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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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