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United States v. Thompson

United States District Court, D. Minnesota

June 20, 2019

United States of America, Respondent-Plaintiff,
Addison Thompson, Jr., Petitioner-Defendant.

          Addison Thompson, Jr., Petitioner-Defendant, Pro Se.

          Thomas M. Hollenhorst, Assistant United States Attorney, United States Attorney's Office, counsel for the Government.




         This matter is before the Court on Petitioner-Defendant Addison Thompson, Jr.'s (“Petitioner-Defendant”) pro se motion under 28 U.S.C. § 2255 to vacate or set aside his sentence and conviction. (Doc. No. 80.) The United States of America (the “Government”) opposes Petitioner-Defendant's motions. (Doc. No. 96.)

         Specifically, Petitioner-Defendant alleges that due to the ineffective assistance of his counsel during the pretrial, sentencing, and appeal phases of the proceedings in his criminal matter, his guilty plea was not knowing and voluntary and the sentence imposed by this Court was excessive. Petitioner-Defendant requests that he be allowed to that his case be remanded for resentencing. The Government opposes any order to disturb the judgment entered on the grounds that Petitioner-Defendant knowingly and voluntarily pled guilty, received adequate representation throughout the proceedings, and was sentenced in consideration of accurate information. The Government further argues that no evidentiary hearing is warranted because the record conclusively supports the judgment as entered.

         For the reasons set forth below, the Court denies Petitioner-Defendant's motion.


         Petitioner-Defendant was charged by an indictment filed March 22, 2017 with nine counts of robbery and drug-related charges (Doc. No. 11 (“Indictment”)), and pled not guilty as to all counts on March 29, 2017 (see Doc. No. 15). Petitioner-Defendant, through his counsel Frederic K. Bruno (“Attorney Bruno”), filed 17 pre-trial motions and related memoranda before notifying the Court that the parties had agreed to a resolution of the case and withdrawing Petitioner-Defendant's motions (Doc. Nos. 17-33; Doc. No. 39.)

         Pursuant to a written plea agreement (Doc. No. 43 (“Plea Agreement”)), on July 26, 2017, Petitioner-Defendant entered pleas of guilty to Counts 5 and 6 of the Indictment. Count 5 charged Petitioner-Defendant with Interference with Commerce by Robbery in violation of 18 U.S.C. §1951; Count 6 charged Intent to Distribute Oxycodone in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). A Presentence Investigation Report (“PSR”) was ordered at the change of plea hearing (see Doc. No. 65 (“Plea Hearing”) at 44), and each party filed a sentencing memorandum (Doc. Nos. 48, 51). The PSR included calculations under the United States Sentencing Guidelines (the “Guidelines”) totaling an adjusted offense level of 34 and a criminal history category (“CHC”) of VI, which resulted in an advisory guidelines range of 262 to 327 months' imprisonment. (Doc. No. 45 (“PSR”) ¶ 122.) Petitioner-Defendant responded to the initial version of the PSR disclosed to counsel, noting several objections and proposed amendments, some of which were resolved through revisions to the report. (PSR at A.1.) The remaining five objections were noted in the PSR Addendum, and the substance of the objections was also addressed in Petitioner-Defendant's sentencing memorandum. (PSR at A.1-3; Doc. No. 48.)

         Petitioner-Defendant was sentenced on November 27, 2017. At sentencing, this Court adopted the PSR with two changes: a two-level increase for the use of violence or credible threat of violence, and a finding that Petitioner-Defendant had a CHC of V. (Doc. No. 57 (“Statement of Reasons”) Sec. I.) Additionally, the Court applied a three-level reduction for acceptance of responsibility that was anticipated but not factored into the PSR calculation, resulting in a total offense level of 29. (See PSR ¶¶ 65-66; Doc. No. 66 (“Sentencing Hearing”) at 69.) The Court pronounced a sentence within the Guidelines range, sentencing Petitioner-Defendant to 148 months' imprisonment on each count, to run concurrently, to be followed by 3 years of supervised release (Sentencing Hearing at 88, 90, 92). Counts 1 through 4 and 7 through 9 of the Indictment were dismissed on the motion of the Government. (Doc. No. 56.)

