United States District Court, D. Kansas
KATHRYN H. VRATIL, District Judge.
On August 26, 2011, a jury found defendant guilty of conspiracy to distribute and possess with intent to distribute more than five kilograms of cocaine and more than 280 grams of cocaine base, maintaining and conspiring to maintain a drug-involved premises within 1, 000 feet of a school, possession with intent to distribute and distribution of cocaine base within 1, 000 feet of a school, and use of a cell phone in causing or facilitating a drug felony. See Verdict (Doc. #572). On January 23, 2012, the Court sentenced defendant to 420 months in prison. See Judgment In A Criminal Case (Doc. #691). This matter is before the Court on defendant's Motion Under 28 U.S.C. § 2255 To Vacate, Set Aside, Or Correct Sentence By A Person In Federal Custody (Doc. #849) filed June 6, 2014. For reasons stated below, the Court overrules defendant's motion.
On July 27, 2011, a grand jury charged Willie F. Ford, Marcus Quinn, Mark Brooks, Antonio Quinn, Steven Quinn, Lavaughn J. Brown, Andrew J. Price, Keyaun C. James, Daniel Cardenas Garcia, Adriana A. Melendez, Polly Smith and Janis Diggins with conspiracy to distribute and possess with intent to distribute more than five kilograms of cocaine and more than 280 grams of cocaine base. See Second Superseding Indictment (Doc. #514), Count 1. The grand jury also charged Ford, Marcus Quinn, Brooks, Antonio Quinn, Steven Quinn, Brown, Price and James with conspiracy to maintain a drug-involved premises at 2632 North 20th Street, within 1000 feet of a school. See id., Count 4.
On direct appeal, the Tenth Circuit summarized the trial testimony as follows:
Ford and others used three houses in Kansas City, Kansas, for selling and storing drugs. The main drug house, located at 2632 North 20th Street, known as "the Spot, " sold drugs day and night. Drugs were also sold from two other houses near the Spot. In addition to the three houses used for selling drugs, Ford regularly stored drugs intended for sale at the Spot at his parents' house nearby. He brought drugs from his parents' house to the Spot numerous times at coconspirator Andrew Price's request.
Following an extensive investigation of the drug trafficking operation, on October 13, 2010, law-enforcement officials made coordinated arrests of the participants and searches of the houses used for selling drugs. As FBI agents entered the Spot, several coconspirators ran out the back door. Two of them carried firearms and three carried large amounts of cash. Ford was not among those arrested at the Spot. A search of the Spot produced video cameras and a monitor, 27.8 grams of crack, 79.8 grams of marijuana, an electronic scale, packaging materials, and cell phones. Searches of the other drug houses also produced large amounts of cocaine and crack.
Ford was charged in a superseding indictment with conspiring to distribute and distributing cocaine and crack between August 29, 2007 and October 13, 2010, and other charges. He was indicted with seventeen others, and stood trial with codefendants Marcus L. Quinn and Mark A. Brooks pursuant to a second superseding indictment. Four other codefendants entered guilty pleas and testified at the trial: LaVaughn "Jason" Brown, Polly Smith, Adrian Melendez, and Daniel Cardenas Garcia.
The testimony of Brown and Smith established that the persons permitted to sell drugs from the Spot were part of an "inner circle" that included Ford. Although Antonio Quinn was the main person who decided who could sell from the Spot, all members of the inner circle had some say in the matter. Brown testified that the inner-circle members were "all the same, " meaning a buyer could get drugs from him or any of the others. R. Vol. 2 at 864-65. The inner circle contributed to pay the bills at the Spot. Some members of the conspiracy had regular jobs, but Ford did not.
Several witnesses placed Ford at the Spot on a regular, if not constant, basis. One witness testified that she had purchased crack from him more than 25 times. Several controlled drug buys were completed at the Spot; one of them from Ford. The government's evidence included transcripts of numerous telephone calls between coconspirators recorded from wire intercepts on [Antonio] Quinn's telephone. During calls between [Antonio] Quinn and Ford, the two discussed other conspirators and the drug business. In particular, they used the conspiracy's code words, such as "two-door" and "four-door, " to describe drug quantities. During one call, Ford advised [Antonio] Quinn that the "kick-in boys [meaning SWAT teams] have been riding, " id. at 1276, and [Antonio] Quinn asked who was "up there, " to which Ford responded by naming two other coconspirators, id. Furthermore, other coconspirators referred to Ford in phone calls discussing the drug trafficking organization.
Testifying coconspirator Adrian Melendez stated that he supplied cocaine to [Antonio] Quinn. He had observed [Antonio] Quinn hand to Ford cocaine that he had supplied to Quinn. Melendez saw [Antonio] Quinn give Ford cocaine "six, seven times." Id. at 1935. In addition, coconspirator Daniel Cardenas Garcia testified that [Antonio] Quinn told him that he supplied Ford cocaine, and that [Antonio] Quinn sometimes delayed paying Garcia because he was awaiting payment from others, including Ford, before paying Garcia.
Order And Judgment (Doc. #836) filed May 20, 2013 at 2-4 (footnote omitted).
On August 26, 2011, a jury found Ford guilty on each count. See Verdict (Doc. #572). Defendant's total offense level was 42, with a criminal history category VI, resulting in a sentencing range of 360 months to life in prison. On January 23, 2012, the Court sentenced defendant to 420 months in prison. See Judgment In A Criminal Case (Doc. #691). Forrest A. Lowry represented defendant throughout this proceeding.
On June 6, 2014, defendant filed a motion to vacate his sentence under 28 U.S.C. § 2255. Liberally construed, defendant's motion alleges that Lowry provided ineffective assistance because (1) he did not object to the indictment as multiplicitous, (2) he did not object at trial or sentencing to the failure of the indictment to set forth a specific drug type and quantity; (3) he did not effectively object to the enhancement of ...