1 At times in the record of this case, petitioner is referred to as “Kodell” Sharp

while at other times he is referred to as “Kordell” Sharp. (Compare Doc. 369 (plea agreement

and factual resume refer to petitioner as “Kodell” Sharp) with Docs. 561 & 562 (during guilty

plea and sentencing proceedings, petitioner is referred to as “Kordell” Sharp)) The undersigned

has referred to petitioner in the style of this case as “Kordell” Sharp inasmuch as that is the name

he has typed on the front page of his § 2255 petition. (See Doc. 672, at 1)

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

NORTHERN DIVISION

KORDELL T. SHARP,1 :

Petitioner, :

vs. : CIVIL ACTION NO. 09-0188-CG-C

UNITED STATES OF : CRIMINAL ACTION NO. 06-0176-CG

AMERICA, 

:

Respondent.

REPORT AND RECOMMENDATION

Petitioner, Kordell T. Sharp, 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. 672). 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).

It is recommended that Sharp’s § 2255 motion be denied.

Case 2:06-cr-00176-CG-N Document 701 Filed 08/07/09 Page 1 of 51
2 The superseding indictment added a forfeiture count with respect to all named

defendants. (See id., Count Thirty-Five)

2

FINDINGS OF FACT

1. On July 27, 2006, Sharp was charged by indictment with one

count of conspiracy to possess with intent to distribute marijuana, cocaine and

more than 50 grams of cocaine base, i.e., crack cocaine, in violation of 21

U.S.C. § 846, one count of possession with intent to distribute crack cocaine

and marijuana (on January 18, 2006) in violation of 21 U.S.C. § 841(a)(1), and

one count of possession with intent to distribute cocaine (on February 28,

2006) in violation of 21 U.S.C. § 841(a)(1). (Doc. 1) By superseding

indictment, filed in open court on August 31, 2006, Sharp was again charged

with one count of conspiracy to possess with intent to distribute marijuana,

cocaine and more than 50 grams of crack cocaine in violation of 21 U.S.C. §

846, one count of possession with intent to distribute crack cocaine and

marijuana (on January 18, 2006) in violation of 21 U.S.C. § 841(a)(1), and one

count of possession with intent to distribute cocaine (on February 28, 2006) in

violation of 21 U.S.C. § 841(a)(1). (Doc. 199)2

2. Sharp, through his attorney, notified the Court of his intent to

plead guilty during a pretrial conference conducted on December 12, 2006.

(Doc. 359)

Case 2:06-cr-00176-CG-N Document 701 Filed 08/07/09 Page 2 of 51
3

3. On December 21, 2006, the parties filed a plea agreement and

factual resume with the Court. (Doc. 369) The plea agreement, reads, in

relevant part, as follows:

PLEA AGREEMENT

The defendant, KODELL T. SHARP, 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;

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 1 of the Superseding

Indictment, charging a violation of Title 21 United States Code,

Section 846, conspiracy to possess with the intent to distribute

Case 2:06-cr-00176-CG-N Document 701 Filed 08/07/09 Page 3 of 51
4

controlled substances.

...

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

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

Case 2:06-cr-00176-CG-N Document 701 Filed 08/07/09 Page 4 of 51
5

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 Superseding 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/she could be

imprisoned for the entire term of supervised release; and

d. A mandatory special assessment of

$100.00.

SENTENCING

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

Case 2:06-cr-00176-CG-N Document 701 Filed 08/07/09 Page 5 of 51
6

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

charges against the defendant related to the facts underlying the

Superseding Indictment and will move to dismiss Counts

Thirteen and Fourteen 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

Case 2:06-cr-00176-CG-N Document 701 Filed 08/07/09 Page 6 of 51
7

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

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.

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8

. . . 

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.

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;

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 & 9-10 (emphasis in original)) Appearing before Sharp’s

signature line on page 11of the agreement is this paragraph: “I have consulted

Case 2:06-cr-00176-CG-N Document 701 Filed 08/07/09 Page 8 of 51
3 The Factual Resume, which Sharp also signed, reads as follows:

The defendant, KODELL T. SHARP, admits the allegations of Count 1

of the Superseding Indictment.

