IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

DON RAY THOMPSON, :

Petitioner, :

vs. : CIVIL ACTION NO. 09-0611-WS

UNITED STATES OF : CRIMINAL ACTION NO. 08-0069-WS

AMERICA,

:

Respondent.

REPORT AND RECOMMENDATION

Petitioner, Don Ray Thompson, 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. 73). 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 Thompson’s § 2255 motion be denied and

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

FINDINGS OF FACT

1. On February 28, 2008, Thompson was charged by indictment

with one count of conspiracy to possess with intent to distribute more than

50 grams of crack cocaine in violation of 21 U.S.C. § 846, one count of

Case 1:08-cr-00069-WS-B Document 83 Filed 03/18/10 Page 1 of 50
2

possession with intent to distribute 5.2 grams of crack cocaine on February

21, 2008 in violation of 21 U.S.C. § 841(a)(1), and one count of possession

with intent to distribute 20 units of 3,4-methylendioxymethamphetamine,

Ecstasy, on February 21, 2008 in violation of 21 U.S.C. § 841(a)(1). (Doc.

1)

2. At the pretrial conference on April 8, 2008, Thompson,

through his attorney, Robert Ratliff, Esquire, notified the Court of his intent

to change his plea to guilty. (See Doc. 27)

3. On April 14, 2008, the parties filed a plea agreement and

factual resume with the Court. (Doc. 30) The plea agreement reads, in

relevant part, as follows:

PLEA AGREEMENT

The above[-]captioned defendant, 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 rights as follows:

a. To be represented by an attorney;

b. To plead not guilty;

c. To have a trial by an impartial jury;

d. To confront and cross-examine witnesses and to

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3

call witnesses and produce other evidence in his defense;

 e. To not be compelled to incriminate himself.

WAIVER OF RIGHTS AND PLEA OF GUILTY

2. The defendant waives rights b through e, listed

above, and pleads guilty to Count 1 of the Indictment, charging

a violation of Title 21, United States Code, Section 846,

conspiracy to possess with intent to distribute a mixture and

substance containing a detectable amount of cocaine base,

commonly known as crack cocaine, a Schedule II controlled

substance.

...

3. The defendant expects the Court to rely upon his

statements here and his response to any questions that he may be

asked during the guilty plea hearing.

4. The defendant is not under the influence of

alcohol, drugs, or narcotics. He is certain that he is in full

possession of his senses and mentally competent to understand

this Plea Agreement and the guilty plea hearing which will

follow.

5. The defendant has had the benefit of legal counsel

in negotiating this Plea Agreement. He has discussed the facts

of the case with his attorney, and his attorney has explained to

the defendant the essential legal elements of the criminal

charges which have been brought against him. The defendant’s

attorney has also explained to the defendant [his] understanding

of the United States’ evidence.

6. The defendant understands that the United States

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

criminal charges beyond a reasonable doubt. The defendant and

his counsel have discussed possible defenses to the charges.

The defendant believes that his attorney has represented him

faithfully, skillfully, and diligently, and he is completely

satisfied with the legal advice of his attorney.

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4

7. 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.

8. 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 is pleading guilty because he knows that he is

guilty.

PENALTY

9. The maximum penalty the Court could impose as

to Count 1 of the Indictment is:

a. 10 years to life imprisonment;

b. A fine not to exceed $4,000,000;

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 could be

imprisoned for the entire term of supervised release;

d. A mandatory special assessment of $100.

SENTENCING

10. 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 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

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5

with the Guidelines. The defendant understands that he will not

be allowed to withdraw his 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.

11. 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.

12. 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.

13. Both the defendant and the United States are free

to allocute fully at the time of sentencing.

14. The defendant agrees to tender $100 to the United

States District Court Clerk in satisfaction of the mandatory

special assessment in this case. The United States reserves the

right to withdraw any favorable recommendation it may agree

to within this document if the defendant fails to pay the special

assessment prior to or at the time of his sentencing.

UNITED STATES’ OBLIGATIONS

15. The United States will not bring any additional

charges against the defendant related to the facts underlying the

Indictment and will move to dismiss the remaining counts in the

Indictment as to the defendant 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.

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

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16. The defendant agrees to cooperate with the

United States under the following terms and conditions:

a. The defendant shall fully, completely,

and truthfully respond to all questions put to him by law

enforcement authorities regarding the underlying facts of the

offenses with which he is charged, as well as the underlying

facts of any criminal offenses, state or federal, of which he

has information or knowledge.

b. The defendant acknowledges that he

understands that he shall provide truthful and complete

information regarding any offense about which he has

knowledge or information regardless of whether or not law

enforcement authorities question him specifically about any

such offense. This provision requires the defendant to divulge

all information available to him even when law enforcement

authorities do not know about the defendant’s involvement,

knowledge or information relating to any particular offense. 

This requirement extends to any and all persons about whom

the defendant has such knowledge or information.

c. The defendant agrees to cooperate

completely with all law enforcement authorities in any

matters to which his cooperation may be deemed relevant by

any law enforcement authority. The defendant agrees to fully

comply with all instructions from law enforcement authorities

regarding the specific assistance he shall provide. This

includes, but is not limited to, consenting to monitored and/or

recorded telephone conversations, participating in undercover

operations, testifying completely and truthfully before any

grand jury, at any pre-trial proceeding, during any trial, and

any post-trial proceeding.

d. If the United States deems it necessary,

the defendant may be required to take a polygraph

examination[] which will be administered by a government

polygrapher. The defendant agrees that the results of any

polygraph examination may be used by the United States in

its evaluation of whether or not there has been substantial

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7

assistance, and are admissible to rebut an assertion by the

defendant of bad faith or unconstitutional motive on the part

of the United States. It is also the intent of the parties that the

results of any polygraph examination are admissible at the

defendant’s sentencing, or in the event that the defendant

appears as a witness at any proceeding to testify under oath

about events relating to the subject matter of the polygraph

examination.

e. The defendant agrees to turn over to the

United States any and all documents, tapes and other tangible

objects which are in his possession or under his control and

which are relevant to his participation in and knowledge of

criminal activities whether relating to the charged offense or

not. This obligation is a continuing one and includes

materials that the defendant may acquire, obtain or have

access to after the execution of this agreement.

f. The defendant agrees to confess the

forfeiture to the United States of all properties which

represent proceeds of his criminal activities or which

facilitated any aspect of these illegal activities. The defendant

also agrees to identify the assets of any other person which

were obtained through or facilitated the defendant’s illegal

activities or the illegal activities of another.

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

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8

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 interview with law

enforcement authorities does not constitute substantial

assistance for this purpose. The defendant also understands

that should he provide untruthful information to the United

States at any time, or should he 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

17. The defendant acknowledges that he 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. “Any sentence

imposed” includes any proceeding relating to the modification

or revocation of the supervised release term.

18. With the limited exceptions noted below, the

defendant also waives his 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.

19. 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 

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9

 statutory maximum;

b. Any punishment that constitutes an upward 

departure from the guideline range; or

c. A claim of ineffective assistance of counsel.