         Petitioner-Defendant filed a notice of appeal on December 6, 2017. (Doc. No. 58.) Petitioner-Defendant's appeal to the Eighth Circuit was filed the next day, as was Attorney Bruno's notice of appearance. United States v. Addison Thompson, Jr., Appeal No. 17-3670, Entry ID Nos. 4608422, 4608536 (8th Cir. Dec. 7, 2017). The Government moved to dismiss, and the motion was granted on December 19, 2017. (Doc. No. 60.) This Court granted Petitioner-Defendant's motion for an extension of time to file (Doc. Nos. 77, 78), and Petitioner-Defendant timely filed this § 2255 motion and supporting memorandum of law on December 17, 2018 (Doc. Nos. 80, 81), which the Government opposed (Doc. No. 96).

         Before filing its response, the Government requested an order from this Court confirming that Petitioner-Defendant waived the attorney-client privilege with respect to his allegations of ineffective assistance of counsel. (Doc. No. 89.) This request was granted and Attorney Bruno was granted leave to file an affidavit in defense of the claims made by Petitioner-Defendant about his performance. (Doc. No. 91.) Attorney Bruno submitted an affidavit in response to Petitioner-Defendant's allegations. (Doc. No. 96-1, (“Bruno Aff.”).) Petitioner-Defendant additionally filed a reply to the Government's response reiterating his original allegations and further claiming that his judgment was clouded by prescription medication at the time of his guilty plea, and that by responding to Petitioner-Defendant's motion, Attorney Bruno improperly breached attorney-client privilege. (Doc. No. 97 at 2.)

         I. Plea Agreement

         On July 26, 2017, Petitioner-Defendant and the Government entered into the Plea Agreement. First, the parties agreed that Petitioner-Defendant would plead guilty to Counts 5 and 6 of the Indictment with the understanding that the Government would move to dismiss the remaining counts at sentencing. (Plea Agreement ¶ 1.) The parties agreed to the factual basis for the plea, and further, the parties agreed that if they were to proceed to trial, the Government would prove the facts supporting the plea beyond a reasonable doubt. (Id. ¶ 2.) Petitioner-Defendant acknowledged his right to file pretrial motions and “knowingly, willingly and voluntarily” agreed to withdraw the motions filed up to that point and to waive his right to file any additional pretrial motions. (Id. ¶ 3.)

         The Plea Agreement addressed the Guidelines and relevant statutes to be considered at sentencing, anticipating a CHC of V but noting that Petitioner-Defendant's actual CHC would be determined by the Court. (Id. ¶ 8(d).) The parties stated their respective positions as to the base offense level for each count and the applicable enhancements and reductions, reserving their rights to argue as to the application of increases for the use of a dangerous weapon and the taking of a controlled substance in connection to Count 5 and for the possession of a dangerous weapon and the use of violence in connection to Count 6. (Id. at ¶¶ 8(a)-(b).) The parties agreed, though, that no other specific offense characteristics applied. (Id.) The Government's calculations resulted in a Guidelines range of 168 to 210 months of imprisonment; Petitioner-Defendant's calculations resulted in a range of 100 to 125 months. (Id. ¶ 8(e)-(f).) The parties agreed that “[n]othing in this Plea Agreement should be construed to limit the [p]arties from presenting any and all relevant evidence to the Court at sentencing.” (Id. ¶ 8.)

         The Plea Agreement noted the Government's belief that Petitioner-Defendant's properly calculated criminal history score would place him in CHC V, but emphasized that this was not a stipulation, and further, the parties agreed that the actual criminal history “will be determined by the Court” and that any determination other than CHC V “shall not be a basis for either party to withdraw from this Plea Agreement.” (Id. ¶ 8(d).) Both parties also reserved their rights to move for departures from the applicable Guidelines and to argue for a sentence outside them, as well as their rights to oppose such motions made by the opposing party. (Id. ¶ 8(i).)