ELEMENTS OF THE OFFENSE

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

States Code, Section 846, as charged in Count 1 of the Superseding Indictment,

the United States must prove:

1. That two or more persons in some way or manner, came to a

mutual understanding to conspire to distribute controlled

substances.

2. That the defendant knowingly and willfully became a member of

such conspiracy.

OFFENSE CONDUCT

Defendant, KODELL T. SHARP, admits in open court and under oath

that the following statement is true and correct and constitutes evidence in this

case.

During the dates charged in the conspiracy count of the indictment, the

defendant KODELL T. SHARP did knowingly and willfully conspire and agree

with others named in the Superseding Indictment to distribute and possess with

intent to distribute crack cocaine on Saint Phillips Street, Selma, Alabama, and

elsewhere. Agents from Alcohol, Tobacco, Firearms and Explosives, in

conjunction with officers from [the] Selma, Alabama police department began

9

with my counsel and fully understand all my rights with respect to the

offenses(s) charged in the Superseding 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,3 incorporated herein, is true and

Case 2:06-cr-00176-CG-N Document 701 Filed 08/07/09 Page 9 of 51
looking into illegal sales of narcotics in the 1400 block of St. Phillips Street,

Selma, Alabama in the early Spring of 2005. By use of pole cameras located at

each end of the block, informants, undercover purchases, and “pick-offs” of drug

purchasers, agents determined that SHARP and the others named in the

indictment worked together to sell various amounts of crack cocaine, cocaine, and

marijuana to individuals who either drove by or walked up to meet with the

various drug dealers, including SHARP. The group purchased their drugs from

outside sources. This investigation lasted up through August 2, 2006. The

defendant agreed with Ford and others to distribute and possess with intent to

distribute in excess of 50 grams of cocaine base, also known as crack cocaine

within the Selma area; however, the United States and the defendant do not have

an agreement as to the exact amount of crack cocaine for which the defendant

shall be held accountable for purposes of relevant conduct, and both parties are

free to present their respective positions at sentencing for the Court’s

determination of this issue by the preponderance of evidence. 

(Doc. 369, FACTUAL RESUME, at 1-2)

10

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

United States could have proven the same beyond a reasonable doubt.”

(Id. (emphasis supplied))

4. That same date, Sharp entered a counseled guilty plea to Count

One of the Superseding Indictment. (Doc. 561, Guilty Plea Transcript; see also

Doc. 370)

THE COURT: All right. Would you place the

defendants under oath?

THE CLERK: Yes, ma’am. Mr. Sharp, raise your

Case 2:06-cr-00176-CG-N Document 701 Filed 08/07/09 Page 10 of 51
11

right hand. . . .

(The defendants were sworn.) 

...

DEFENDANT SHARP: Yes, ma’am.

THE COURT: All right. Now, I’m going to be

asking you a series of questions and sometimes it will seem like

you need to answer at the same time. But my court reporter

needs to take down your answers individually. And so when I

ask you that kind of question, Mr. Sharp, if you will answer first

and then you Mr. Jones. All right?

...

THE COURT: . . . Do each of you understand that

you are now under oath and if you answer any of my questions

falsely, your answers may later be used against you in a separate

prosecution for perjury or for making a false statement?

DEFENDANT SHARP: Yes, ma’am.

...

THE COURT: Mr. Sharp, what is your full name?

DEFENDANT SHARP: Kordell T. Sharp.

THE COURT: And how old are you?

THE DEFENDANT: 19 – I just turned 20. I’m

sorry.

THE COURT: Just turned 20?

DEFENDANT SHARP: Yes, December the 1st.

Case 2:06-cr-00176-CG-N Document 701 Filed 08/07/09 Page 11 of 51
12

THE COURT: How far did you go in school?

THE DEFENDANT: College.

THE COURT: You’re in college now?

DEFENDANT SHARP: Yes, ma’am.

...

THE COURT: All right. Have either of you been

treated recently for any mental illness or addiction to narcotic

drugs of any kind?