. . .

VIOLATION OF AGREEMENT

21. The defendant understands that if he violates

any provision of this agreement, the United States will be free

from any obligations imposed by this agreement and will be

free to prosecute the defendant on any charges of which it has

knowledge. In such event, the defendant agrees not to assert

any objections to prosecution that he might have under the 6th

Amendment and/or Speedy Trial Act.

ENTIRETY OF AGREEMENT

22. This document is the complete statement of the

agreement between the defendant and the United States and

may not be altered unless done so in writing and signed by all

the parties.

(Doc. 30, at 1, 2-8 & 9-10 (emphasis in original)) Appearing before

Thompson’s signature on page 11 of the agreement is this paragraph:

“I have consulted with my counsel and fully understand all my rights with

respect to the offenses 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

Case 1:08-cr-00069-WS-B Document 83 Filed 03/18/10 Page 9 of 50
1 The Factual Resume, which Thompson also signed, reads as follows:

The United States of America, by and through the undersigned Assistant

United States Attorney, and the defendant, by and through his attorney of record,

agree and stipulate that the Government can prove the following facts beyond a

reasonable doubt:

Elements of the Offense

Count one: 21 U.S.C. § 846, conspiracy to possess with intent to

distribute crack cocaine, a Schedule II controlled substance.

There are two elements to this offense: first, that two or more individuals

came to a mutual understanding to commit an unlawful act, in this case, the

distribution of crack cocaine; and second, that the defendant, knowing of the

unlawful purpose of the plan, knowingly and intentionally joined in the plan. The

Government has alleged that more than 50 grams of crack cocaine were involved

in the conspiracy.

Facts

A confidential informant provided information to Prichard Police Officers

that Don Ray Thompson, Jr., was involved in drug distribution. On February 4,

2008, the informant saw Thompson in possession of 112 grams of crack cocaine. 

Later in the month, the informant was at Thomson’s house, and reported to the

police that he saw marijuana, a gun, and an ounce and a half of crack cocaine. 

Later that day, the informant was asked by Thompson to give him a ride to

another house. Thompson’s residence was on Sandalwood, but he regularly sold

drugs from a house on Goodpay, where he paid utilities and a fee to the owner of

the house to use it for drug distribution. Thompson told the informant that he was

going to sell the crack and a half ounce of marijuana there. The informant

notified the police, and surveillance officers followed the informant and the

defendant as they drove to the house on Goodpay.

On February 21, 2008, the informant was equipped by the police with

electronic devices and called Thompson to arrange a controlled buy of crack

cocaine. Cpl. Daniel Stubbs heard the informant make the call, as a result of

which the informant made a controlled buy of crack cocaine. The officers

obtained search warrants for both residences. They executed the one at Goodpay,

the drug house, first. Thompson was there. They recovered a gun from the first

10

to it. I hereby stipulate that the Factual Resume,1 incorporated herein, is 

Case 1:08-cr-00069-WS-B Document 83 Filed 03/18/10 Page 10 of 50
bedroom and searched the living room, including the sofa. Thompson was seated

on the sofa while the officers continued to search. Major Marvin Whitfield stood

him up to advise him of his rights and determine whether he wanted to make a

statement, and Cpl. Stubbs removed 5.2 grams of crack cocaine from the sofa

where Thompson had been sitting.

Thompson agreed to make a statement, and he admitted that the crack

cocaine in the sofa and the gun were his. He also admitted that he had ecstasy

tablets at the house on Sandalwood, and the police took him with them to execute

the warrant there. They found 20 tablets of MDMA in the pocket of an article of

clothing in his room. They also found a magazine for the gun recovered at the

Goodpay house, and a scale. Thompson said he used that scale to weigh

marijuana. Thompson also said the crack he had that day had been supplied by

Paul Antonio Burke. Thompson said he had known Burke for about 6 months. 

Two days earlier, he had bought about a half-ounce of crack from Burke for $300. 

Burke delivered the drugs in a 2006 Dodge Charger. He estimated he had

received a total of about two ounces of crack cocaine from Burke during the last

six months.

Thompson also admitted that he had drug dealings with “Q” and “Kelly,”

who were subsequently identified as Quentin King and Ivy Kelly Williams. 

Thompson attempted to arrange an undercover drug deal with Burke, but Burke

became suspicious and fled the scene on foot. Thompson made telephone contact

with Williams, ordering additional “yams,” his code for crack cocaine. Williams

agreed, and arrived at the meeting location as a passenger in a car with Quentin

King. Williams’ brother, Nathaniel Willie Williams, was in the back seat of the

vehicle. Williams sold Thompson .7 grams of crack cocaine. The officers at the

scene recovered the crack cocaine from Thompson.

Other police officers performed a traffic stop of the vehicle, and Williams

and his brother both fled. Both were apprehended after short pursuits by the

officers. Williams was arrested on state charge[s] of distribution of crack cocaine

and transported to the police station. King, the driver, was not charged at that

time.

The parties agree that the defendant is accountable for 215 grams of crack

cocaine and 20 tablets of MDMA, and that the Government can prove those

amounts beyond a reasonable doubt.

(Doc. 30, FACTUAL RESUME, at 1-2)

11

true and accurate in every respect, and that had the matter proceeded to

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12

trial, the United States could have proved the same beyond a reasonable

doubt.” (Id. (emphasis supplied))

4. On April 14, 2008, Thompson entered a counseled guilty plea

to Count One of the Indictment. (Doc. 68, Guilty Plea Transcript) 

THE COURT: Let me get each of you to raise your right

hand and take an oath, please.

(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. Thompson?

DEFENDANT THOMPSON: Yes, sir.

...

THE COURT: And Mr. Thompson, would you

state your true, full name for the record.

DEFENDANT [THOMPSON]: Don Ray

Thompson, Jr.

THE COURT: What is your age?

DEFENDANT THOMPSON: 32.

THE COURT: And how much education have

you completed?

DEFENDANT THOMPSON: 12th. Well, I got a

little college, sir.

THE COURT: Mr. Ratliff, to the best of your

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13

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

plea today?

MR. RATLIFF: He is, Judge.

...

THE COURT: How about you, Mr. Thompson,

have you ever been treated for any mental illness or addiction

to narcotic drugs of any kind?

DEFENDANT THOMPSON: No, sir.

...

THE COURT: Are any of you currently under the

influence of any drug or medication or alcoholic beverage of

any kind? . . . Mr. Thompson?

DEFENDANT THOMPSON: (No audible

response.)

THE COURT: Are you currently under the

influence of any drug or medication?

DEFENDANT THOMPSON: Medication for high

blood pressure . . . .

...

THE COURT: . . . Is that affecting you in any

way?

DEFENDANT THOMPSON: No, sir, not at all.

...

THE COURT: Have each of you received a copy

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

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

charge contained in the indictment? . . . Mr. Thompson?

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14

DEFENDANT THOMPSON: Yes, sir.

...

THE COURT: Is it necessary that I read the

indictment to you . . . Mr. Thompson?

