IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

RODERICK KEITH :

KIMBROUGH,

:

Petitioner,

:

vs. CIVIL ACTION NO. 09-0702-WS-C

:

UNITED STATES OF CRIMINAL ACTION NO. 08-0150-WS

AMERICA, :

Respondent.

REPORT AND RECOMMENDATION

Petitioner, Roderick Keith Kimbrough, a federal prison inmate

proceeding pro se, has filed a motion to vacate, set aside or correct his

sentence pursuant to 28 U.S.C. § 2255 (Doc. 35). This action has been referred

to the undersigned for entry of a report and recommendation pursuant to 28

U.S.C. § 636(b)(1)(B). Following consideration of all relevant pleadings in this

case, it is recommended that Kimbrough’s § 2255 motion be denied and that

it be found he is not entitled to a certificate of appealability. 

FINDINGS OF FACT

1. On April 15, 2008, Kimbrough was charged, by criminal

complaint, with possession with intent to distribute crack cocaine on February

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2

8, 2008 and March 31, 2008. (Doc. 1) On April 25, 2008, a two-count

indictment charged Kimbrough with possession with intent to distribute 3.8

grams of crack cocaine on February 8, 2008, in violation of 21 U.S.C. §

841(a)(1), and possession with intent to distribute 3.2 grams of crack cocaine

on March 31, 2008, in violation of 21 U.S.C. § 841(a)(1). (Doc. 3)

2. On June 13, 2008, Kimbrough, through his attorney, William

Scully, Esquire, filed notice of his intent to change his plea to guilty. (Doc. 19)

3. On June 21, 2008, the parties filed a plea agreement and factual

resume with the Court. (Doc. 21) The plea agreement reads, in relevant part,

as follows:

PLEA AGREEMENT

The defendant, RODERICK KEITH KIMBROUGH,

represented by his counsel, and the United States of America

have reached a Plea Agreement in this case, pursuant to Rule 11

of the Federal Rules of Criminal Procedure, the terms and

conditions of which are as follows:

RIGHTS OF THE DEFENDANT

1. The defendant understands his/her rights as

follows:

a. To be represented by an attorney;

b. To plead not guilty;

c. To have a trial by an impartial jury;

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3

d. To confront and cross-examine witnesses

and to call witnesses and produce other evidence in his/her

defense;

e. To not be compelled to incriminate

himself/herself.

WAIVER OF RIGHTS AND PLEA OF GUILTY

2. The defendant waives rights b through e, listed

above, and pleads guilty to Count One of the Indictment. Count

One charges a violation of Title 21 United States Code, Section

841(a)(1), possession with the intent to distribute crack cocaine.

...

4. The defendant expects the Court to rely upon

his/her statements here and his/her response to any questions

that he/she may be asked during the guilty plea hearing.

5. The defendant is not under the influence of

alcohol, drugs, or narcotics. He/She is certain that he/she is in

full possession of his/her senses and mentally competent to

understand this Plea Agreement and the guilty plea hearing

which will follow.

6. The defendant has had the benefit of legal counsel

in negotiating this Plea Agreement. He/She has discussed the

facts of the case with his/her attorney, and his/her attorney has

explained to the defendant the essential legal elements of the

criminal charge(s) which has/have been brought against him/her.

The defendant’s attorney has also explained to the defendant

his/her understanding of the United States’ evidence.

7. The defendant understands that the United States

has the burden of proving each of the legal elements of the

criminal charge(s) beyond a reasonable doubt. The defendant

and his/her counsel have discussed possible defenses to the

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4

charge(s). The defendant believes that his/her attorney has

represented him/her faithfully, skillfully, and diligently, and

he/she is completely satisfied with the legal advice of his/her

attorney.

8. A separate document, entitled Factual Resume,

will be submitted to the Court as evidence at the guilty plea

hearing. The Factual Resume is incorporated by reference into

this Plea Agreement. The defendant and the United States agree

that the Factual Resume is true and correct. 

9. This plea of guilty is freely and voluntarily made

and is not the result of force, threats, promises, or

representations apart from those set forth in this Plea

Agreement. There have been no promises from anyone as to the

particular sentence that the Court may impose. The defendant

avers that he/she is pleading guilty because he/she knows that

he/she is guilty.

PENALTY

10. The maximum penalty the Court could impose as

to Count One of the Indictment is:

a. 20 years imprisonment;

b. A fine not to exceed $1,000,000.00[];

c. A term of supervised release of 5 years,

which would follow any term of imprisonment. If the defendant

violates the conditions of supervised release, he/she could be

imprisoned for the entire term of supervised release; and

d. A mandatory special assessment of

$100.00.

SENTENCING

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11. The Court will impose the sentence in this case.

The United States Sentencing Guidelines apply in an advisory

manner to this case. The defendant has reviewed the application

of the Guidelines with his/her attorney and understands that no

one can predict with certainty what the sentencing range will be

in this case until after a pre-sentence investigation has been

completed and the Court has ruled on the results of that

investigation. The defendant understands that at sentencing, the

Court may not necessarily sentence the defendant in accordance

with the Guidelines. The defendant understands that he/she will

not be allowed to withdraw his/her guilty plea if the applicable

guideline range is higher than expected, if the Court departs

from the applicable advisory guideline range, or if the Court

imposes a sentence notwithstanding the Guidelines.

12. The United States may provide all relevant

sentencing information to the Probation Office for purposes of

the pre-sentence investigation. Relevant sentencing information

includes, but is not limited to, all facts and circumstances of this

case and information concerning the defendant’s conduct and

background.

13. The defendant understands that this Plea

Agreement does not create any right to be sentenced in

accordance with the Sentencing Guidelines, or below or within

any particular guideline range, and fully understands that

determination of the sentencing range or guideline level, or the

actual sentence imposed, is solely the discretion of the Court.

14. Both the defendant and the United States are free

to allocute fully at the time of sentencing.

.. .

UNITED STATES’ OBLIGATIONS

16. The United States will not bring any additional

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charges against the defendant related to the facts underlying the

Indictment and will move to dismiss Count Two of the

Indictment at sentencing. This agreement is limited to the United

States Attorney’s Office for the Southern District of Alabama

and does not bind any other federal, state, or local prosecuting

authorities.

17. The United States will recommend to the Court

that the defendant be sentenced at the low end of the applicable

advisory sentencing guideline range as determined by the Court.

APPLICATION OF U.S.S.G. § 5K1.1 AND/OR FED.R.CRIM.P. 35

18. If the defendant agrees to cooperate with the

United States, he/she agrees to the following terms and

conditions:

...

g. If the defendant provides full, complete,

truthful and substantial cooperation to the United States, which

results in substantial assistance to the United States in the

investigation or prosecution of another criminal offense, a

decision specifically reserved by the United States in the

exercise of its sole discretion, then the United States agrees to

move for a downward departure in accordance with Section

5K1.1 of the United States Sentencing Guidelines or Rule 35 of

the Federal Rules of Criminal Procedure, whichever the United

States deems applicable. The United States specifically reserves

the right to make the decision relating to the extent of any such

departure request made under this agreement based upon its

evaluation of the nature and extent of the defendant’s

cooperation. The defendant understands that the United States

will make no representation or promise with regard to the exact

amount of reduction, if any, the United States might make in the

event that it determines that the defendant has provided

substantial assistance. The defendant understands that a mere

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interview with law enforcement authorities does not constitute

substantial assistance for this purpose. The defendant also

understands that should he/she provide untruthful information

to the United States at any time, or should he/she fail to disclose

material facts to the United States at any time, the United States

will not make a motion for downward departure. If the

defendant’s effort to cooperate with the United States does not

amount to substantial assistance as determined solely by the

United States, the United States agrees to recommend to the

district court judge who sentences the defendant that the

defendant receive a sentence at the low end of the applicable

advisory guideline range.

. . . 