DEFENDANT SHARP: Yes, ma’am.

THE COURT: Tell me about that.

DEFENDANT SHARP: I went to Mission of Hope

drug/alcohol rehab.

THE COURT: All right. And what kind of drug did

you have a problem with?

DEFENDANT SHARP: Crack cocaine and cocaine,

marijuana.

...

THE COURT: Are either of you currently under the

influence of any drug, medication, or alcoholic beverage of any

kind?

DEFENDANT SHARP: No, ma’am.

...

THE COURT: Have each of you received a copy of

Case 2:06-cr-00176-CG-N Document 701 Filed 08/07/09 Page 12 of 51
13

the written charges; that is, the indictment in this case?

DEFENDANT SHARP: Yes, ma’am.

...

THE COURT: And have you gone over that

indictment and fully discussed the case in general with your

lawyer?

DEFENDANT SHARP: Yes, ma’am.

. . . 

THE COURT: Do you understand the charges that

are pending against you?

DEFENDANT SHARP: Yes, ma’am.

...

THE COURT: Are you fully satisfied with the

counsel, representation, and advice given to you in your case by

your lawyer?

DEFENDANT SHARP: Yes, ma’am.

...

THE COURT: Now, I’ve been provided with a

plea agreement and a factual resume for each of you. And I want

you to look at that document, or those documents, and tell me on

the record whether that is your plea agreement and factual

resume and whether you signed those documents.

MR. JORDAN: I’ll show it to you real quick.

...

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14

DEFENDANT SHARP: Yes, ma’am.

THE COURT: All right. Did each of you have the

opportunity to read and discuss the plea agreement with your

attorney before you signed it?

DEFENDANT SHARP: Yes, ma’am.

...

THE COURT: Are there any agreements that you

have with the United States Government on your case that are

not written down in the amended plea agreement?

DEFENDANT SHARP: Yes, ma’am – well no,

ma’am, really no. ma’am.

...

THE COURT: Do you understand the terms of your

plea agreement?

DEFENDANT SHARP: Yes, ma’am.

...

THE COURT: Has anyone made any other or

different promises or assurances to you of any kind in an effort

to induce you to plead guilty in your case?

DEFENDANT SHARP: No, ma’am.

...

THE COURT: Do you understand that the terms of

the plea agreement are merely recommendations to the Court

and that I can reject those recommendations without permitting

you to withdraw your plea of guilty and impose a sentence that

Case 2:06-cr-00176-CG-N Document 701 Filed 08/07/09 Page 14 of 51
15

is more severe than you might anticipate?

DEFENDANT SHARP: Yes, ma’am.

...

THE COURT: Has anyone attempted in any way to

force you to plead guilty in this case?

DEFENDANT SHARP: No, ma’am.

...

THE COURT: Are you pleading guilty of your own

free will because you are guilty?

DEFENDANT SHARP: Yes, ma’am.

...

THE COURT: Do you understand that . . . the

offense to which you’re pleading guilty is a felony offense and

that if your plea is accepted, you will be adjudged guilty of that

offense and that such adjudication may deprive you of valuable

civil rights such as the right to vote, the right to hold public

office, the right to serve on a jury, the right to possess any kind

of firearm, and also it could entail the loss of certain federal

benefits? Do you understand those possible consequences of

your guilty plea?

DEFENDANT SHARP: Yes, ma’am.

...

THE COURT: Now, in each of your cases the

maximum possible penalty the Court could impose is a

minimum 10 years to a maximum life imprisonment, a fine not

to exceed $4 million, a term of supervised release of five years

Case 2:06-cr-00176-CG-N Document 701 Filed 08/07/09 Page 15 of 51
16

which would follow any term of imprisonment, and if you

violated the conditions of supervised release you could be

imprisoned for that entire term as well, and a mandatory special

assessment of $100. Do you understand those possible

consequences of your guilty plea?

DEFENDANT SHARP: Yes, ma’am.

...

THE COURT: Under the Sentencing Reform Act

of 1984, 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

the sentencing guidelines might affect your sentence?