DEFENDANT THOMPSON: No, sir.

...

THE COURT: Now, 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.

Thompson?

DEFENDANT THOMPSON: Yes, sir.

...

THE COURT: Now, I’ve been furnished a

written plea agreement in each of your cases, and this plea

agreement appears to have your signature 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.

Thompson?

DEFENDANT THOMPSON: Yes, sir.

...

THE COURT: By signing this document, you are

acknowledging that you have reviewed it, that you’ve read it

and reviewed it with your attorney, that you understand the

terms and conditions of the plea agreement and the factual

resume, and that you agree with it. 

Is that true . . . Mr. Thompson?

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15

DEFENDANT THOMPSON: Yes, sir.

...

THE COURT: . . . 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. Thompson?

DEFENDANT THOMPSON: No, sir.

...

THE COURT: Now, the penalties that could be

imposed if convicted of the charges in this case are outlined in

the plea agreement, page three. And if convicted of Count

One of the indictment, and this is for each of you, the

punishment that could be imposed would be 10 years to life in

prison, a fine not to exceed four million dollars, a supervised

release term up to five years, and a mandatory special

assessment of $100. 

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

DEFENDANT THOMPSON: Yes, sir.

...

THE COURT: Are any of you presently on

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

may be subject to revocation if convicted in this case? 

...

THE COURT: All right. How about for Mr.

Thompson?

MR. RATLIFF: No, Your Honor.

...

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THE COURT: And also for each of you, if

convicted of the charges in this case, you may 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. Because it’s a drug offense, you could

lose certain Federal benefits. 

Do you understand that . . . Mr. Thompson?

DEFENDANT THOMPSON: 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. Thompson?

DEFENDANT THOMPSON: 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. Thompson?

DEFENDANT THOMPSON: 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.

Thompson?

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17

DEFENDANT THOMPSON: Yes, sir.

...

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. Thompson?

DEFENDANT THOMPSON: Yes, sir.

...

THE COURT: Under some circumstances, you

and 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 that 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 imposed 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. Thompson?

DEFENDANT THOMPSON: 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. Thompson?

DEFENDANT THOMPSON: Yes, sir.

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...

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 by the Court, you will not be able to withdraw your

plea. The time to make that decision is now. Do you

understand that . . . Mr. Thompson?

DEFENDANT THOMPSON: Yes, sir.

...

THE COURT: You have the right to plead not

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

plea. You would then have the right to 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 to 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. Thompson?

DEFENDANT THOMPSON: Yes, sir.

...

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19

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. Thompson?

DEFENDANT THOMPSON: Yes, sir.

...

THE COURT: Also included in your plea

agreement is a factual resume which contains a statement of

the elements of the offense which is charged in Count One of

the indictment, and that states a violation of Title 21, United

States Code, Section 846. And the elements of that offense

are that two or more individuals came to a mutual

understanding to commit an unlawful act; and that you,

knowing of the unlawful purpose of the plan, knowingly and

intentionally joined in the plan.

. . .

THE COURT: Thank you. And for Mr. Williams

and Mr. Thompson, the Government also alleges that there

were more than 50 grams of crack cocaine involved in the

conspiracy. Do you understand that those are the elements of

the offense to which you are pleading guilty . . . Mr.

Thompson?

DEFENDANT THOMPSON: Yes, sir.

...

THE COURT: And do you fully understand that

if there’s 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 . . . Mr.

Thompson?

Case 1:08-cr-00069-WS-B Document 83 Filed 03/18/10 Page 19 of 50
20

DEFENDANT THOMPSON: Yes, sir.

...

THE COURT: Also included in your factual

resume is a statement of facts or statement of offense conduct. 

Did you, in fact, commit the acts do the things that you have

admitted to in this statement of facts, . . . Mr. Thompson?

DEFENDANT THOMPSON: Yes, sir.

...

THE COURT: All right. 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, Mr. [Thompson], guilty or

not guilty?

...

DEFENDANT THOMPSON: Guilty.

...

THE COURT: Mr. [Ratliff], are you aware of any

reason the Court should not accept Mr. [Thompson’s] guilty

plea at this time?

...

MR. RATLIFF: No, sir.

...

THE COURT: . . . Then it is the finding of this

Court in the case of the United States versus . . . Don Ray

Thompson, Jr. . . . that . . . 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

Case 1:08-cr-00069-WS-B Document 83 Filed 03/18/10 Page 20 of 50
2 In addition, Thompson’s attorney argued the following: “The Defendant objects

to the conclusion in ¶ 60 that he does not qualify for further reduction of sentence under the

provisions of the safety-valve. Defendant submits that as the firearm enhancement is not proper

in this case, he should receive the benefit of the safety-valve and thus a further two point

reduction in his adjusted offense level and a guideline recommended sentencing range of 87-108

months based on an adjusted guideline range of 29.” (Doc. 34, at 2)

21

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 4, 5, 7, 8, 9, 10, 11, 12-13, 13, 13-14, 14, 15, 15-16, 16, 16-17, 17,

17-18, 19, 20 & 21)

5. The Presentence Investigation Report was initially prepared

by the Probation Office on June 11, 2008 and provided to counsel. (See

Doc. 39) Therein, Thompson and his attorney were notified that his offense

level was being increased by two levels because of his possession of a

firearm during the commission of the offense. (Id. at 7, ¶ 19) Thompson’s

attorney specifically objected to this paragraph of the report, arguing that

“the firearm in question was lawfully purchased and possessed and not

connected to the instant offense.” (Doc. 34, at 1; see also Doc. 35, at 3-4)2

The probation officer added an addendum to her report on July 15, 2008,

and addressed the defendant’s primary objection, as follows: “If a weapon

is present, the firearm enhancement under U.S.S.G. § 2D1.1(b)(1) should be

applied, unless the defendant can demonstrate that it is ‘clearly improbable’

that the weapon was connected to the offense . . . which does not appear to

Case 1:08-cr-00069-WS-B Document 83 Filed 03/18/10 Page 21 of 50
3 The guidelines produced a range of 120 to 135 months. (Doc. 39, SENTENCING

RECOMMENDATION, at 1)

22

be the case.” (Doc. 39, ADDENDUM TO THE PRESENTENCE REPORT,

at 1) Based upon a total offense level of 31, and a criminal history category

of I, the probation officer recommended that Thompson receive a 120-

month term of imprisonment,3

 a 5-year term of supervised release following

his release from prison, and a special assessment of $100.00. (Id. at 1-3)

6. Because the parties could not agree on the total offense level,

the following occurred during the sentencing hearing on September 4, 2008:

THE COURT: . . . Mr. Ratliff, I note that there’s

an objection to the firearm enhancement in the case. I assume

that objection is still on the table; is that correct?

MR. RATLIFF: It is, Judge.

THE COURT: . . . I note that there are no

objections to the content of the Presentence Report with

regard to the factual scenario. And I assume that any

testimony is just going to be offered to support what’s already

in the Presentence Report?