LIMITED WAIVER OF RIGHT TO APPEAL SENTENCE

19. The defendant acknowledges that he/she is aware

that 18 U.S.C. § 3742 affords a defendant the right to appeal the

sentence imposed. In exchange for the recommendations made

by the United States in this Plea Agreement, the defendant

knowingly and voluntarily waives the right to appeal any

sentence imposed in this case.

20. With the limited exceptions noted below, the

defendant also waives his/her right to challenge any sentence so

imposed, or the manner in which it was determined, in any

collateral attack, including but not limited to, a motion brought

under 28 U.S.C. § 2255. “Any sentence so imposed” includes

any determination or sentence imposed in a supervised release

revocation proceeding.

21. The defendant reserves the right to contest in an

appeal or post-conviction proceeding any of the following:

a. Any punishment imposed in excess of the

statutory maximum;

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1 The Factual Resume, which Kimbrough also signed, reads as follows:

The defendant, RODERICK KEITH KIMBROUGH, admits the

allegations of Count One of the Indictment.

ELEMENTS OF THE OFFENSE

KIMBROUGH understands that in order to prove a violation of Title 21,

United States Code, Section 841(a)(1), as charged in Count One of the

Indictment, the United States must prove:

First: That the defendant knowingly and willfully possessed

cocaine base (crack cocaine) as charged; and

8

b. Any punishment that constitutes an upward

departure from the guideline range; or

c. A claim of ineffective assistance of

counsel.

22. In addition, the defendant reserves the right to

petition the Court for resentencing pursuant to 18 U.S.C. § 3582

in the event of a future retroactive amendment to the Sentencing

Guidelines which would affect the defendant’s sentence.

(Id. at 1, 2-4, 4-5, 7-8 & 10 (emphasis in original)) Appearing before

Kimbrough’s signature line on page 12of the agreement is this paragraph: “I

have consulted with my counsel and fully understand all my rights with respect

to the offenses(s) charged in the Indictment pending against me. I have read

this Plea Agreement and carefully reviewed every part of it with my

attorney. I understand this agreement, and I voluntarily agree to it. I hereby

stipulate that the Factual Resume,1

 incorporated herein, is true and accurate in

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Second: That he possessed the substance with the intent to distribute

it.

OFFENSE CONDUCT

Defendant, RODERICK KEITH KIMBROUGH, admits in open court

and under oath that the following statement is true and correct and constitutes

evidence in this case.

On or about February 8, 2008, Corporal Dawn Alfonsi of the Mobile

County Sheriff’s Office, Narcotics and Vice Unit (MCSO) along with Agent

Kevin Wright, Alabama Alcohol Beverage Control Board, Enforcement Division

(ABC) met with a reliable confidential informant (CI). The informant advised

he/she could meet RODERICK KEITH KIMBROUGH, known as “Keith”, and

purchase crack cocaine from him at his residence on Woodruff Road in Whistler,

Alabama.

The informant was furnished with $160.00 in buy-money and equipped

with an audio and video recording device. Alfonsi and Wright followed the

informant to a location near the residence. After a short time, the informant was

followed back to a prearranged location. Once back at the location, the informant

handed over the crack cocaine to Wright and Alfonsi. The informant advised that

when they arrived at the residence, RODERICK KEITH KIMBROUGH exited

his residence and met the informant in the yard. RODERICK KEITH

KIMBROUGH took crack cocaine from a gold/brown colored Acura parked in

the yard. KIMBROUGH then sold the informant approximately 3.8 grams of

crack cocaine and the informant handed KIMBROUGH the $160.00 in buy

money.

On March 31, 2008, the CI advised he/she could again purchase crack

cocaine from RODERICK KEITH KIMBROUGH. The informant was supplied

with buy money and equipped with a recording device. The informant phoned

RODERICK KEITH KIMBROUGH and told him he/she would meet him at a

residence off Lott Road in Eight Mile, Alabama. While in route to the residence,

the informant met KIMBROUGH on Jarrett Road and the two stopped their

vehicles on Bent Tree Way off Jarrett Road in Eight Mile, Alabama.

KIMBROUGH exited his vehicle and walked up to the informant’s vehicle and

sold the informant approximately 3.2 grams of crack cocaine. Alfonsi and Wright

observed KIMBROUGH meet the informant.

9

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Other than the above stated drug amounts, the United States and the

defendant do not have an agreement as to total drug amount attributable to the

defendant for purposes of relevant conduct and both parties are free to represent

their respective positions at sentencing. 

(Doc. 21, FACTUAL RESUME, at 1-2)

10

every respect, and that had the matter proceeded to trial, the United States

could have proved the same beyond a reasonable doubt.” (Id.)

4. On June 23, 2008, Kimbrough entered a counseled guilty plea

to Count One of the Indictment. (Doc. 38, Guilty Plea Transcript)

THE COURT: . . . Mr. Kimbrough, let me get you

to raise your right hand and take an oath, please, sir.

(The Defendants were placed under oath.)

THE COURT: . . . I need to tell each of you that

you are now under oath. If you answer any of my questions

falsely, your answers may later be used against you in another

prosecution for perjury or for making a false statement.

Do you understand that . . . Mr. Kimbrough?

DEFENDANT KIMBROUGH: Yes, sir.

...

THE COURT: And Mr. Kimbrough, would you

state your true, full name for the record, please, sir.

DEFENDANT KIMBROUGH: R o d e r i c k K e i t h

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Kimbrough.

THE COURT: And what is your age, please, sir?

DEFENDANT KIMBROUGH: 40.

THE COURT: And how much education have you

completed?

DEFENDANT KIMBROUGH: 11th.

THE COURT: And Mr. Scully, to the best of your

knowledge, is Mr. Kimbrough fully competent to enter a valid

plea today?

MR. SCULLY: Yes, sir.

THE COURT: . . . Have either of you ever been

treated for any mental illness or addiction to narcotic drugs of

any kind? . . . Mr. Kimbrough?

DEFENDANT KIMBROUGH: Substance Abuse

Program.

THE COURT: And where was that and how long

ago?

DEFENDANT KIMBROUGH: Ventress Correctional

Facility. . . . ‘99. 

THE COURT: Are either of you currently under the

influence of any drug or medication or alcoholic beverage of

any kind? . . . Mr. Kimbrough?

DEFENDANT KIMBROUGH: No, sir.

THE COURT: Have each of you received a copy of

the indictment in your case, had a full opportunity to read it and

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review it with your attorney, and do you understand the charge

contained in the indictment? . . . Mr. Kimbrough?

DEFENDANT KIMBROUGH: Yes, sir.

THE COURT: Is it necessary that I read the

indictment to you . . . Mr. Kimbrough?

DEFENDANT KIMBROUGH: No, sir.

THE COURT: Are each of you fully satisfied with

the representation that you’ve received from your attorney in

this case, and have you fully discussed with your attorney all of

the facts surrounding the charge? . . . Mr. Kimbrough?

DEFENDANT KIMBROUGH: Yes, sir.

THE COURT: . . . I have in this case a written plea

agreement in each of your cases, and this plea agreement

appears to have your signature at a couple of places, first at the

end of the plea agreement and also at the end of the factual

resume.

Did you, in fact, sign the document[s], . . . Mr.

Kimbrough?

DEFENDANT KIMBROUGH: Yes, sir.

THE COURT: By signing this document, you are

acknowledging that you have received a copy of it, that you’ve

had a chance to discuss it with your attorney, that you fully

understand the terms and conditions of the plea agreement and

the factual resume, and that you agree with it. 

Is that true . . . Mr. Kimbrough?

DEFENDANT KIMBROUGH: Yes.

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13

THE COURT: Now, have there been any promises

made to you by anyone or has anyone attempted in any way to

force you to plead guilty or to pressure you or threaten you in

any way . . . Mr. Kimbrough?

