model Penal Code's definition of aggravated assault sufficiently to warrant the conclusion that Newton's convictions were for "crimes of violence, " as that phrase is defined in §4B1.2. ( Id. at 79-80.) Accordingly, the court concluded that the advisory sentencing guideline range was 262 to 327 months, consistent with the conclusions of the PSR. ( Id. at 83.)
With regard to the statutory sentencing factors set forth in 18 U.S.C. § 3553(a), the court noted at the sentencing hearing that it was required to impose a sentence that reflected the nature and circumstances of the offense and the history and characteristics of the defendant. ( Id. at 84.) The court also noted that, in an effort to impose a sentence that was sufficient but not greater than necessary to reflect the seriousness of the offense, it needed to impose a just punishment which promoted respect for the law, afforded adequate deterrence, protected the public from the defendant, and provided the defendant with needed health care and educational and vocational training. ( Id. at 85.) Chief Judge Reiss carefully reviewed these factors, and concluded that a significant variance from the Sentencing Guideline range was warranted. Newton was sentenced to 100 months in prison on Counts One and Two, to run concurrently with each ...