MS. BEDWELL: Yes, sir. And we probably can

flesh out some of the details that might assist the Court if it’s

necessary to do that. In our view, it’s not really a close call.

The Defendant was using the residence on Goodpay as a

location where he specifically sold drugs. The informant told

the police that he took the weapon with him when he left the

other residence. He had it there with him when they arrived to

execute the search warrant. It was recovered from the house.

And we believe that that’s a sufficient evidentiary basis. But I

do have the officer here, and he’s prepared to flesh that out if

the Court finds it necessary.

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23

MR. RATLIFF: Your Honor, we accept those facts

as essentially correct. Our point here is that Mr. Thompson

had a lawful right to possess that firearm. He had a pistol

permit. He purchased that firearm from an authorized firearm

dealer. When he arrived at the Goodpay residence, the firearm

was placed in an area separate and apart from where Mr.

Thompson was engaging in drug-related activity and drugrelated transactions; and therefore, our argument is that

firearm does not rise to the level necessary under 2D1.1.

THE COURT: . . . Paragraph seven states that the

confidential informant observed on February 4, 2008,

Thompson in possession of a hundred and twelve grams of

crack cocaine. Later in the month, the confidential informant

was at Thompson’s house, reported to the police that he saw

half a pound of marijuana, a gun, and an ounce-and-a-half of

crack cocaine

It was later that day . . . that the . . . confidential

informant and Thompson drove to the house on Goodpay

Avenue and, according to the confidential informant,

Thompson was armed with the handgun.

. . . [P]aragraph eight refers to a controlled buy of

crack cocaine followed by a search warrant which was

executed on February 21st, 2008. The gun was recovered in

the house along with drugs. And Mr. Thompson in paragraph

10 makes a statement claiming ownership of the crack cocaine

in the sofa and the gun.

Are those the facts that you say are not in dispute?

MR. RATLIFF: Essentially, Judge, yes, those facts

are not in dispute. The distinction is that where the handgun

was found in the house was in a separate bedroom. And it

references in here that the gun was found in a separate

bedroom while the drug transactions were occurring in the

living room and the front area of the house.

THE COURT: But there’s no dispute that he

Case 1:08-cr-00069-WS-B Document 83 Filed 03/18/10 Page 23 of 50
24

traveled to the house with a gun?

MR. RATLIFF: There’s no dispute that he traveled

to the house with the gun. But Your Honor, I would suggest

that there was no drug-related transactions occurring during

that transit. And you know, our position would be . . .,

especially in light of the recent decision in Heller[,] that Mr.

Thompson had a right, an inalienable right to possess a

firearm for self-defense and self-preservation, and that was

separate and apart from what he was going to do at the

Goodpay residence with respect to the drug transaction.

THE COURT: Does that statement make it

clearly improbable that the gun was not connected to the

controlled substance, possession of the controlled substance

or the possession with intent to distribute the controlled

substance? That’s the standard by which I have to apply it.

It may well be that he has a permit for the gun and he

carries it lawfully on some occasions, but the question is was

it unlawfully possessed on this occasion, on . . . more than one

occasion, because it was connected to the controlled

substances, though? And that’s the issue.

MR. RATLIFF: I would say that the one pertinent

fact that gives rise to the belief that it was not reasonably

connected to the offense was that when Mr. Thompson

arrived at the Goodpay residence, he takes that firearm and he

places it in a separate room of that residence, and then he goes

on to conducting drug-related transactions in a separate part

of the residence, in the living room, while the gun is placed in

the bedroom. And that’s what I would say is what makes it

clearly improbable that it’s connected.

THE COURT: Ms. Bedwell?

MS. BEDWELL: Your Honor, even if the

Defendant feels confident enough at his drug house location

that he doesn’t have to wear the weapon, the transportation of

the drug dealer with his drugs to that location, he was armed

with a gun. And that certainly is a sufficient evidentiary basis

Case 1:08-cr-00069-WS-B Document 83 Filed 03/18/10 Page 24 of 50
25

to support this enhancement.

Whether he could lawfully possess the gun if he wasn’t

a drug dealer is not the point. The point is, and Congress has

made it clear with this – the application of this guideline that

drug dealers who have firearms under [] circumstances like

this, that entitles the Government to request and receive this

enhancement as a sentencing guideline factor. The legality of

the Defendant’s possession of the weapon is beside the point.

THE COURT: Mr Ratliff?

MR. RATLIFF: Nothing further, Your Honor. I

think that Mr. Thompson’s own actions in this case speak to

the fact that the firearm possession was separate and distinct

from the drug-related transactions.

THE COURT: Well . . . the fact that the gun was

found in a room and not physically on Mr. Thompson at the

time of his arrest is certainly a factor the Court considers. But

we also have the information that he traveled to the house for

the drug deal with the drug dealer as a drug dealer, the

confidential informant making arrangements to buy drugs

from him, and he carries a firearm with him.

So . . . the cases where there’s a close issue are those

cases where the gun doesn’t belong to the defendant or there’s

some evidence that the gun was in a safe or in a closet and

had been there for some time, not one that’s transported back

and forth . . . for the purpose of what it appears to be, to

protect the individual during the course of a drug deal.

And that’s what it appears in this case. He doesn’t get

to pick and choose the times that he lawfully and unlawfully

possesses the gun and then try to convince the Court that the

gun . . . some way is not associated with a drug deal.

From ought that I see, assuming that these facts are

undisputed here, . . . the Defendant would not meet his burden

. . . of showing that it’s clearly improbable that the firearm is

not connected to the possession with intent to distribute the

Case 1:08-cr-00069-WS-B Document 83 Filed 03/18/10 Page 25 of 50
26

cocaine in this case.

Ms. Bedwell, are you compelled to present any more

evidence on that issue?

MS. BEDWELL: No, sir, Judge. We are prepared to

do that if the Court finds it necessary, but I think even given

the scenario that’s contained in the Presentence Investigation

Report, which the Defendant does not dispute, that provides

the Court with a sufficient basis to make this finding.

THE COURT: Mr. Ratliff, anything further?

MR. RATLIFF: No, Your Honor.

THE COURT: . . . [B]ased on the . . . undisputed

evidence contained in the Presentence Report and that which

has been articulated to me today, I find that the Defendant’s

objection to the firearm enhancement is not well taken and is

overruled.

Any other matters that we need to take up with regard

to the Presentence Report?

. . . 

MR. RATLIFF: I’m sorry. Normally, the process

of the Court is to allow Mr. Thompson an opportunity to

speak at the end. Mr. Thompson is adamant that he be given

a chance to address the Court, however, regarding the

Presentence Report. So, I’d ask the Court for leave to do that

at this time.

THE COURT: Sure. Come on up, Mr.

Thompson. . . . Let me get you to stand in front of the

microphone, if you would, please. Raise your right hand and

take an oath. . . . Did you want to question him, or does he

just want to make a statement?

MR. RATLIFF: No, Judge. He has a statement that

he wants to make.

Case 1:08-cr-00069-WS-B Document 83 Filed 03/18/10 Page 26 of 50
27

THE COURT: All right. Mr. Thompson.