DEFENDANT SHARP: Yes, ma’am.

...

THE COURT: Do you understand that the Court

will not be able to determine the advisory guidelines sentencing

range for your case until after a presentence report has been

completed and you and the government have had the

opportunity to challenge the reported facts and the application

of the guidelines recommended by the probation office, and that

the sentencing guideline range determined by the Court may be

different from any estimate your attorney or anyone else might

have given you?

DEFENDANT SHARP: Yes, ma’am.

...

THE COURT: Do you also understand that after

your guideline range has been determined, the guidelines

themselves further provide for departures either upwards or

downwards from that range in certain circumstances?

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17

DEFENDANT SHARP: Yes, ma’am.

...

THE COURT: And do you understand that although

the Court is required to consider the guidelines, they are

advisory only and do not necessarily control the sentence

imposed?

DEFENDANT SHARP: Yes, ma’am.

...

THE COURT: Do you understand that in the

federal system parole has been abolished and if you are

sentenced to prison you will not be released on parole?

DEFENDANT SHARP: Yes, ma’am.

...

THE COURT: Do you also understand that under

some circumstances you or the government may have the right

to appeal any sentence that I impose; however, each of your plea

agreements contains a limited waiver of your right to appeal the

sentence itself and in each of your cases you have retained the

right to appeal the sentence only if punishment is imposed in

excess of the statutory maximum, if punishment is imposed that

constitutes an upward departure from the guideline range, or if

you have a claim of ineffective assistance of counsel. Do you

understand that you have waived your right to appeal in all but

those three circumstances?

DEFENDANT SHARP: Yes, ma’am.

...

THE COURT: Do you understand that you have a

Case 2:06-cr-00176-CG-N Document 701 Filed 08/07/09 Page 17 of 51
18

right to plead not guilty to any offense charged against you and

to persist in that plea and that you would then have the right to

a trial by jury, that at that trial you would be presumed to be

innocent and the government would have to prove your guilt

beyond a reasonable doubt, and that you would have the right to

the assistance of counsel for your defense, the right to see and

hear all of the witnesses and have them cross-examined in your

defense, the right on your own part to decline to testify unless

you voluntarily elected to do so in your own defense, and the

right to the issuance of subpoenas to compel the attendance of

witnesses to testify in your defense?

DEFENDANT SHARP: Yes, ma’am.

...

THE COURT: And do you understand that if you

went to trial and decided not to testify or to put on any evidence,

those facts could not be used against you?

DEFENDANT SHARP: Yes, ma’am.

...

THE COURT: Do you further understand that by

entering a plea of guilty, if that plea is accepted by the Court,

there will be no trial and you will have waived or given up your

right to a trial as well as those other rights associated with a trial

that I’ve just described?

DEFENDANT SHARP: Yes, ma’am.

...

THE COURT: All right. Now, each of you are

pleading guilty to a charge of violating Title 21, United States

Code, Section 846. And in order to convict you of that offense,

the United States would have to prove that two or more persons

Case 2:06-cr-00176-CG-N Document 701 Filed 08/07/09 Page 18 of 51
19

came to a mutual understanding to conspire to distribute

controlled substances and that you, knowing the purpose of that

conspiracy, knowingly and willfully joined in that agreement.

Do you understand what the government would have to prove in

order to convict you?

DEFENDANT SHARP: Yes, ma’am.

...

THE COURT: All right. Now, I asked each of you

earlier if you had signed the factual resume and the plea

agreement. You said you had, and I want to make sure that you

understand that by signing the factual resume you have agreed

that the government could prove the facts set forth in the offense

conduct section of that document in order to support your guilty

plea. Do you understand that and agree to that?

DEFENDANT SHARP: Yes, ma’am.

...

THE COURT: All right. I have read those and now

I will ask you how do you plead to the charge, guilty or not

guilty?

DEFENDANT SHARP: Guilty.

...

