United States District Court, N.D. Mississippi, Delta Division
MICHAEL P. MILLS, Chief District Judge.
This matter comes before the court on the motion of Michael Starnes to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. The government has responded to the motion, and the matter is ripe for resolution. For the reasons set forth below, the instant motion to vacate, set aside, or correct sentence will be denied.
On September 8, 2003, a jury convicted Michael Starnes of all ten counts of a superseding indictment charging him with six drug distribution and four firearm related offenses. (Appeal Vol. 14, pp.3-6). After being convicted on all counts, Starnes moved for a JNOV and a new trial; however, both requests were denied. Id. The Probation Service conducted a pre-sentence investigation and determined Starnes' base offense level to be 43 and his criminal history category II, which called for a Guideline range of 100 years for 7 of the charges - and an additional minimum of 45 years for the three 924(c) offenses (for drug-related firearms offenses). Application of the Sentencing Guidelines thus yielded a sentence of 145 years imprisonment. (Vol. 14, pp. 18-19). The maximum Guideline sentence available to the court was three consecutive life sentences plus 100 years imprisonment. Id . At his original sentencing, Starnes objected among other things, to the drug quantity used to establish his base offense level and the district court overruled his objections. (Vol. 14, p. 12). The court sentenced Starnes to 145 years imprisonment, the lower end of the Guideline range. (Vol. 14, p. 19).
Starnes appealed his sentence, arguing that his case should be remanded for sentencing in accordance with United States v. Booker, 543 U.S. 220 (2005). Starnes' original sentencing had taken place before the Supreme Court issued its decision in Booker, which rendered the United States Sentencing Guidelines advisory. Starnes further argued that he should not be held accountable for possessing the machine gun (count four) and that the three 924(c) counts were impermissibly tied to the same drug offense and constituted a violation of the prohibition against double jeopardy. Starnes also argued that the length of his pretrial detention was unconstitutional and argued Assistant United States Attorney Charlie Spillers should have been disqualified from the case. The government conceded the double jeopardy issue and recommended dismissal of two of the 924(c) counts - and that because of Booker, the case should be remanded for re-sentencing under the newly-advisory guidelines. The United States contested Starnes' other issues.
The Fifth Circuit agreed with the government, vacated Starnes' sentences, and remanded the case to the district court for re-sentencing with instructions to dismiss two of the three 924(c) counts. United States v. Starnes, 157 Fed.Appx. 687 cert. denied, 127 S.Ct. 1922 (2007) (unpublished). The Fifth Circuit ordered that Starnes be re-sentenced under the remaining 924(c) count and upheld the convictions and judgment of the district court in all other respects. Starnes at 696.
On September 7, 2007, the district court re-sentenced Starnes, who again objected to the drug quantity used to calculate his base offense level. Citing the mandate rule and the case of United States v. Pinero, 470 F.3d 200 (5th Cir. 2006), the district court declined to revisit the drug quantities used to determine Starnes' original sentence. (Supplemental Record on Appeal, Vol. 2, p. 5-6). The district court calculated Starnes' new guideline range at 130 years based upon the same underlying facts from the original sentencing, but for the two dismissed firearms charges. (Supplemental Record on Appeal, Vol. 2, p. 59). Under Booker, the Federal Sentencing Guidelines had become advisory, not mandatory, and the court used the Fifth Circuit's instruction on the 924(c) counts to resentence Starnes to a total of 50 years imprisonment. Id. At 60. The court applied the 30 year mandatory sentence for Count 5 (the machine-gun charge) in accordance with 18 U.S.C. § 924(c)(1)(B)(2) and imposed a sentence of 20 years for the remaining charges to reach the 50 year total sentence. (Supplemental Record on Appeal, Vol. 2, p. 61). Starnes then appealed the new sentence of 50 years to the Fifth Circuit Court of Appeals. United States v. Starnes, 2010 WL 3049635 (5th Cir.) The Fifth Circuit lowered Starnes' sentence on three of the charges because the court, through a scrivener's error, had imposed a sentence greater than the statutory maximum on those charges. The Fifth Circuit otherwise affirmed Starnes' sentence, and the correction did not change Starnes' overall term of incarceration, which remained 50 years.
Starnes then filed the instant motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. In the instant motion, Starnes sets forth the following claims for relief:
(a) Counsel failed to object at sentencing to the 30 year sentence the court imposed for Count Five.
(b) Counsel failed to object to the four-level enhancement Starnes received for his role in the offense and failed to raise the issue on appeal.
(c) Counsel failed to object to the two-level enhancement Starnes received at sentencing for obstruction of justice.
(d) Counsel failed to object to the court's decision to categorize Starnes' 2 prior marijuana convictions as previous offenses for determining offense lever, rather than relevant conduct, during sentencing.
(e) Counsel failed to interview and call several witnesses Starnes wished to present during trial.
(f) Counsel failed to challenge the amount of drugs attributed to Starnes as relevant conduct as set forth in the Presentence Investigation Report.
(g) Counsel failed to object to the government's decision to charge separate counts of conspiracy - one for marijuana and one for cocaine.
As discussed below, none of these claims has merit.