...

DEFENDANT: . . . I guess first and foremost, I

would like to apologize to the Prosecutor as well as the

Federal agents.

. . . [W]hen I came home from Ohio, the reason for the

gun all together was because I had uncles on drugs, and I had

cousins at my grandmother’s household using drugs, having

shootouts, things of that nature there.

My grandmother, she’s 87 years old. She didn’t want

to live with anyone but me. And when I came home, I stayed

down the street between my uncle’s house and my brother’s

house . . . until my grandmother came home. 

When my grandmother came home, she wrote a letter

to all the police precincts stating that she wanted none of my

uncles or none of my cousins to be in the house with her

because they sold . . . everything from out of her house. They

disrespected her. They had folks knocking on the door at three

or 4:00 in the morning, things of that nature there. They rob

off the avenue where my grandmother lives. They steal. They

do all that. 

The purpose for me having a handgun was just to

protect my grandmother, not even to protect me. I can care

less what anybody take from me. But when the Federal

agents came and they got me, everything that they asked me, I

was truthful with them from the start, from the beginning. 

They said that the gun charge would not be an issue and they

weren’t going to put it in.

The day of my pretrial hearing, my lawyer introduced

himself to me, and the first thing he said that, you know,

police officer[s] were liars, and the only person that I had to

depend on was either my lawyer or the Federal agents.

Well . . . I didn’t want to plead guilty. . . . [L]ike I

Case 1:08-cr-00069-WS-B Document 83 Filed 03/18/10 Page 27 of 50
28

explained to him . . . the drug amounts and everything in the

factual statement were incorrect. I’ve never had them

numbers. I never had them. . . . I’m not a drug dealer, Your

Honor. I’m not a thug.

Your Honor, when I came home, I had 19,000 and

something dollars . . . where you file for unemployment. It

got denied. I appealed it. I knew it was time for me to go

back to work. I was diagnosed with high blood pressure. I

couldn’t go back to work.

You know, listening to and being around the wrong

people, sometimes you get influenced in the wrong ways. 

And I know that I made a mistake. I made a big error in my

life because . . . I went against everything I believed in to

further try to help my family.

But then I didn’t find out that the guilty plea was on

the 14th of April until late in the evening on the 9th of April. 

And my lawyer didn’t tell me; my probation officer told me. 

So, when I went to talk to my lawyer, I told him that I didn’t

want to admit to that stuff because that stuff was not true.

So, I told him I had to talk to another lawyer because I

was supposed to have been able to depend on him. And I

went that Friday and I got in contact with a lawyer. But

unfortunately, he was taking care of some business in Bay

Minette, so he wasn’t able to call me back until Saturday.

Well, Sunday, I called Major Whitfield, and I had a

long talk with [him] over the phone about me pleading guilty

to things that . . . were incorrect. The things that I told were

the facts were the truth from the start to the finish and then,

you know, whoever their witnesses was, they gave them

untrue facts.

And like I explained to them, I know that I did wrong,

but . . . I can only tell you what I know about any situation. 

These guys that I was dealing with, Your Honor, I didn’t

know them just like they didn’t know me, Your Honor. But

unlike them, I don’t owe no one nothing but to love everyone.

Case 1:08-cr-00069-WS-B Document 83 Filed 03/18/10 Page 28 of 50
29

So, I’m not going to bear false witnesses on people to

get my time cut and to do things that’s unright and unjust,

because to allow them to do it to me is unright and unjust.

. . .

So, from the beginning when they asked me for my

help, and I helped them, they went about all wrong, they had

put my life in danger then the way that it happened. And they

assured me when we got back for the debrief that . . . the

United States were going to protect you. We’re going to take

care of you is what they said to me. So, I did everything that I

could to help them.

Well, the night that I spoke to Major Whitfield, Major

Whitfield told me that the next day, that Monday morning

was when I came in to report. He had me sign the plea

agreement maybe 10, 15, 20 minutes before we came in the

courtroom. Nothing was read to me.

But like I explained to my lawyer []– he told me . . . if

they give you 10 years, all the United States Government has

to do is walk into these Federal holding cells, hold up your

pictures, and [] anyone who doesn’t know you . . . they’ll say

that they dealt with you, they can just constantly stack more

time and more time and more time on you.

Well, I went from the beginning at the POC, I was on a

conspiracy from a five to 20 side. Somehow I wound up on

the conspiracy side from a 10 to life with folks just stacking

stuff on me, stuff that didn’t belong.

But now my lawyer says that conspiracy means that if

you are a basketball and you’re just a letter inside a ball, then

you’re the whole thing. When I talked to another lawyer, the

lawyer said that it’s more like if you are a rim, and if you are

a spoke in the rim to keep the rim turning.

But the problem is, I see where I was a spoke for a 13-

inch rim, and in order to make that spoke work for 18 or a 22,

you have to take that spoke out and you have to add stuff that

Case 1:08-cr-00069-WS-B Document 83 Filed 03/18/10 Page 29 of 50
30

doesn’t belong in order to fit that spoke back in again, which

is unfair and unjust.

My lawyer told me that they didn’t have to find me

guilty by a reasonable doubt; they only have to find me guilty

by probable cause. And I have too much in my life at stake

for probable cause. But I don’t want to sit away for 10 years

for something I didn’t do. I know I don’t want to sit away for

30 or 40.

So, when I spoke to Major Whitfield, Major Whitfield

said the best thing for me to do is just come in, say that I

accept the guilty plea. It won’t be no time at all, probation

this, probation that. Say he spoke to the U.S. prosecutor and

say that he took her out to dinner in order for her to take the

gun charge away because I gave to them–

MS. BEDWELL: Your Honor, that is absolutely false. 

And I have sat here as long as I could and listened to this

Defendant accuse the Government of improper conduct, but

that is the last straw. And I object to it and move that it be

stricken.

THE COURT: All right. Mr. Thompson, you

have a right to make a statement to this Court, but . . . I would

caution you to be very careful about being disrespectful or

making falsehoods or making false statements to this Court. 

You’re not helping yourself at all.

DEFENDANT: Your Honor, all I’ve done was

told the truth from the start.

MS. BEDWELL: Your Honor, we move the Court

to revoke the Defendant’s acceptance of responsibility. It is

plain from his conduct and his attitude that he has not

accepted responsibility for what he’s done. . . .

THE COURT: You’re digging the hole deeply

here, Mr. Thompson.

DEFENDANT: Okay. Your Honor, what I’m

Case 1:08-cr-00069-WS-B Document 83 Filed 03/18/10 Page 30 of 50
31

saying is even with my lawyer, even with my lawyer saying to

me that, okay, acceptance of responsibility. Acceptance of

responsibility, Your Honor, I pled guilty to something that I

didn’t do because my lawyer told– I knew if I accepted . . .

responsibility, three points would be lifted from what they

told me in the POC.