DEFENDANT KIMBROUGH: No, sir.

THE COURT: Now, the penalties that could be

imposed if convicted of the count to which you are pleading

guilty are outlined on page three of the plea agreement. 

...

And for Mr. Kimbrough, if convicted of Count One of

the indictment, you could receive a term of imprisonment up to

20 years, a fine not to exceed one million dollars, a supervised

release term up to five years, and a special assessment of $100.

Do you understand that?

DEFENDANT KIMBROUGH: Yes, sir.

THE COURT: Are either of you presently on

probation, parole, or supervised release in any other case? 

...

How about Mr. Kimbrough?

DEFENDANT KIMBROUGH: No, sir.

THE COURT: . . . Also, if convicted of the charge

in this case, you could lose valuable rights, including the right

to vote, the right to hold public office, the right to serve on a

jury, and the right to possess any kind of firearm. If it’s a drug

offense, you could lose certain Federal benefits. Do you

understand that . . . Mr. Kimbrough?

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14

DEFENDANT KIMBROUGH: Yes, sir.

THE COURT: The United States Sentencing

Commission has issued guidelines for judges to consider in

determining the sentence in a criminal case. Have you and your

attorney talked about how those guidelines might affect your

case . . . Mr. Kimbrough?

DEFENDANT KIMBROUGH: Yes, sir.

THE COURT: The way in which the Sentencing

Guidelines apply to your case might be affected by what you say

to the Court and to the probation officer. The Court will not be

able to determine an appropriate sentence for your case until

after a presentence report has been completed and you and the

United States have had an opportunity to challenge the facts

reported by the probation officer. 

Do you understand that . . . Mr. Kimbrough?

DEFENDANT KIMBROUGH: Yes, sir.

THE COURT: The sentence imposed might be

different from any estimate your attorney or anyone else might

have given you. Do you understand that . . . Mr. Kimbrough?

DEFENDANT KIMBROUGH: ( Nods head

affirmatively.)

THE COURT: After it has been determined what

guideline applies to a case, the judge has the authority to impose

a sentence that is more severe or less severe than the sentence

called for in the Guidelines.

Do you understand that . . . Mr. Kimbrough?

DEFENDANT KIMBROUGH: Yes, sir.

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THE COURT: Under some circumstances, you the

United States each may have the right to appeal any sentence the

judge imposes. For instance, you can appeal your conviction if

you believe your guilty plea was somehow unlawful or

involuntary or if there’s some other fundamental defect in the

proceedings not waived by your guilty plea.

You also have the right to waive your right to appeal, and

I see by your plea agreements that you are waiving your right to

appeal any sentence the judge imposes with the following

exceptions: And that would be any punishment in excess of the

statutory maximum, any punishment constituting an upward

departure of the guideline range, and any claim of ineffective

assistance of counsel. 

Do you understand that . . . Mr. Kimbrough?

DEFENDANT KIMBROUGH: Yes, sir.

THE COURT: Parole has been abolished. If you are

sentenced to prison, you will not be released on parole. Do you

understand that . . . Mr. Kimbrough?

DEFENDANT KIMBROUGH: Yes, sir.

THE COURT: If the sentence is more severe than

you expected or if I do not accept the sentencing

recommendation in your plea agreement, you will still be bound

by your plea. Even if you do not like the sentence imposed, you

will not be able to withdraw your plea. The time to make that

decision is now.

Do you understand that . . . Mr. Kimbrough?

DEFENDANT KIMBROUGH: Yes, sir.

THE COURT: You have the right to plead not

guilty to any offense charged against you and to persist in that

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plea. You would then have the right to a trial by jury. During

that trial, you would have the right to the assistance of counsel

for your defense and to the appointment of counsel if you could

not afford to hire one, . . . the right to see and hear all of the

witnesses and have your attorney cross-examine them, the right

to testify yourself or to decline to testify and remain silent, and

the right to have the Court issue subpoenas for any witnesses

you wish to call in your defense.

At the trial, you would be presumed to be innocent, and

the United States would have the burden of proving that you are

guilty beyond a reasonable doubt. Before you can be convicted,

all 12 jurors must be convinced that the United States has met

that burden.

If you are found guilty after a trial, you would then have

the right to appeal that conviction to a higher court, and if you

could not afford to pay the cost of an appeal, the Government

would pay those costs for you.

Do you understand all of that, Mr. Kimbrough?

DEFENDANT KIMBROUGH: Yes.

THE COURT: If you plead guilty, however, and if

the Court accepts your plea, there will be no trial; you will be

waiving or giving up your right to a trial and all the other rights

that I just described.

Do you understand that, . . .Mr. Kimbrough?

DEFENDANT KIMBROUGH: Yes, sir.

THE COURT: Also included in your plea

agreement is a factual resume.

...

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17

And for Mr. Kimbrough, the factual resume in your case has a

statement of the elements of the offense charged in Count One,

which states a violation of Title 21, United States Code, Section

841(a)(1).

And the elements of that offense are that you knowingly

and willfully possessed crack cocaine as charged; and that you

possessed that substance with the intent to distribute it. 

Do you understand that those are the elements of the

offense to which you are pleading guilty?

DEFENDANT KIMBROUGH: Yes, sir.

THE COURT: And do you fully understand that if

there was a trial in this case, the United States would be required

to present sufficient evidence to prove each of these essential

elements beyond a reasonable doubt?

DEFENDANT KIMBROUGH: Yes, sir.

THE COURT: Also included in your factual resume

is a statement of offense conduct. Did you, in fact, commit the

acts and do the things that you have admitted to in this

statement?

DEFENDANT KIMBROUGH: Yes, sir.

THE COURT: Then I find that the facts and acts to

which you have admitted support a violation of the charge

contained in Count One of the indictment. How do you now

plead to that charge, guilty or not guilty?

DEFENDANT KIMBROUGH: Guilty.

THE COURT: And Mr. Scully, are you aware of

any reason the Court should not accept Mr. Kimbrough’s guilty

plea at this time?

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2 The guidelines produced a range of 360 months to life imprisonment. (See Doc.

27, Sentencing Recommendation, at 1) However, because Count One carried a statutory

maximum of 20 years imprisonment, the guideline sentence was “240 months.” (Id.)

18

MR. SCULLY: No, sir.

THE COURT: Then it is the finding of this Court

in the case of the United States versus . . . Roderick Keith

Kimbrough, that each of you are fully competent and capable of

entering an informed plea, that you are aware of the nature of

the charge and the consequences of your plea, and that your plea

of guilty is a knowing and voluntary plea supported by an

independent basis in fact containing each of the essential

elements of the offense. Your plea is therefore accepted, and

you are now adjudged guilty of that offense.

(Id. at 3, 4, 4-5, 5, 6, 7, 8, 9, 9-10, 10, 11, 11-12 & 13-15)

5. The Presentence Investigation Report was prepared by the

Probation Office on August 13, 2008. (Doc. 27) Based upon the total offense

level of 37 and all other factors contained in the report, including a criminal

history category of VI, the probation officer recommended that Kimbrough

receive a 240-month term of imprisonment,2

 a 3-year term of supervised

release following his release from prison, and a special assessment of $100.00.

(Id., Sentencing Recommendation, at 1-3) The defendant interposed no

objections to the Presentence Report. (See Docket Sheet)

6. During the sentencing hearing on October 9, 2008, the parties

agreed that the appropriate adjusted offense level was 37 and that Kimbrough

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19

had a criminal history category of VI (see Doc. 38, Sentencing Transcript, at

4), thereby rendering a guideline range of 360 months to life but because there

was a statutory maximum of 240 months that would be the maximum term of

imprisonment which he could receive (see id.). Thereafter, the following

occurred:

THE COURT: . . . Mr. Scully, you have anything you

want to offer on Mr. Kimbrough’s behalf before sentence is

imposed?

MR. SCULLY: Judge, I think that . . . Mr.