         The parties stated their understanding that while they were bound by their stipulations with respect to Guidelines calculations, the Court was not. (Id. ¶ 9.) The parties agreed that the Court “may make its own determination regarding the applicable guideline factors and the applicable [CHC], ” and “may also depart from the applicable Guidelines.” (Id.) Even if the Court determined that the applicable Guidelines calculations or Petitioner-Defendant's CHC were different from those calculated by the parties, they agreed that they could not withdraw from the Plea Agreement and that this Court's determinations would govern the sentence imposed. (Id.) Petitioner-Defendant waived his right to appeal his sentence if the Court imposed 210 or fewer months of imprisonment. (Id. ¶ 14.)

         II. Change of Plea Hearing

         Petitioner-Defendant appeared at a change of plea hearing before this Court to enter his guilty plea on the same day he signed the Plea Agreement. (Doc. No. 65 (“Plea Hearing”).) After swearing an oath to tell the truth, Petitioner-Defendant affirmed that he had had enough time to consult with his lawyer, Attorney Bruno. (Plea Hearing at 3.) Petitioner-Defendant also stated that he was satisfied with the services and representation provided by Attorney Bruno up to that point, saying “Yeah, I think Bruno is great.” (Id. at 4.)

         Petitioner-Defendant's own sworn statements confirmed that he understood all key aspects of the Plea Agreement. When asked by the Court, he answered that he signed the final page of the Plea Agreement voluntarily with no inducement other than what was contained in the writing itself. (Id. at 6.) Petitioner-Defendant stated he understood that with his plea, he would be sentenced to a maximum of twenty years in prison. (Id. at 8.) The Government asked that the Court clarify that Count 5 involved an offense in violation of the Hobbs Act, which would call for mandatory restitution upon conviction. (Id. at 12.) The Court confirmed this and explained the restitution issues in this case, then asked Petitioner-Defendant if he had any questions. (Id. at 13.) Petitioner-Defendant answered that he would do what he needed to do. (Id.) As this Court continued to review the Plea Agreement with him in detail, Petitioner-Defendant stated that he understood the differences between the parties' positions, and that each side had the right “to argue fully what they think the fair sentence is, ” but that “neither party can back out of the plea agreement.” (Id. at 15-18.) At one point, Petitioner-Defendant expressed confusion about how the Guidelines offense level would factor into his ultimate sentence. (Id. at 21.) The Court explained to Petitioner-Defendant that there was no minimum sentence for the counts to which he was pleading guilty and that both parties were free to argue for a sentence below, within, or above the Guidelines range. (Id. at 21-22.) The Court went on to reiterate, however, that even if Petitioner-Defendant disagreed with the sentence imposed, “neither side can back out” of the Plea Agreement. (Id. at 23.) Petitioner-Defendant said that he understood. (Id.)

         The Court reviewed the waiver provision of the Plea Agreement at length, and Petitioner-Defendant stated that he understood that he was giving up his right to appeal if he was sentenced to a term of imprisonment of 210 months or less. (Id. at 24.) Before Petitioner-Defendant entered his guilty plea, this Court asked him if there was any part or term of the Plea Agreement, whether previously mentioned or not, that he wanted to ask about. (Id. at 25.) Petitioner-Defendant answered, “No, Your Honor.” (Id.) Counsel for the Government asked to “make it crystal clear” that Petitioner-Defendant understood that by entering into the Plea Agreement, he was giving up his right to appeal “any sentence of a term of imprisonment of 210 months or less . . . regardless of what the guideline factors end up being.” (Id. at 26-27.) Again, Petitioner-Defendant said he understood and had no questions about his waiver of appeal rights. (Id. at 27-28.)

         Attorney Bruno then asked to make a clear record of Petitioner-Defendant's understanding about the collateral consequences of his plea. (Id. at 28.) Attorney Bruno reminded Petitioner-Defendant that the two of them met “a bunch of times” to discuss the enhancements sought by the Government and that Petitioner-Defendant had done research on ...

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