Now, they take out the things that they say I did

wrong, and they didn’t take them out, they added those

numbers into the Count One conspiracy that they asked me to

do. When I told my lawyer that a lot of the things on the

factual [resume] weren’t true, my lawyer said either I’m going

to say guilty to all of it or not guilty to none of it.

Now, acceptance of responsibility, I said guilty

because the things that they said that they threw away, Your

Honor, they put into the conspiracy.

MS. BEDWELL: Your Honor, he just said he pled

guilty to what he didn’t do. We move the Court to revoke his

acceptance of responsibility.

...

DEFENDANT: . . . The only thing that I can tell

you is the truth. When I spoke to Major Whitfield over the

phone, sir, all . . . I’m telling you the reasons why I came and

said that I was guilty all together. I’m not trying to dig a hole

deeper for myself. I’m not trying to play games with anyone

here. I know that I did wrong. I know that I made a mistake. 

And at the end of the day, I’m faced with what I’m faced with

because of the one mistake that I made.

...

But on top of the mistake that I made, there are things

that have been said, things that are not right, not correct,

because I would spend [$]40, $50, Your Honor, and make $47

back. I’ve . . . never had money to spend to those numbers

and those amounts. My lawyer said the amount is not the

problem. The amount really doesn’t matter, you know, but

Case 1:08-cr-00069-WS-B Document 83 Filed 03/18/10 Page 31 of 50
32

obviously everything matters. It seems like nothing matters to

no one when it’s concerning me.

THE COURT: Anything further?

DEFENDANT: Yes. One more time, I would like

to deeply, deeply apologize if I’ve offended anyone, if I hurt

anyone, if I disrespected anyone. But I was only trying to

lead you to let you know the reason why I accepted my

responsibility for something that I did plus the things that I

didn’t do was because I thought that it would make it better

on myself. But obviously, you know, me being ignorant to

the law is me being ignorant to the law. And I still don’t

know the law. I don’t know more today than I knew when I

got into this mess.

I know when the U.S. Government said that, you

know, I was responsible, they was responsible for me and

they would take care of me, Your Honor. Your Honor, when

I started getting threatening messages and things of that there,

Your Honor, I called Major Whitfield and spoke to him about

it.

For the past six months, I’ve been on pretrial release. I

haven’t had an ankle bracelet or anything, Your Honor. I

stayed in the corner of a room in my house and read the Bible.

That’s all I did. Was afraid to go to church because the church

that I attend has cameras. Because when I spoke to Major

Whitfield telling him that my life was put in danger, he

replied to me, well, no one said nothing to me about it, so

you’re okay. But I’m not okay when I put my life once again

in folks’ hands that I think is supposed to protect me and

stand by me, and it doesn’t happen.

Nothing further, Your Honor.

THE COURT: . . . Mr. Ratliff, anything further

with regard to the Presentence Report?

MR. RATLIFF: No, Judge.

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33

THE COURT: . . . Then the Court will adopt the

Presentence Report as published, noting that the Sentencing

Guidelines have been accurately calculated.

Also, I will accept all of the factual information in the

report, there being no objections to the factual information

that’s contained in the report. The base offense level is 32. 

There’s a two-level enhancement for possession of a firearm.

Mr. Thompson, you are dangerously close to losing

acceptance of responsibility. I’m quite confused by what you

have told me. [On the] one hand, you say you’re not a drug

dealer; on the other hand, you say you made a mistake. The

Presentence Report is full of your statements to law

enforcement about your drug dealings and, you know, there’s

no question in my mind that you pled guilty because you are

guilty. And for you to stand there and say that you are not a

drug dealer but you made a mistake is inconsistent, it’s

inconsistent with what is in the Presentence Report which is

chock full of your drug dealings.

So, if you want to make another statement here, you

are real close to losing acceptance of responsibility, and the

sentence is going to go up much higher if you do. You

understand that?

DEFENDANT: Yes, sir.

THE COURT: Okay. Make your statement then.

DEFENDANT: Your Honor, what I’m saying is

that . . . I had made a statement, and the statement that I made

is the same statement that I stand for right now, Your Honor.

Your Honor, . . . the amounts that I’ve purchased from

the people that I’ve dealt with . . . were the only amounts that

I’ve purchased. And the only thing that I was stating, Your

Honor, were that from the amounts that I admitted to, these

amounts almost tripled.

The mistake that I made was trying to sell drugs. I’m

Case 1:08-cr-00069-WS-B Document 83 Filed 03/18/10 Page 33 of 50
34

not a drug dealer. I’m not a hustler. I tried it, but what I’m

saying is the amounts that I owned up to in the beginning,

those were the amounts that I did. Where the rest of these

amounts came from, Your Honor, is unknowledgeable to me.

THE COURT: Well, the report indicates that you

received a total of about two ounces of crack cocaine from

some guy named Burke.

DEFENDANT: Yes, sir.

THE COURT: You said that.

DEFENDANT: Yes, sir. []

THE COURT: You were dealing with other

individuals who are identified in the report.

DEFENDANT: Yes, sir.

THE COURT: So, the report is just full of

instances where you– whether you say it’s trying to be a drug

dealer or not, you were a drug dealer. And that’s what you

stand guilty of in this court, dealing drugs and possessing a

gun in relation to those.

THE DEFENDANT: Yes, sir.

THE COURT: Now, again, you are welcome to

say whatever you want to say, but I will caution you that you

are again close to losing any credit for acceptance of

responsibility in this case.

Do you want to say anything further?

DEFENDANT: No, sir. 

THE COURT: All right. Then . . . you receive . . .

a three-level reduction for acceptance of responsibility,

producing an adjusted offense level of 31. You have zero

criminal history points, placing you in Criminal History

Case 1:08-cr-00069-WS-B Document 83 Filed 03/18/10 Page 34 of 50
35

Category I, generating a guideline range of 108 to a hundred

and thirty-five months with a mandatory minimum of 120

months.

Ms. Bedwell, you have anything you want to say

before sentence is imposed?

MS. BEDWELL: Your Honor, we believe that the

record supports the Government’s position that the Defendant

has not accepted responsibility for his relevant conduct for the

conduct which forms the basis of the information in the

Presentence Investigation Report, and we object to the

Court’s failure to remove that reduction from the Presentence

Investigation Report.

THE COURT: Note your objection. Mr. Ratliff,

anything further before sentence is imposed?

MR. RATLIFF: No, Your Honor.

[]

DEFENDANT: Your Honor, what I asked my

lawyer was . . . he said that when I came in today, because I

felt like I was misrepresented, I could get another lawyer. I

was wondering, Your Honor, is it possible for me to get

another lawyer? Also, if possible, get Major Whitfield in here

so that he can verify that what I was saying was true, Your

Honor?

. . . [A]ll I know what to do is be truthful about my

actions . . . . I want to go to work. . . . [T]his is not my life. I

made one mistake. I’m here because of the mistake that I

made. . . . 

THE COURT: . . . You’re right, Mr. Thompson,

you made a mistake. And it wasn’t just one mistake, it was

several mistakes. You made a decision to get involved in the

distribution of illegal drugs.