Evidence Introduced at Trial
Starnes was convicted of all ten counts of a superseding indictment charging him with six drug distribution and four firearm-related offenses. On direct appeal the government conceded that two of the firearm-related offenses should be dismissed, and the court dismissed those charges on remand. The trial evidence proved that the Unknown Vice Lords street gang ("UVL") conducted a drug distribution operation at 630 Lincoln Place in Clarksdale, Mississippi, from on or about October 2001 through on or about June 12, 2002. As charged in Count Two of the Indictment and proved at trial: "It was part of the drug conspiracy that the Unknown Vice Lords (UVL) street gang would defend its drug territory against other street gangs, and would have weapons available to defend its territory and drug trafficking activities."
Each of the offenses in this case was committed by Starnes while he was the leader "Four Star Imperial Elite" of the Unknown Vice Lords street gang in Clarksdale, Mississippi. The evidence at trial showed that Starnes directed the gang's drug operation. (Vol. 8, pp. 302, 310, 355). Under Starnes' leadership, the gang members protected UVL gang and drug territory ("turf") with weapons and violence. (Vol. 8, pp. 375-79). Led by Starnes, members of the gang distributed crack cocaine and marijuana from their headquarters, a small blue shotgun house known as "The Blue Spot." (Vol. 8, pp. 301-03, 349). "The Blue Spot" had a doorbell at the rear bathroom window, which was covered by a tinted film that let those in the bathroom see outside, but prevented those outside from seeing in. (Vol. 8, p. 302). Patrons would ring the doorbell, and Starnes or one of the other gang members would then sell crack cocaine and marijuana out of the back window. (Vol. 8, pp. 302, 363). Trial testimony established that the doorbell rang day and night, and photographs offered at trial showed a well-worn path to the rear window. (Vol. 8, pp. 302, 363).
Starnes and the UVLs used a fully automatic AR-15 rifle, as well as many other rifles and pistols, to protect the UVL drug operation and to carry out attacks on rival gangs. (Vol. 8, pp. 375-79; Vol. 11, pp. 951-62). Starnes also provided gang members with two-way radios so they could act as lookouts to warn of the approach of law enforcement officers or rival gang members. (Vol. 8, p. 368).
In 2002, Starnes had Freddie Paschal and his girlfriend, both drug users, move into the house to assist in the drug distribution. Paschal knew many potential drug customers and brought those customers with him. (Vol. 2, 301-302). Paschal and his girlfriend lived in the house for about 2½ months. The doorbell rang night and day during his stay. (Vol. II, 303). Paschal's job was to go to the back window and see what the customers wanted and who they wanted to see. (Vol 2, 303-04). Paschal would take orders for crack at the rear window and would let Starnes or Burks know when a customer asked for them. (Vol. 2, 304). Starnes gave Paschal orders about selling crack and paid Paschal in crack cocaine. (Vol II, 308-10).
Firearms were part of the UVL drug conspiracy. Weapons were available to retaliate against attacks on members of the UVL drug organization, to defend UVL gang territory, and to protect UVL drugs and drug proceeds against possible robberies. By having firearms available to retaliate against attacks, the UVLs helped protect their members, their organization, and the activities of the UVLs, including drug trafficking. One of the main rivals to the UVLs was the Mafia Insane Vice Lords street gang, and during 2001 and 2002, the UVLs possessed weapons and conducted armed attacks against rival gang members. (Vol. 11, 954-961). The availability of weapons and the armed attacks served to protect UVL members and the drug operation. UVL weapons possession and violence were inherent to the continuation of the gang's drug operations.
On the night of September 25, 2001, Burks, the UVL Enforcer, was shot and wounded. The UVLs believed the Mafia Insane Vice Lords carried out the attack. (Vol. 11, 953-954). Starnes told the UVLs, "We're going to get some get back.'" (Vol. 11, 954). Early the next morning, Starnes led a retaliatory attack. (Vol. 11, 955-961). Starnes and other UVL members, including Terrian Pate, Anthony Jones and Carlos Foxx, armed themselves with various weapons, including an AK rifle, a shotgun and handguns, and then they drove and parked near a house trailer in Clarksdale. (Vol. 11, 954-959). They approached the house trailer on foot, and, on Starnes' command, fired into it numerous times with pistols, the AK rifle, and the shotgun, wounding a man who was sleeping inside. (Vol. 11, 952-964). After the attack, Starnes and the others fled from the scene, dropped off the rifle and shotgun at The Blue Spot, and picked up other firearms while the others kept the pistols they had used in the attack. (Vol. 11, 961-962).
They went to the nearby Hicks motel where police investigating the shooting found Starnes and five other UVLs in a room with six handguns. (Vol. 11, 963-965). The six loaded weapons included three.45 caliber pistols, one.38 caliber pistol, and two 9 mm pistols. One of the weapons had an obliterated serial number, and another had what was then a higher-capacity law-enforcementonly magazine. The six weapons were described in count six of the Superseding Indictment. The other UVLs in the motel room with the weapons included Terrian Pate, Frederick Johnson, and Anthony Jones. (Vol. 11, 962-963). The retaliatory attack and the possession of the weapons at the motel following the attack served to protect the UVLs and allowed them to continue their activities, including drug trafficking.
On September 30, 2001, UVL member Robert Cochran, using a.45 caliber pistol, shot several times at several people who were riding by in a car. (Vol. 9, 501). Clarksdale police responding to the shooting attempted to stop a car driven by Starnes and occupied by two other men, including UVL member Terrian Pate. (Vol. 9, 503-504). Starnes refused to stop his car and was chased by the police until he crashed the car. (Vol. 9, 503-504). He then jumped out, attempted to escape on foot, and was captured. Id. In Starnes' car, police found seven weapons, including an AK-style 7.62 mm semiautomatic ...