Kimbrough has cooperated[] . . . and I think the Government is

going to make a 5K motion that he should be sentenced below

the statutory maximum.

. . . [A]lthough he does have an extensive criminal

history, much of it is related to his drug addiction. And we

would ask that the Court recommend that any sentence include

a recommendation that he participate in a comprehensive,

residential drug treatment program, of course.

I wanted to make something a matter of record. . . . We

have decided to defer potential argument about the range of

sentence because they weren’t worth arguing about because of

the statutory maximum being 20 years.

. . . [M]y calculation of the Guidelines, even if I grant all

of the potential issues that were out there, it’s still right at the

statutory maximum, and so it’s not a matter that – – I’ve

discussed that with Mr. Kimbrough, and we don’t want to make

any objection to the Presentence Investigation Report.

That’s all Judge. 

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THE COURT: Mr. May, you have a motion?

MR. MAY: Yes, Your Honor. I apologize for not filing

it in advance or having it in writing today[.] I’ll make it orally,

but we had some last-minute discussions about some things and

just kind of worked it out at the last minute.

I would say that Mr. Kimbrough is fortunate that what

happened in this case is we made these buys from him, and a lot

of the information that dealt with the conspiracy was developed

after the indictment. He could have been facing a whole lot

more time here than 360 to life, but we base the indictment on

the substantive counts of less than 50 grams, in fact, less than

five grams, which gives him the 20-year maximum in this case.

I’m going to make a recommendation for a downward

departure of about 15 percent to 210 months. And the reason I

do this – – and the agent had mixed emotions about this, quite

frankly, thinking that the Defendant hasn’t been completely

forthright about all of his drug knowledge, and that’s part of the

reason it’s limited.

And the other reason is that it was marginal use. And

what he did do, and what he should get credit for, . . . one of his

suppliers was a person by the name of Nathaniel Vanzant, who

was a significant supplier who was bringing in approximately

two kilos of powder cocaine a week or every other week into the

Mobile area. He had an old school stove top method of cooking

and was cooking the powder cocaine into . . . what they call

crack cocaine pies that were about a quarter kilo a pie, and was

moving significant amounts of crack cocaine.

And this Defendant was one of his customers, and he

stood ready to testify against Vanzant. And we went over to . .

. I believe it was the Escambia County Jail and interviewed him,

and he was prepared to testify and talk to us and was prepared

to testify that day, and we were planning to bring him over. And

ultimately, Vanzant pled guilty, I believe, within a week of the

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21

trial. So, it was a last-minute plea so we didn’t have to, but he

did stand ready to testify.

Now, part of the reason the information was of limited

significance, and although I always credit someone who is

willing to testify, is that Vanzant . . . had confessed at the time

of the arrest and made some very damaging admissions. So, we

felt we had a pretty strong case. 

Obviously, this information . . . would have been helpful

and we were planning to use it, but I wanted to give a

perspective on the case. And . . . so we think it’s a generous 5K

motion under all the circumstances.

THE COURT: Mr. Scully, you want to be heard on

the motion?

MR. SCULLY: Judge, I think that Mr. Kimbrough

. . . has expressed a willingness to provide additional

information or remains willing to do that . . . . [W]e think that’s

an appropriate motion and would ask the Judge to follow the

Government’s recommendation.

THE COURT: Mr. May, do you anticipate that

there may be future use of Mr. Kimbrough’s cooperation and

testimony?

MR. MAY: Potentially, Your Honor. And there’s

actually an unsolved murder of an individual by the name of

Johnny Murphy, aka Poo, and they are all pointing fingers at

each other. Several people have pointed fingers at this

Defendant as the perpetrator. He adamantly denies it, and he

points fingers at others, and we don’t know . . . . 

But should that case develop . . . or other narcotics cases

be developed, we . . . are leaving it open for further reduction if

he can provide substantial information in the future. 

Case 1:08-cr-00150-WS-C Document 41 Filed 02/05/10 Page 21 of 41
22

THE COURT: All right. Then based on the

information supplied in support of the Government’s motion

pursuant to 5K1 of the Sentencing Guidelines, I find the motion

well taken and will grant the motion for a downward departure.

Mr. Scully, you have anything further you want to offer

on Mr. Kimbrough’s behalf before sentence is imposed?

MR. SCULLY: No, sir, Judge.

THE COURT: Mr. Kimbrough, do you have

anything you want to say before sentence is imposed?

DEFENDANT: I’m greatly sorry for what I’ve done

. . . . I learned from my mistakes. I just put my hands in the good

Lord’s hands that everything will work out.

And I know I didn’t kill Johnny Murphy. That’s a fact.

THE COURT: Of course, you’re not here for that.

DEFENDANT: I know.

THE COURT: You’re just here for the . . . cocaine

charge against you, and that’s all we are dealing with here today.

All right. I have considered all of the information I have

available to me, all of that contained in the Presentence Report,

and I’ve considered it in light of the requirements of Section

3553(a) of Title 18, which requires me to consider your personal

history and characteristics, the nature of the offense and your

criminal history, and I do so.

And I have determined that in this case, the requirements

for sentencing and the Sentencing Guidelines as tempered by the

Government’s 5K1 motion coincide, that being a 210-month

sentence that I have determined to be appropriate and reasonable

under the circumstances. And I do so because I have taken in

consideration your extensive criminal history. You’ve come

Case 1:08-cr-00150-WS-C Document 41 Filed 02/05/10 Page 22 of 41
23

here with 14 criminal history points . . . which plays into the

guideline sentence.

Your substantial involvement in the distribution of

cocaine in this community, based on what I read in the report,

and all of the other personal history and characteristics and

information that I have received from the report, all of that

advises me that the sentence of 210 months is appropriate and

reasonable under the circumstances.

Having granted the Government’s motion for a

downward departure, and having considered all of that

information, it is the judgment of this Court that you, Roderick

Keith Kimbrough, are hereby committed to the custody of the

United States Bureau of Prisons for a term of 210 months as to

Count One of the indictment.

I will recommend that you be imprisoned at an institution

where a residential, comprehensive, substance abuse treatment

program is available. It will be up to you to . . . take advantage

of that program and to receive any benefits that may come from

the treatment program. 

Upon release from imprisonment, you shall be placed on

supervised release for a term of three years as to Count One of

the indictment. Within 72 hours of release from custody of the

Bureau of Prisons, you shall report in person to the probation

office in the district to which you are released. While on

supervised release, you shall not commit any Federal, state, or

local crimes, you shall be prohibited from possessing a firearm

or other dangerous device, and shall not possess a controlled

substance. In addition, you shall comply with the standard

conditions of supervised release as recommended by the

Sentencing Commission and on record with this Court. 

The Court also orders that you comply with the following

special condition of supervised release; that is, that you shall

participate in a program of testing and treatment for drug and/or

Case 1:08-cr-00150-WS-C Document 41 Filed 02/05/10 Page 23 of 41
24

alcohol abuse as directed by the Probation Office.

The Court finds that you do not have the ability to pay a

fine; therefore, no fine is imposed.

For the reasons given, the Court finds that the sentence

imposed addresses the seriousness of the offense and the

sentencing objectives of punishment, deterrence, and

incapacitation.

It is ordered that you pay a special assessment in the

amount of $100 on Count One, which is due immediately.

You can appeal your conviction if you believe that your

guilty plea was somehow unlawful or involuntary of if there’s

some other fundamental defect in the proceedings not waived by

your guilty plea or your plea agreement. 

You have the right to apply for leave to appeal in forma

pauperis, and the Clerk of Court will prepare and file notice of

appeal upon your request. With few exceptions, any notice of

appeal must be filed within 10 days of the date of judgment.

I note that there’s a remaining count of the indictment.

Does the Government have a motion?

MR. MAY: Yes, Your Honor. The United States would

move to dismiss Count Two of the indictment.