Case 1:08-cr-00069-WS-B Document 83 Filed 03/18/10 Page 35 of 50
36

DEFENDANT: Yes, sir.

THE COURT: And because you did and because

you were caught and because you confessed your actions in

this case and because you determined at one point that you

needed to plead guilty– and I will say you needed to plead

guilty in this case because it would have made no sense to go

to trial with the evidence in this case. You would have been

convicted in front of a jury, and I’m sure Mr. Ratliff told you

that. The evidence is strong in this case against you. It’s

strong, as strong as any case I see in this Court. You were

going to be convicted, so it was in your best interest to plead

guilty.

DEFENDANT: Yes, sir.

THE COURT: You had an opportunity to

cooperate. That’s the way you play the game in this Court. 

You cooperate and you get credit for that cooperation. You

made a decision, and you told me your reason for making the

decision, that you didn’t want to cooperate in this case.

DEFENDANT: Yes, sir.

THE COURT: So, because you did not cooperate

–

DEFENDANT: No, sir, I did.

THE COURT: No, no, no, no. We’re through.

Because you did not cooperate in this case, then the

Government has filed no motion for a downward departure on

your behalf, and they wouldn’t at this point based on what

you’ve just said in this courtroom. . . . Because you did not

and because the Government ha[sn’t] filed a motion for

downward departure in this case, this Court has no discretion

but to give you no less than the mandatory minimum in this

case, which is a hundred and twenty months. That’s . . . the

lowest sentence I can give in this [case].

Case 1:08-cr-00069-WS-B Document 83 Filed 03/18/10 Page 36 of 50
37

I tell you, based on what I’ve heard here today, I might

feel compelled to give you more than that, but I’m going to

find that a sentence of a hundred and twenty months

accomplishes the sentencing objectives of Section 3553(a) of

Title 18. And even if I got the Guidelines wrong in this case,

it is my decision and my feeling that a sentence of a hundred

and twenty months is reasonable and necessary in this case

based on your activities, based on what’s been presented to

the Court today and through the Presentence Report.

Accordingly, pursuant to the Sentencing Reform Act of

1984, it’s the judgment of this Court that you, Don Ray Thompson,

Jr., are hereby committed to the custody of the United States

Bureau of Prisons to be imprisoned for a term of 120 months as to

Count One. The Court recommends that you be imprisoned at an

institution where a residential, comprehensive, substance abuse

treatment program is available.

Upon release from imprisonment, you shall be placed

on supervised release for a term of five years as to Count One. 

Within 72 hours of release from the 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 orders that you also 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 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

Case 1:08-cr-00069-WS-B Document 83 Filed 03/18/10 Page 37 of 50
38

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 or 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 are remaining counts of the

indictment. Does the Government have a motion?

MS. BEDWELL: Move to dismiss remaining counts

as to this Defendant, Your Honor.

THE COURT: The Government’s motion is

granted. Counts Two and Three of the indictment are hereby

dismissed.

(Doc. 61, at 2-8, 8-12, 12-15, 16, 17-18 & 19-26)

7. Thompson’s trial attorney filed written notice of appeal on

September 5, 2008 (Doc. 48) and concurrent therewith a motion to

withdraw (Doc. 49; see also Doc. 61, Sentencing Tr., at 26 (“I’m sure Mr.

Thompson would want to appeal, and ask the Court for permission to

withdraw and the Court appoint new counsel for appeal. I think that would

be in his best interest. THE COURT: All right. We’ll appoint counsel.”)).

Case 1:08-cr-00069-WS-B Document 83 Filed 03/18/10 Page 38 of 50
39

The motion to withdraw was granted on September 9, 2008 (Doc. 50) and

Thompson was appointed Richard Shields, Esquire to pursue his direct

appeal (see Doc. 55). Appellate counsel filed written notice of appeal on

September 22, 2008 (Doc. 52) from the Court’s judgment entered on

September 16, 2008 (Doc. 51). 

8. On April 20, 2009, the Eleventh Circuit granted the United

States’ motion to dismiss Thompson’s appeal “due to a valid appeal waiver

contained in Appellant’s plea agreement[.]” (Doc. 71, at 3) 

9. Thompson filed the instant motion to vacate, set aside, or

correct his sentence pursuant to 28 U.S.C. § 2255 on September 12, 2009.

(Doc. 73, at 10) Therein, petitioner contends that his trial attorney provided

constitutionally ineffective assistance of counsel by (1) failing to timely

inform him, prior to entry of his plea, that the government would seek a

two-level gun enhancement; and (2) failing to assert a breach of the plea

agreement by the government due to its failure to make a motion for

downward departure. (See id. at 4 & 5) In reply to the government’s

response, Thompson arguably modified his first ground of claimed

ineffective assistance of counsel by stating simply that his attorney failed

“to prepare for the firearm enhancement at the [s]entencing hearing.” (Doc.

82, at 7; see also id. at 3 (“The Defendant objected to the firearm

enhancement [and] his [a]ttorney was aware of his objection. Mr. Ratliff did

Case 1:08-cr-00069-WS-B Document 83 Filed 03/18/10 Page 39 of 50
4 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

40

not give written objection nor did he investigate or call witness[es] on the

firearm enhancement. Defendant[,] when he was inform[ed] that the

enhancement issue had not been explored by his [a]ttorney[,] he asked him

to withdraw from the case. . . . Attorney Ratliff fail[ed] to investigate the

firearm enhancement evidence or have a hearing calling for witness[es] on

the issue.”)). 

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 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, Thompson contends that constitutionally

ineffective assistance of counsel entitles him to the relief afforded by 28

U.S.C. § 2255.4

 In order to establish a claim of ineffective assistance of

Case 1:08-cr-00069-WS-B Document 83 Filed 03/18/10 Page 40 of 50
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).

5 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).

41

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

L.Ed.2d 208 (2002).5

 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). 

Case 1:08-cr-00069-WS-B Document 83 Filed 03/18/10 Page 41 of 50
6 “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).

7 “‘[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).

42

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).6

 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,

116 S.Ct. 934, 133 L.Ed.2d 860 (1996).7

 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.”). 

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43

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. The undersigned agrees with the government that the

sentence-appeal waiver contained in Thompson’s plea agreement (see Doc.

30, at ¶¶ 17-19) precludes petitioner from contesting his counsel’s

effectiveness related to his sentencing, Williams v. United States, 396 F.3d

1340, 1342 (11th Cir.) (“While we have not addressed whether a sentenceappeal waiver includes the waiver of the right to challenge the sentence

collaterally in the context of a § 2255 petition asserting ineffective

assistance of counsel, every Circuit to have addressed the issue has held that

a valid sentence-appeal waiver, entered into voluntarily and knowingly,

pursuant to a plea agreement, precludes the defendant from attempting to

attack, in a collateral proceeding, the sentence through a claim of

ineffective assistance of counsel during sentencing. We are persuaded by

the foregoing consistent line of authority from our sister Circuits on this

issue, particularly since a contrary result would permit a defendant to

Case 1:08-cr-00069-WS-B Document 83 Filed 03/18/10 Page 43 of 50
8 The government has read Thompson’s § 2255 motion as raising a third claim of

ineffective assistance of counsel, namely, that his attorney “‘failed to investigate the facts and

circumstances of the case.’” (Doc. 76, at 10; compare id. with Doc. 73, at 4) While the

undersigned agrees with the government that this claim of ineffective assistance of counsel has

been waived by petitioner’s knowing and voluntary plea (compare Doc. 76, at 10-11 with Doc.

