Order and Reasons — United States v. Travis J. Every, No. 08-01 (Dkt. 74, E.D. La.)
Summary
Judge Martin L. C. Feldman of the Eastern District of Louisiana denied Travis J. Every's motion under 28 U.S.C. § 2255 to vacate a drug sentence and dismissed the habeas petition with prejudice, in an order dated July 5, 2018. The order recounts that Every pled guilty on March 20, 2009 to a six-count superseding bill of information over sales of cocaine base and cocaine hydrochloride, was sentenced to 300 months, and received clemency from President Obama on January 19, 2017 that reduced the sentence to 175 months. The court held that the plea agreement's waiver of collateral challenges barred the motion and that, in any event, a prior Louisiana cocaine distribution conviction qualified for the 21 U.S.C. § 851 enhancement. It rejected the false-testimony claim on drug weights as frivolous and found Johnson v. United States inapplicable because Section 851 has no residual clause.
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
UNITED STATES OF AMERICA CRIMINAL ACTION
V. NO. 08-01
TRAVIS J. EVERY SECTION "F"
ORDER AND REASONS
Before the Court is Travis J. Every’s motion to vacate, set
aside, or correct a sentence. For the following reasons, the motion
is DENIED.
Background
Travis J. Every, is a federal prisoner currently serving a
175 month sentence in federal prison. On March 20, 2009, Every
pled guilty before this Court to a six-count bill of information
involving the distribution of illegal substances. Every now
submits a habeas corpus motion under 28 U.S.C. § 2255 seeking post-
conviction relief from his sentence.
Every was involved in three hand-to-hand purchases of illegal
substances, totaling a cocaine base net weight of 262.8 grams and
a cocaine hydrochloride net weight of 22.4 grams. The drugs were
sold to a confidential informant working for the Bureau of Alcohol,
Tobacco, Firearms, and Explosives. On January 4, 2008, Every was
indicted by a federal grand jury on a four-count indictment for
violations of the Federal Drug Controlled Substances Act. Counts
1
1, 3, and 4 were for knowingly and intentionally distributing
cocaine base, and Count 2 was for knowingly and intentionally
distributing cocaine hydrochloride. Later, the Federal Bureau of
Investigation discovered through a wiretap investigation that,
prior to his 2008 indictment, Every distributed and sold
approximately two and a half kilograms of cocaine hydrochloride to
a co-conspirator.
In a plea agreement, Every pled guilty to a six-count
superseding bill of information. The two additional counts were
for the predicate offense determined by the FBI. Every faced a
mandatory life sentence under 21 U.S.C. § 851(b)(1)(A) because of
his criminal history of two prior felony drug convictions. In
exchange for the plea, the government agreed to file only one
Section 851 bill, decreasing his mandatory minimum to 20 years of
incarceration. As a part of the agreement, Every waived his right
“to contest his conviction and/or his sentence in any collateral
proceeding, including proceedings under Title 28, United States
Code, Section 2241 and . . . Section 2255.” But, he reserved the
right to appeal “any punishment imposed in excess of the statutory
maximum.” The Court sentenced Every to 25 years, or 300 months, in
prison followed by 10 years of supervised release.
On January 19, 2017, President Obama granted Every clemency.
His sentence was reduced to 175 months with 10 years of supervised
2
release. On June 6, 2016, Every filed this 28 U.S.C. § 2255 motion
to vacate, set aside, or correct a sentence.
I.
A petitioner may file a habeas corpus petition pursuant to 28
U.S.C. § 2255, claiming a right to release from custody on the
ground that a sentence ordered by a federal court "was imposed in
violation of the Constitution or the laws of the United States."
28 U.S.C. § 2255. 1 “Relief under 28 U.S.C. § 2255 is reserved for
transgressions of constitutional rights and for a narrow range of
injuries that could not have been raised on direct appeal and
would, if condoned, result in a complete miscarriage of justice.”
United States v. Gaudet, 81 F.3d 585, 589 (5th Cir. 1996)(citations
and internal quotation marks omitted). A claim of error that is
neither constitutional nor jurisdictional is not cognizable in a
section 2255 proceeding unless the error constitutes a
“fundamental error” that “renders the entire proceeding irregular
or invalid.” United States v. Addonizio, 442 U.S. 178, 185 (1979).
II.
Every’s post-conviction motion centers on a sentence
enhancement premised by his predicate drug offense under 21 U.S.C.