THE COURT: All right. The motion is granted.

Count Two of the indictment is hereby dismissed. Anything

further from the Government at this time?

MR. MAY: No, Your Honor.

...

THE COURT: Mr. Scully, do you have any

Case 1:08-cr-00150-WS-C Document 41 Filed 02/05/10 Page 24 of 41
25

objections or any other matters that we need to put on the record

at this time?

MR. SCULLY: No, sir.

(Id. at 4-11; see also Doc. 28 (judgment in a criminal case entered on October

21, 2008))

7. On October 26, 2009, Kimbrough filed the present collateral

attack on his conviction and sentence pursuant to 28 U.S.C. § 2255. (Doc. 35)

Therein, petitioner raises the following grounds which he claims entitle him

to relief: (1) the district court lacked subject matter jurisdiction on all grounds

listed in this motion (Doc. 35, at 4; see also id. (“My sentence was imposed in

violation of the Federal Constitution and laws of the United States[] . . .

[b]ecause appointed counsel did not challenge grand jury proceeding[s.]”); (2)

ineffective assistance of counsel due to trial counsel’s failure to challenge

probable cause (id. at 5), his failure to inform him that his sentence would be

increased considerably based upon the 100:1 ratio (id. at 11), his failure to

raise mitigating circumstances in support of a reduced sentence (see id.), and

Case 1:08-cr-00150-WS-C Document 41 Filed 02/05/10 Page 25 of 41
3 Rule 32(c) of the Federal Rules of Criminal Procedure relates to the presentence

investigation report prepared by the probation office. Presumably, Kimbrough intends to suggest

that his attorney should have filed objections to that report. 

4 Petitioner concludes his § 2255 motion with the following “cumulative effects”

argument: “There is a reasonable probability that appointed counsel’s unprofessional omissions

deprived I, Roderick Keith Kimbrough, of a substantive or procedural right, including but not

limit[ed] to depriving me of a favorable downward adjustment or departure, and failed to prevent

an improper upward adjustment on 100:1 [ratio] in my sentencing under the guidelines, under

relevant statutes, and under the Constitution, thus sentence is violative of the Sixth Amendment

Constitutional right to effective assistance of counsel and is, therefore, subject to this collateral

attack.” (Id. at 12) As reflected infra, none of petitioner’s arguments have merit; therefore, his

“cumulative effects” argument has no merit.

26

his failure to file a Fed.R.Crim.P. 32(c) motion (id. at 12)3;

4

 (3) the court failed

to “hold” his sentence “under the reasonableness standard invoking a Booker

violation” (id. at 7; see also id. (“During my sentencing I was never informed

by the court on [10/9/08] at it relate to the date the sentence was imposed that

the guidelines are no longer ‘mandatory’ but are ‘advisory.’”); (4) the

indictment was defective because it failed to inform him that “the 100:1 ratio

[] trumps a greater sentence” (id. at 8) and because it failed to inform him of

“interstate commerce[]” (id. at 11); and (5) an Apprendi violation (see id.

(“The Supreme Court held [] a Judge is prohibited from any enhancements to

the defendant’s statutory maximum sentence based upon the facts not pleaded

in indictment, or admitted by defendant . . . . I, Roderick Keith Kimbrough[,]

never admitted to a 100:1 [ratio] that was never in the Indictment that the

Case 1:08-cr-00150-WS-C Document 41 Filed 02/05/10 Page 26 of 41
5 In addition, in the self-styled “affidavit” attached to his § 2255 motion he appears

to contend that (1) he was denied Equal Protection of the law due to the failure of authorities to

take him before a Magistrate Judge within 48 hours of arrest, (2) his PSI was fabricated, and (3)

it was his understanding that by pleading guilty to distributing 3.8 grams of crack cocaine he

would receive a sentence of 70 months. (See Doc. 35, at 15)

27

Grand Jury handed down or that was in the plea.”)).5

8. The United States filed its response in opposition on December

10, 2009. (Doc. 39) Therein, the government argues that petitioner’s

ineffective assistance of counsel claims, as they relate to his sentencing, are

without merit and that all other claims raised by petitioner are due to be

dismissed. (Id. at 3-12) Kimbrough was instructed by order entered on

November 2, 2009 to file his reply within thirty (30) days of the filing of the

response by the government (Doc. 36), thereby making his reply due on or

before January 11, 2010 (compare id. with Doc. 39). To date, this Court has

not received a reply from the petitioner.

CONCLUSIONS OF LAW

1. 28 U.S.C. § 2255 reads, in relevant part, as follows: “A prisoner

in custody under sentence of a court established by Act of Congress claiming

the right to be released upon the ground that the sentence was imposed in

violation of the Constitution or laws of the United States, or that the court was

without jurisdiction to impose such sentence, or that the sentence was in excess

Case 1:08-cr-00150-WS-C Document 41 Filed 02/05/10 Page 27 of 41
6 Once a criminal defendant enters a guilty plea, he waives all non-jurisdictional

challenges to the conviction’s constitutionality and only an attack on the voluntary and knowing

nature of the plea can be raised. See McMann v. Richardson, 397 U.S. 759, 772, 90 S.Ct. 1441,

1449, 25 L.Ed.2d 763 (1970). Stated differently, “a voluntary and intelligent plea made by an

accused person, who has been advised by competent counsel, may not be collaterally attacked.” 

Mabry v. Johnson, 467 U.S. 504, 508, 104 S.Ct. 2543, 2546-2547, 81 L.Ed.2d 437 (1984)

(emphasis supplied). Therefore, when a § 2255 motion is filed collaterally challenging

convictions obtained pursuant to guilty pleas, “the inquiry is ordinarily confined to whether the

underlying plea was both counseled and voluntary.” United States v. Broce, 488 U.S. 563, 569,

109 S.Ct. 757, 762, 102 L.Ed.2d 927 (1989).

28

of the maximum authorized by law, or is otherwise subject to collateral attack,

may move the court which imposed the sentence to vacate, set aside or correct

the sentence.” 

2. In this instance, Kimbrough contends, in part, that

constitutionally ineffective assistance of counsel entitles him to the relief

afforded by 28 U.S.C. § 2255.6

 In order to establish a claim of ineffective

assistance of counsel, a petitioner is required to show (1) that his attorney’s

representation fell below “an objective standard of reasonableness” and (2)

that a reasonable probability exists that but for counsel’s unprofessional

conduct, the result of the proceeding would have been different. Strickland v.

Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). “The

petitioner bears the burden of proof on the ‘performance’ prong as well as the

‘prejudice’ prong of a Strickland claim, and both prongs must be proved to

prevail.” Johnson v. Alabama, 256 F.3d 1156, 1176 (11th Cir. 2001), cert.

Case 1:08-cr-00150-WS-C Document 41 Filed 02/05/10 Page 28 of 41
7 It is proper in considering claims made by a federal prisoner under § 2255 to look

for guidance from cases discussing claims raised by state prisoners under 28 U.S.C. § 2254. See

Hagins v. United States, 267 F.3d 1202, 1205 (11th Cir. 2001) (citing Holladay v. Haley, 209

F.3d 1243 (11th Cir. 2000)), cert. denied, 537 U.S. 1022, 123 S.Ct. 545, 154 L.Ed.2d 432

(2002).

8 “When analyzing ineffective-assistance claims, reviewing courts must indulge a

strong presumption that counsel’s conduct fell within the wide range of reasonably professional

assistance.” Smith v. Singletary, 170 F.3d 1051, 1053 (11th Cir. 1999) (citations omitted).

29

denied sub nom. Johnson v. Nagle, 535 U.S. 926, 122 S.Ct. 1295, 152 L.Ed.2d

208 (2002).7

 The Strickland v. Washington standard for evaluating claims of

ineffective assistance of counsel was held applicable to guilty pleas in Hill v.