71, at 3), it need also be noted that this assertion is conclusory and baseless as petitioner has

pointed to no “facts” or “circumstances” which counsel could or should have found that would

have benefitted petitioner such that he would have pleaded not guilty and would have insisted on

going to trial. In other words, petitioner has established neither prong of the Strickland/Lockhart

standard in this regard.

9 Parenthetically, however, the undersigned would note that petitioner’s firearmenhancement claim misses the mark because his attorney filed a written objection to the firearm44

circumvent the terms of the sentence-appeal waiver simply by recasting a

challenge to his sentence as a claim of ineffective assistance, thus rendering

the waiver meaningless.” (internal citations omitted)), cert. denied, 546

U.S. 902, 126 S.Ct. 246, 163 L.Ed.2d 226 (2005), given the Eleventh

Circuit’s determination that the sentence-appeal waiver was entered into

voluntarily and knowingly (see Doc. 71, at 3 (“Appellee’s motion to

dismiss this appeal due to a valid appeal waiver contained in Appellant’s

plea agreement is GRANTED.”)). In other words, petitioner cannot now

attack in this § 2255 the two-level gun enhancement to his sentence8

 based

upon a claim that his attorney was ineffective in failing both to properly

inform him of the enhancement and to properly argue against such

enhancement. Williams, supra. Accordingly, this claim of ineffective

assistance of counsel is precluded by Thompson’s valid sentence-appeal

waiver.9

Case 1:08-cr-00069-WS-B Document 83 Filed 03/18/10 Page 44 of 50
enhancement paragraph of the Presentence Report prior to sentencing (Doc. 34) and vigorously

argued during sentencing that application of this enhancement was not appropriate in

Thompson’s case (Doc. 61, at 2-8). Thompson has not come forward with any credible evidence

that his attorney could have established through witnesses that application of the firearmenhancement was improper in his case; more specifically, he has not established that it was

clearly improbable that the firearm was not connected to his possession with intent to distribute

crack cocaine. Accordingly, the undersigned discerns a lack of cause and prejudice in this

regard. 

10 The plea agreement is written heavily in the government’s favor, providing not

only that a decision regarding whether Thompson had provided substantial assistance was

specifically reserved to the United States but as well that Thompson understood that “should he

provide untruthful information to the United States at any time, or should he fail to disclose

material facts to the United States at any time, the United States will not make a motion for

downward departure.” (Doc. 30, at ¶ 16.g.) Based upon Thompson’s statements during the

sentencing hearing it is clear that untruthful information had been provided to the government

and that the United States had no obligation to make a motion for downward departure in

petitioner’s case. Again, therefore, petitioner’s attorney was not deficient in failing to assert a

breach of the plea agreement on account of the government’s failure to make a motion for

downward departure. 

45

5. Petitioner’s sole claim of ineffective assistance of counsel that

need be addressed on its merits is his contention that trial counsel was

ineffective at sentencing for failing to assert a breach of the plea agreement

by the government due to its failure to make a motion for downward

departure. This claim is meritless in light of the Court’s specific findings

during the sentencing hearing that Thompson had not cooperated in the case

and because he had not cooperated the government had filed no motion for

downward departure. (Doc. 61, at 23; see also id. (“[A]nd they wouldn’t at

this point [file a motion for downward departure] based on what you’ve just

said in this courtroom.”))10 Consequently, counsel’s failure to assert a

breach of the plea agreement due to the government’s refusal to make a

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11 A district court must order an evidentiary hearing “[u]nless the motion and the

files and records of the case conclusively show that the prisoner is entitled to no relief[.]” 28

U.S.C. § 2255(b). In other words, Thompson “is entitled to an evidentiary hearing on [his]

ineffective assistance claim if []he alleges facts which, if proven, would entitle [him] to relief.” 

Ramirez v. United States, 260 Fed. Appx. 185, 187 (11th Cir. 2007) (citations omitted). “A

district court, however, need not conduct an evidentiary hearing if it can be conclusively

determined from the record that there was no denial of effective assistance of counsel.” Id.

Because there was no denial of effective assistance of counsel in this case, an evidentiary hearing

is not warranted.

46

motion for downward departure cannot be said to be constitutionally

deficient. “[I]t is axiomatic that the failure to raise nonmeritorious issues

does not constitute ineffective assistance [of counsel].” Bolender v.

Singletary, 16 F.3d 1547, 1573 (11th Cir.) (citation omitted), cert. denied,

513 U.S. 1022, 115 S.Ct. 589, 130 L.Ed.2d 502 (1994).11 

6. 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 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

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47

petition is being denied, in part, on procedural grounds without reaching the

merits of an underlying constitutional claim, “a COA should issue [only]

when the prisoner shows . . . that jurists of reason would find it debatable

whether the petition states a valid claim of the denial of a constitutional right

and that jurists of reason would find it debatable whether the district court

was correct in its procedural ruling[,]” Slack v. McDaniel, 529 U.S. 473,

484, 120 S.Ct. 1595, 1604, 146 L.Ed.2d 542 (2000), and, in part, on the

merits of an underlying constitutional claim, 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[,]” id.;

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

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

manner or that the issues presented were “adequate to deserve

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48

encouragement to proceed further.”’”). Because, as previously established,

the appeal waiver in this case was found to be valid (Doc. 71, at 3), a

reasonable jurist could not conclude either that this Court is in error in not

addressing the merits of petitioner’s ineffective-of-assistance-of-counsel

claim as it relates to the firearm-enhancement, see Williams, supra, or that

Thompson should be allowed to proceed further with respect to this claim.

Slack, supra, 529 U.S. at 484, 120 S.Ct. at 1604 (“Where a plain procedural

bar is present and the district court is correct to invoke it to dispose of the

case, a reasonable jurist could not conclude either that the district court erred

in dismissing the petition or that the petitioner should be allowed to proceed

further.”). In addition, as it relates to petitioner’s other assertion(s) of

ineffective assistance of counsel, reasonable jurists could not debate whether

Thompson’s § 2255 motion to vacate should be resolved in a different

manner or that the Sixth Amendment issue(s) presented are adequate to

deserve encouragement to proceed further.

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 that follow the undersigned’s signature contain

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49

important information regarding objections to the report and

recommendation of the Magistrate Judge.

DONE this the 18th day of March, 2010.

 s/WILLIAM E. CASSADY 

UNITED STATES MAGISTRATE JUDGE

Case 1:08-cr-00069-WS-B Document 83 Filed 03/18/10 Page 49 of 50
12 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).

50

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 days12 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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