1 Section 2255 identifies only four bases that might support a
motion to vacate: (1) the sentence was imposed in violation of the
Constitution of laws of the United States; (2) the Court was
without jurisdiction to impose the sentence; (3) the sentence
exceeds the statutory maximum sentence; or (4) the sentence is
“otherwise subject to collateral attack.” Id.
3
§ 851. He claims his conviction to be based on this
“constitutionally vague” statute. Every contends that the
applicability of Section 851’s residual clause to conduct other
than that described in the enumerated offenses of Section 851 is
unconstitutional in light of the United States Supreme Court’s
decision of Johnson v. United States, 135 S. Ct. 2551 (2015). This
was later declared to be retroactive on collateral review. Welch
v. United States, 136 S. Ct. 1257 (2016). As a result, Every
asserts his conviction to be unlawful and requests relief or a
hearing.
He states two grounds of relief: (1) his predicate drug
offense does not constitute convictions resulting in a sentence of
one year or more, meaning it no longer prompts an enhancement under
21 U.S.C § 851; and (2) his sentence was enhanced to require an
aggravated mandatory sentence due to the alleged drug amount, which
was based upon false testimony and information, and then was
arbitrarily imposed. The Court addresses each contention and finds
that he is not entitled to relief on any of these grounds.
A.
The Court "may entertain and determine such motion without
requiring the production of the prisoner at the hearing." 28
U.S.C. § 2255. After reviewing the briefings and the record of
the case, this Court determines that there is no need for an
evidentiary hearing; this case will be decided on the pleadings.
4
See 28 U.S.C. § 2255; United States v. Cervantes, 132 F. 3d 1106,
1110 (5th Cir. 1998) (stating that if the defendant does not meet
their burden of proof, then a hearing is unnecessary); United
States v. Smith, 915 F.2d 959, 964 (5th Cir. 1990).
B.
Every asserts that his predicate offense does not trigger a
21 U.S.C. § 851 sentence enhancement because his drug conviction
does not meet the requirements of a year or more. As a preliminary
matter, Every is barred from contesting his sentence in a post-
conviction proceeding under 28 U.S.C. § 2255 because he waived his
right to do so in his plea agreement. 2 In United States v. Wilkes,
the Fifth Circuit held that a defendant can waive his right to
appeal his sentence under 28 U.S.C. § 2255 in a plea agreement, as
long as the waiver is both knowing and voluntary. 20 F.3d 651, 653
(5th Cir. 1994). For a waiver to be knowing and voluntary, a
defendant must fully understand “the nature of a right and how it
would likely apply in general in the circumstances – even though
the defendant may not know the specific detailed consequences.”
2 However, Every reserved his right to appeal any punishment
imposed in excess of the statutory maximum. According to the
Presentence Investigation Report (PSR), the maximum sentence for
Every on Counts 1, 3, 4, and 5 was life in prison; the maximum for
Count 2 was 30 years, or 360 months. Every was sentenced to 25
years, or 300 months, which is much less than the maximum of all
counts. Therefore, his reserved right to appeal excess sentencing
does not apply.
5
United States v. Ruiz, 536 U.S. 622, 629 (2002). See also United
States v. Baty, 980 F.2d 977, 979 (5th Cir. 1992).
In determining whether the waiver was knowing and voluntary,
the Court will consider whether the waiver was addressed in the
hearing and if the defendant asked questions about it. United
States v. Cantu, 273 F.3d 393, at *1 (5th Cir. 2001). However, if
the defendant read and understood the plea agreement, the defendant
will be held to what he agreed upon, regardless of whether the
Court specifically warned him concerning the waiver of appeal. Id.
(citing United States v. Portillo, 18 F.3d 290, 293 (5th Cir.
1994)). Additionally, if the defendant does not allege in the
petition, or the record contains no indication that the waiver was
not knowing and voluntary, the Court will continue to hold the
defendant to the bargain he made. Portillo, 18 F.3d at 292-93. See
also United States v. Potter, No. 13-141, 2015 WL 3486446 at *1
(E.D. La. June 1, 2015).
In Every’s post-conviction motion, he failed to make any claim
that his waiver of post-conviction rights was made either
unknowingly or involuntarily. This Court advised Every of his
appeal rights in detail. Therefore, the Court presumes that Every
knowingly and voluntarily signed the plea agreement, making the
agreement enforceable and his claim barred.