Lockhart, 474 U.S. 52, 58, 106 S.Ct. 366, 370, 88 L.Ed.2d 203 (1985). 

To succeed on such a claim, “the defendant must show that

counsel’s performance was deficient. This requires showing

that counsel made errors so serious that counsel was not

functioning as the ‘counsel’ guaranteed the defendant by the

Sixth Amendment.” Strickland v. Washington, 466 U.S. 668,

687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984).8

 In addition,

the defendant must establish that “counsel’s constitutionally

ineffective performance affected the outcome of the plea

process.” Hill, 474 U.S. at 59, 106 S.Ct. at 370. In other words,

. . . [a petitioner] “must show that there is a reasonable

probability that, but for counsel’s errors, he would . . . have

pleaded [not] guilty and would . . . have insisted on going to

trial.” Hill, 474 U.S. at 59, 106 S.Ct. at 370.

Coulter v. Herring, 60 F.3d 1499, 1504 (11th Cir. 1995) (footnote, brackets

and ellipses added), cert. denied sub nom. Coulter v. Jones, 516 U.S. 1122,

Case 1:08-cr-00150-WS-C Document 41 Filed 02/05/10 Page 29 of 41
9 “‘[T]he cases in which habeas petitioners can properly prevail on the ground of

ineffective assistance of counsel are few and far between.’” Johnson, supra, 256 F.3d at 1176

(citation omitted).

30

116 S.Ct. 934, 133 L.Ed.2d 860 (1996).9 Of course, in the context of

sentencing following entry of a guilty plea the court simply considers whether

petitioner has established, in accordance with Strickland, supra, that his

attorney was deficient and that he was prejudiced by this deficiency in

performance. See, e.g., Myers v. United States, 2009 WL 1505638, *1 (W.D.

Pa. 2009) (“In order for petitioner to succeed on an ineffective assistance of

counsel claim, he must prove: (1) that his counsel was deficient; and (2) that

he was prejudiced by his counsel’s deficiency.”). 

3. When applying the Strickland standard, it is clear that courts “are

free to dispose of ineffectiveness claims on either of its two grounds.” Oats

v. Singletary, 141 F.3d 1018, 1023 (11th Cir. 1998) (citation omitted), cert.

denied sub nom. Oats v. Moore, 527 U.S. 1008, 119 S.Ct. 2347, 144 L.Ed.2d

243 (1999); see also Butcher v. United States, 368 F.3d 1290, 1293 (11th Cir.

2004) (“[O]nce a court decides that one of the requisite showings has not been

made it need not decide whether the other one has been.”). 

4. Petitioner’s conclusory allegations of ineffective assistance of

counsel do not entitle him to relief. His first claim is that his attorney was

Case 1:08-cr-00150-WS-C Document 41 Filed 02/05/10 Page 30 of 41
10 “A mere averment that police lacked probable cause to arrest defendant is

insufficient without an assertion of facts to support the claim.” United States v. Green, 2007 WL

1221230, *1 (S.D. Ga.), report & recommendation adopted by 2007 WL 1615127 (2007).

11 In fact, this warrant was never returned as being served. (Doc. 2) There was

certainly probable cause for issuance of this warrant, however, as the facts set forth in the

affidavit of Coporal Dawn Alfonsi established probable cause to believe that Kimbrough

possessed with intent to distribute cocaine on February 8, 2008 and March 31, 2008 in violation

of 21 U.S.C. § 841(a)(1). (See Doc. 1, Affidavit Attached to Criminal Complaint; compare id.

with Garmon v. Lumpkin County, Georgia, 878 F.2d 1406, 1409 (11th Cir. 1989) (whether

probable cause existed for arrest must be answered by reviewing the facts in the affidavit

accompanying the criminal complaint and application for the warrant) and BLACK’S LAW

DICTIONARY, at 1239 (8th ed. 2004) (“Under the Fourth Amendment, probable cause – which

amounts to more than a bare suspicion but less than evidence that would justify a conviction –

must be shown before an arrest warrant . . . may be issued.”))

. 

12 Based on these facts, it is clear that Kimbrough was in state custody at the time he

was indicted on federal charges. Therefore, he cannot establish that he did not appear in federal

court in a timely manner. Accordingly, his argument that he was denied Equal Protection of the

law due to the failure of authorities to take him before a federal magistrate judge within 48 hours

of his arrest has no merit.

31

ineffective in failing to challenge probable cause for his April “19", 2008

arrest.10 However, the undersigned finds that there was no deficiency in his

attorney’s performance in this regard inasmuch as the presentence report

clearly establishes that petitioner was arrested on April 20, 2008 by Prichard

police officers performing surveillance on him in the Eight Mile area of

Mobile County (see Doc. 27, at 5), as opposed to the officer who obtained a

federal warrant for his arrest on April 15, 2008 (see Docs. 1 &2).11 Thereafter,

petitioner was indicted on April 25, 2008 (Doc. 3) and made his initial

appearance on April 5, 2008 (Doc. 6).12 Because the indictment establishes

Case 1:08-cr-00150-WS-C Document 41 Filed 02/05/10 Page 31 of 41
32

probable cause, Afanasjev v. Hurlburt, 418 F.3d 1159, 1164 n.11 (11th Cir.)

(“While an indictment may not be evidence of guilt, it can, under some

circumstances, be sufficient to demonstrate that probable cause exists.”), cert.

denied, 546 U.S. 993, 126 S.Ct. 587, 163 L.Ed.2d 489 (2005), petitioner’s

attorneys were without a probable cause argument to make.

5. Petitioner’s other claims of ineffective assistance of counsel

pertain to his sentencing, Kimbrough contending that his attorney (1) failed to

inform him that his sentence would be increased considerably based upon the

100:1 ratio, (2) failed to raise mitigating circumstances in support of a reduced

sentence, and (3) failed to file a Rule 32(c) motion. To place petitioner’s first

sentencing argument in proper perspective, the undersigned need note that in

the Eleventh Circuit district courts “must still correctly determine the advisory

Guidelines range by using the 100-to-1 ratio[,]” before varying from that

advisory range upward or downward based upon application of the § 3553(a)

factors. United States v. Williams, 472 F.3d 835, 841 (11th Cir. 2006); see also

United States v. Pope, 461 F.3d 1331, 1337 (11th Cir. 2006); see United States

v. Hackman, 284 Fed.Appx. 743, 746 (11th Cir. 2008) (“The sentencing

disparity between cocaine and crack does not violate equal protection.

Hackman’s reliance on Kimbrough is misplaced because its holding, that

Case 1:08-cr-00150-WS-C Document 41 Filed 02/05/10 Page 32 of 41
13 Nothing in Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d

481 (2007) requires this Court to utilize a 1:1 ratio, or something less than a 100:1 ratio, in

determining, in the first instance, the advisory Guidelines range. Gilchrist v. United States, 2009

WL 2163103, *3 (M.D. Fla. 2009).

14 In other words, the maximum sentence facing petitioner under Count One of the

indictment was 20 years, as set forth in the statute. 

33

district courts are permitted to disagree with the policies underlying the

guidelines, is unrelated to the constitutionality of the sentencing disparity.”

(internal citations omitted)).13 In this case, it is not only clear that the Court

correctly applied the 100:1 ratio in determining the advisory guideline range

of 360 months to life imprisonment but then went further and properly

determined that since the advisory guidelines range surpassed the statutory

maximum sentence of 20 years imprisonment, the Court was bound by the

statutory maximum of 240 months (i.e., 20 years).14 Therefore, even if

petitioner correctly represents to this Court that his attorney failed to inform

him that his sentence would be increased considerably based upon the 100:1

ratio, he has not shown how he was prejudiced by this lack of information

since he did not receive a guidelines sentence in the range of 360 months to

life. In other words, the 100:1 ratio did not inform nor did it have any impact

on petitioner’s sentence; instead, his sentence was informed by the statutory

maximum, a sentence with which he was very much aware (see Doc. 38,

Case 1:08-cr-00150-WS-C Document 41 Filed 02/05/10 Page 33 of 41
15 The undersigned takes this opportunity to address petitioner’s conclusory

contention that his attorney failed to challenge the grand jury proceedings. First, it need be noted

that petitioner’s attorney could not be deficient in this regard since he did not represent

Kimbrough at the time he was indicted (compare Doc. 3 (indictment filed in open court on April

25, 2008) with Doc. 16 (William E. Scully, Jr., Esquire, appointed to represent petitioner on June

4, 2008)). Moreover, Kimbrough’s apparent contention that his attorney should have attacked the

indictment due to its failure to inform him of the 100:1 ratio is a baseless argument since the

100:1 crack-to-cocaine ratio is a sentencing issue, see, e.g., Pope, supra, 461 F.3d at 1337, not

an indictment (or grand jury) issue. Therefore, his attorney was not deficient in failing to

interpose any “challenge” to his grand jury proceedings (or the resulting indictment). 

16 His Rule 32(c) argument is due to be denied for this same reason. As previously

indicated, since Rule 32(c) deals with preparation of the PSI, the undersigned appreciates

34

Guilty Plea Tr., at 8 (“[I]f convicted of Count One of the indictment, you could

receive a term of imprisonment up to 20 years, a fine not to exceed one million

dollars, a supervised release term of up to five years, and a special assessment

of $100. Do you understand that? DEFENDANT KIMBROUGH: Yes, sir.”)

compare id. with Doc. 21, Plea Agreement, at 3 (“The maximum penalty the

Court could impose as to Count One of the Indictment is: a. 20 years

imprisonment[.]”)). Therefore, petitioner is not entitled to relief on the basis

of this claim.15

6. Petitioner’s contention that his attorney erred in failing to raise

mitigating circumstances in support of a reduced sentence is not only

conclusory but it is also baseless as Kimbrough points to no such

circumstances that would support a more reduced sentence than that which he

received in light of his significant criminal history.16 Kimbrough, in fact, was

Case 1:08-cr-00150-WS-C Document 41 Filed 02/05/10 Page 34 of 41
petitioner’s argument to be that his attorney erred in failing to file objections to the PSI. Because

petitioner does not outline for this Court what objections his attorney should have filed, nor does

he demonstrate the impact such objections would have on his sentence, the undersigned can find

neither that Kimbrough’s attorney was deficient in this regard or that petitioner was in any

manner prejudiced by his attorney’s performance in this regard. As is apparent from the

sentencing transcript, petitioner’s attorney chose to interpose no objections to the PSI because

even assuming all such objections were fully upheld by the Court, the resulting guideline

sentence would not fall below the statutory maximum of 20 years. (See Doc. 38, Sentencing Tr.,

at 4-5 (“I wanted to make something a matter of record. . . . We have decided to defer potential

arguments about the range of the sentence because they weren’t worth arguing about because of

the statutory maximum being 20 years. . . . [M]y calculation of the Guidelines, even if I grant all

of the potential issues that were out there, it’s still right at the statutory maximum[.] . . . I’ve

discussed that with Mr. Kimbrough, and we don’t want to make any objection to the Presentence

Investigation Report.”)) Accordingly, it made no sense for counsel to make objections to the PSI

since the Court would, at the end of the day, be at the same starting point, that is, the statutory

maximum of 20 years. 

35

the beneficiary of a great deal as the government made a motion for downward

departure which was granted and resulted in a 210-month term of

imprisonment, as opposed to the statutory maximum of 240 months. 

7. While the respondent is perhaps correct that petitioner’s

contention that this “court lacked subject matter jurisdiction on all grounds

listed in this motion” should be dismissed under United States v. Broce, supra,

there is simply no merit to this conclusory claim. As previously indicated,

there is no probable cause problem in this case. Moreover, the indictment was

Case 1:08-cr-00150-WS-C Document 41 Filed 02/05/10 Page 35 of 41
17 Regardless, the Supreme Court clearly determined in United States v. Cotton, 535

U.S. 625, 631, 122 S.Ct. 1781, 1785, 152 L.Ed.2d 860 (2002), that indictment defects are not

jurisdictional. 

18 There have never been any allegations against Kimbrough that he transported his

crack cocaine in interstate commerce; in fact, he never left the Southern District of Alabama in

respect to his possession of crack cocaine with intent to distribute same. This is very much a runof-the-mill “intrastate” possession with intent to distribute case. Accordingly, the indictment in

this case was obviously not defective for failing to allege “interstate commerce.”

19 “‘An indictment is sufficient if it: (1) presents the essential elements of the

charged offense, (2) notifies the accused of the charges to be defended against, and (3) enables

the accused to rely upon a judgment under the indictment as a bar against double jeopardy for

any subsequent prosecution for the same offense.’” United States v. Alls, 304 Fed.Appx. 842,

847 (11th Cir. 2008) (quoting United States v. Steele, 178 F.3d 1230, 1233-1234 (11th Cir.

1999)), cert. denied, U.S. , 129 S.Ct. 2073, 173 L.Ed.2d 1148 (2009). While Kimbrough

has clearly waived this issue, see Alls, supra, at 847 (“Generally, a defendant must object before

trial to defects in an indictment, and failure to do so waives any alleged defects.”), Count One of

the Indictment (the count to which petitioner pled guilty), charging that Kimbrough “did

unlawfully, knowingly and intentionally distribute and possess with the intent to distribute a

Schedule II controlled substance, to-wit: approximately 3.8 grams of a mixture and substance

containing a detectable amount of cocaine, which contains cocaine base, commonly known as

crack cocaine[,]” (Doc. 3, at 1), sufficiently presented the essential elements of the charged

offense, compare Alls, supra, 304 Fed.Appx. at 847 (“The elements of a § 841(a)(1) offense are:

‘(1) knowledge; (2) possession; and (3) intent to distribute.’”) with United States v. Wilson, 183

F.3d 1291, 1298 n.13 (11th Cir. 1999) (“In order to obtain a conviction under 21 U.S.C. §

841(a)(1), the Government must establish the existence of three elements: (1) knowledge (of

one’s possession); (2) possession of a controlled substance; and (3) intent to distribute that

substance.”), cert. denied, 530 U.S. 1231, 120 S.Ct. 2664, 147 L.Ed.2d 277 (2000), notified

Kimbrough of the charges to be defended against, and enabled him to rely upon a judgment

under the indictment as a bar against double jeopardy for any subsequent prosecution for the

same offense. 

Based on the foregoing, Count One of the Indictment was not rendered defective (nor, for

that matter, Count Two) for failure to contain any reference to the 100:1 crack-to-powder

cocaine ratio. As previously indicated, this ratio is a sentencing issue, not an indictment issue. 

36

not defective17 for failing to inform petitioner either of “interstate commerce”18

or that “the 100:1 ratio [] trumps a greater sentence[.]”19 Finally, there was

Case 1:08-cr-00150-WS-C Document 41 Filed 02/05/10 Page 36 of 41
20 In United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005),

the Supreme Court held that the sentencing guidelines are advisory, id. at 245, 125 S.Ct. at 757,

and reaffirmed its holding in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d

435 (2000) that “[a]ny fact (other than a prior conviction) which is necessary to support a

sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury

verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt.” Id. at

244, 120 S.Ct. at 756. Kimbrough’s contention that he was not informed by the Court during his

sentencing proceeding that the sentencing guidelines are advisory in contravention of Booker,

supra, ignores not only that he received this information through the plea agreement and during

his guilty plea hearing but, as well, that the guideline range of 360 months to life obviously was

not applied to his case in a mandatory fashion. Instead, entirely consistent with Apprendi, supra,

the Court informed petitioner that he could not receive a guidelines-range sentence between 360

months and life because it exceeded the maximum sentence (20 years) allowed by statute and,

therefore, the Court started with a 20 year sentence from which it then departed downward to a

210-month sentence. Stated differently, the “facts” established by petitioner’s plea of guilty

supported the statutory maximum sentence of 20 years and, therefore, consistent with Apprendi,

this Court properly started with a 20-year sentence and, upon granting the government’s oral

motion for downward departure, ultimately sentenced petitioner to a 210-term of imprisonment.