Even if Every did not waive his right to post-conviction
appeals under Section 2255, his claim that his predicate offense
6
does not qualify for a 21 U.S.C § 851 enhancement must fail. Every
contends that his predicate offense did not constitute a sentence
resulting in one year or more, which means it no longer qualifies
for a sentence enhancement under Section 851. Every was previously
convicted of the distribution of cocaine in violation of Louisiana
law. LA R.S. 40:967(A). He was sentenced to five years of
imprisonment. Under 21 U.S.C § 841, his prior criminal conduct
qualifies as a “prior felony drug offense,” punishable by
imprisonment for more than one year. See also 21 U.S.C. § 802 (44)
(defining “felony drug offense” with regard to conduct involving
narcotic drugs, stimulants, and other substances). Louisiana law
mandates that anyone who knowingly and intentionally distributes
illegal substances will be subject to imprisonment for no less
than a year or more. LA R.S. 40:967. Every pled guilty to this
charge in Count 6 of the superseding bill of information. Every is
subject to a year or more of prison for this charge and therefore
subject to sentence enhancements under 21 U.S.C. § 851.
C.
The petitioner next contends that his sentence was enhanced
to require an aggravated mandatory sentence due to the alleged
drug amount, which was based upon false testimony and information,
and was arbitrarily imposed. The Court finds his claim meritless.
He failed to raise a false testimony claim at his plea hearing.
7
The Supreme Court has held that due process is violated when
the government knowingly gives false testimony to obtain a
conviction and fails to correct it. Napue v. Illinois, 360 U.S.
264, 269-70 (1959). In order for this claim to be proven, Every
must show the Court that: “1) the statements are shown to be
actually false; 2) the prosecution knew that they were false; and
3) the statements were material.” Thompson v. Cain, 161 F.3d 802,
808 (5th Cir. 1998); see also Tucker v. Johnson, 242 F.3d 617 (5th
Cir. 2001).
Here, Every fails to meet this test. There was no claim of
false testimony. The factual basis is the only document that
provides any information regarding the alleged drug weight. Prior
to the re-arraignment, Every and his counsel reviewed this factual
basis and Every confirmed under oath the correctness of the
information and signed the document. Because Every did not attach
any further material evidence to prove the drug weights to be
falsified information, the Court rejects this claim. It is
frivolous.
D.
Finally, the petitioner argues that his conviction under the
residual clause of 21 U.S.C. § 851 is “unconstitutionally vague”
under Johnson. In Johnson, the Court held that the residual clause
of the Armed Career Criminal Act (ACCA) was vague because the
“indeterminacy of the wide ranging inquiry” of the residual clause
8
prevents fair notice to the defendants of their increased sentence
and “invites arbitrary enforcement by judges,” violating the
defendant’s right of due process. Johnson, 135 S. Ct. at 2257-58.
In a following case, the Court held that Johnson’s holding is
only applicable to (1) the ACCA’s residual clause; and (2) a
closely worded residual clause in the federal crimes code’s
definition of “crime of violence.” 18 U.S.C. § 16(b); United States
v. Mitchell, No. CR 10-126, 2018 WL 1941787 (E.D. La. Apr. 25,
2018); See also Beckles v. United States, 137 S. Ct. 886 (2017);
Sessions v. Dimaya, 1138 S. Ct. 1204, 1210 (2018).
Johnson does not apply here because Every was not sentenced
pursuant to the ACCA or any similar residual clause. Rather, he
was sentenced by an agreement made under Sections 841 and 851.
Every’s sentence was not enhanced under a vague residual clause
trying to define “violent crime.” In fact, he was convicted for a
felony drug charge, not a violent crime, which is why his sentence
enhancement was based under Section 851. Section 851 does not
contain a residual clause and “felony drug offense” is defined
under 21 U.S.C. § 802(44), not 18 U.S.C. § 16(b) 3. Mitchell, 2018
3 18 U.S.C. § 16(b) defines “crime of violence” as an offense that
involves use, attempt, or threat of physical force or involves a
“substantial risk of physical force against a person or property
of another.”
9
WL 1941787 at 3-4. Because the petitioner’s claim fails on the
merits, the Court must reject it.
Accordingly, IT IS ORDERED that Travis J. Every’s 28 U.S.C.
§ 2255 motion to vacate, set aside, or correct sentence is DENIED.
Every’s habeas petition is dismissed with prejudice.
New Orleans, Louisiana, July 5, 2018
______________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE
10
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