Accordingly, there was no Booker or Apprendi violation in this case.

37

neither a Booker violation20 nor an Apprendi violation.

8. All that remains of Kimbrough’s § 2255 motion are the “claims”

which he makes reference to in his attached “affidavit,” that is, that his PSI “is

fraud and fabricated[]” and that he “pled guilty to distributing 3.8 grams of

crack cocaine with the understanding . . . [he] would get 70 months[.]” (Doc.

35, Attached Affidavit) Petitioner has not established that any portion of his

PSI was fabricated (or constitutes a fraud); therefore, he is clearly not entitled

to any relief based on this claim. Moreover, petitioner has set forth no

plausible explanation for this Court to believe, particularly in light of his

significant criminal history, that he could have ever had the understanding that

Case 1:08-cr-00150-WS-C Document 41 Filed 02/05/10 Page 37 of 41
21 Kimbrough is not entitled to an evidentiary hearing in this case in light of his

wholly conclusory allegations. Tejada v. Dugger, 941 F.2d 1551, 1559 (11th Cir. 1991) (“A

petitioner is not entitled to an evidentiary hearing . . . ‘when his claims are merely “conclusory

allegations unsupported by specifics” or “contentions that in the face of the record are wholly

incredible.”’”), cert. denied sub nom. Tejada v. Singletary, 502 U.S. 1105, 112 S.Ct. 1199, 117

L.Ed.2d 439 (1992).

38

he would be imprisoned for 70 months by pleading guilty to Count One of the

Indictment. In fact, he was specifically informed during his guilty plea

proceeding not only that the statutory maximum was 20 years but, as well, that

a guidelines determination could not be made until after completion of the

presentence report and, therefore, any guidelines sentence imposed could well

be different from any estimate given him by his attorney or anyone else (Doc.

38, Guilty Plea Tr., at 8 & 9-10). Accordingly, the undersigned finds

Kimbrough’s conclusory 70-month sentence argument to be without any

merit.21

9. In consideration of the foregoing, the Magistrate Judge

recommends that the Court deny Kimbrough’s motion to vacate, set aside or

correct his sentence under 28 U.S.C. § 2255. 

10. Pursuant to Rule 11(a) of the Rules Governing § 2255

Proceedings, the undersigned recommends that a certificate of appealability in

this case be denied. 28 U.S.C. foll. § 2255, Rule 11(a) (“The district court must

issue or deny a certificate of appealability when it enters a final order adverse

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39

to the applicant.”). The habeas corpus statute makes clear that an applicant is

entitled to appeal a district court’s denial of his habeas corpus petition only

where a circuit justice or judge issues a certificate of appealability. 28 U.S.C.

§ 2253(c)(1). A certificate of appealability may issue only where “the

applicant has made a substantial showing of the denial of a constitutional

right.” 28 U.S.C. § 2243(c)(2). Where, as here, a habeas petition is being

denied on the merits of any and all underlying constitutional claims, a COA

should issue only when the petitioner demonstrates “that reasonable jurists

would find the district court’s assessment of the constitutional claims

debatable or wrong[,]”Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595,

1604, 146 L.Ed.2d 542 (2000); see also id. at 483-484, 120 S.Ct. at 1603-1604

(“To obtain a COA under § 2253(c), a habeas prisoner must make a substantial

showing of the denial of a constitutional right, a demonstration that, under

Barefoot, includes showing that reasonable jurists could debate whether (or,

for that matter, agree that) the petition should have been resolved in a different

manner or that the issues presented were ‘“adequate to deserve encouragement

to proceed further.”’”); see Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct.

1029, 1039, 154 L.Ed.2d 931 (2003) (“Under the controlling standard, a

petitioner must ‘sho[w] that reasonable jurists could debate whether (or, for

Case 1:08-cr-00150-WS-C Document 41 Filed 02/05/10 Page 39 of 41
40

that matter, agree that) the petition should have been resolved in a different

manner or that the issues presented were “adequate to deserve encouragement

to proceed further.”’”). The undersigned recommends that the Court find that

reasonable jurists could not debate whether Kimbrough’s § 2255 motion to

vacate should be resolved in a different manner or that any of the issues

presented are adequate to deserve encouragement to proceed further.

Accordingly, petitioner is not entitled to a certificate of appealability.

CONCLUSION

The Magistrate Judge is of the opinion that petitioner’s rights were not

violated in this cause and that his request to vacate, set aside or correct his

sentence should be DENIED. Petitioner is not entitled to a certificate of

appealability and, therefore, he is not entitled to appeal in forma pauperis.

The instructions which follow the undersigned’s signature contain

important information regarding objections to the report and recommendation

of the Magistrate Judge.

DONE this the 5th day of February, 2010.

 s/WILLIAM E. CASSADY 

UNITED STATES MAGISTRATE JUDGE

Case 1:08-cr-00150-WS-C Document 41 Filed 02/05/10 Page 40 of 41
22 Effective December 1, 2009, the time for filing written objections was extended

to “14 days after being served with a copy of the recommended disposition[.]” Fed.R.Civ.P.

72(b)(2). 

41

MAGISTRATE JUDGE'S EXPLANATION OF PROCEDURAL RIGHTS AND

RESPONSIBILITIES FOLLOWING RECOMMENDATION, AND

FINDINGS CONCERNING NEED FOR TRANSCRIPT

l. Objection. Any party who objects to this recommendation or anything in it must,

within fourteen (14) days of the date of service of this document, file specific written

objections with the Clerk of this court. Failure to do so will bar a de novo determination by

the district judge of anything in the recommendation and will bar an attack, on appeal, of the

factual findings of the Magistrate Judge. See 28 U.S.C. § 636(b)(1)(C); Lewis v. Smith, 855

F.2d 736, 738 (11th Cir. 1988); Nettles v. Wainwright, 677 F.2d 404 (5th Cir. Unit B,

1982)(en banc). The procedure for challenging the findings and recommendations of the

Magistrate Judge is set out in more detail in SD ALA LR 72.4 (June 1, 1997), which

provides that:

A party may object to a recommendation entered by a magistrate judge in

a dispositive matter, that is, a matter excepted by 28 U.S.C. § 636(b)(1)(A),

by filing a ‘Statement of Objection to Magistrate Judge’s Recommendation’

within ten days22 after being served with a copy of the recommendation,

unless a different time is established by order. The statement of objection

shall specify those portions of the recommendation to which objection is

made and the basis for the objection. The objecting party shall submit to

the district judge, at the time of filing the objection, a brief setting forth the

party’s arguments that the magistrate judge’s recommendation should be

reviewed de novo and a different disposition made. It is insufficient to

submit only a copy of the original brief submitted to the magistrate judge,

although a copy of the original brief may be submitted or referred to and

incorporated into the brief in support of the objection. Failure to submit a

brief in support of the objection may be deemed an abandonment of the

objection. 

A magistrate judge's recommendation cannot be appealed to a Court of Appeals;

only the district judge's order or judgment can be appealed.

2. Transcript (applicable Where Proceedings Tape Recorded). Pursuant to 28 U.S.C.

§ 1915 and FED.R.CIV.P. 72(b), the Magistrate Judge finds that the tapes and original

records in this case are adequate for purposes of review. Any party planning to object to this

recommendation, but unable to pay the fee for a transcript, is advised that a judicial

determination that transcription is necessary is required before the United States will pay the

cost of the transcript.

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