THE COURT: . . . It is the finding of the Court in

the case of United States versus Kordell T. Sharp . . . that [the]

defendant is fully competent and capable of entering an

informed plea, that the defendant is aware of the nature of the

charges and the consequences of the plea, and that the plea of

guilty is a knowing and voluntary plea supported by an

independent basis in fact containing each of the essential

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20

elements of the offense. The plea is therefore accepted and [the]

defendant is now adjudged guilty of that offense.

(Id. at 2, 2-3, 3, 4, 5, 6, 6-7, 7, 7-8, 8, 8-9, 9, 10, 10-11, 11 & 11-12)

5. The Presentence Investigation Report was prepared by the

Probation Office on February 15, 2007 and filed as a sealed document on

March 19, 2007. (See Doc. 460) The defendant interposed the following

objections to the Presentence Report:

1. Defendant objects to paragraph 68 holding

Defendant accountable for one hundred seventy

point one (170.1) grams of crack cocaine (cocaine

base). Defendant submits that his involvement

was limited and involved less than one hundred

seventy point one (170.1) grams of crack cocaine.

This would reduce his base offense level below

thirty four (34).

2. Defendant objects to the two (2) point

enhancement in paragraph 69 providing a two (2)

point enhancement for Defendant[’]s and/or any

conspirator[’]s possession of a weapon. By all

accounts, no witness attributed Kodell Sharp with

ever having possessed a weapon.

3. Defendant objects to paragraph 80 assessing two

(2) criminal history points in that these events

occurred at the age of sixteen, involved

delinquent adjudications, and submits that it is not

sufficient conduct to warrant criminal history

points. Defendant’s criminal history category

should be that of one (1) instead of a criminal

history category of two (2).

Case 2:06-cr-00176-CG-N Document 701 Filed 08/07/09 Page 20 of 51
4 On October 2, 2007, the government filed notice of intent to call two witnesses at

the sentencing hearing. (Doc. 544)

21

a. In addition, the use of Defendant’s

juvenile adjudication violates the Equal

Protection, Due Process, and Double

Jeopardy clauses of the U.S. Constitution.

 

(Doc. 521, at 1) The Court stuck the defendant’s objections due to the failure

of counsel to include the required certification. (See Doc. 522) 

6. During the sentencing hearing on October 11, 2007,4

 the

following occurred:

THE COURT: All right. Mr. Jordan, have you been

over the presentence investigation report? Mr. Sharp, why don’t

y’all step up to the desk?

MR. JORDAN: Yes, Your Honor, and I’ve discussed

it with Mr. Cherry and the probation officer and we’re going to

withdraw our objection to the amount of the drugs. We’ve

agreed that that’s basically what the evidence would show.

THE COURT: You realize that I struck your

objections shortly after they were filed.

MR. JORDAN: I am aware of that, Your Honor, and

I have communicated with the two parties Your Honor

instructed me to, but I didn’t conclude that until probably this

morning. But we’re withdrawing that, so we’re at the 34 level.

THE COURT: You never did refile it, is what I’m

saying.

MR. JORDAN: No. Because I didn’t – I didn’t really

get it resolved until this morning, so I haven’t refiled it . . . .

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22

THE COURT: Let me hear what the government’s

position is on this.

MR. CHERRY: Your Honor, if it please the Court,

to avoid possible appellate issues, we are not objecting to his

filing the objections today or arguing those objections. We have

discussed some of those anyway and Mr. Jordan, through the

negotiations, I think, will help us from having to put on a lot of

testimony on some of these issues.

THE COURT: And so what is the government’s

position as to the amount of drugs involved?

MR. CHERRY: Your Honor, if it please the Court,

what probation has in there is 170.1 grams, and I think both

parties agree that that is an accurate amount. Chris Ford, one of

the witnesses we would proffer to the Court today, I have met

with him and with the agent several times, and that is

approximately the same amount he would testify to before the

Court. It might be within 15 to 20 grams, but it doesn’t make

any difference in the levels.

MR. JORDAN: And we’re going to withdraw my

technical objection – or not object to that amount as of today,

after my discussions with Mr. Cherry. And I told him he did not

need to call any witnesses on that issue.

THE COURT: All right. So do you agree that the

base offense level is 34?

MR. JORDAN: Yes, ma’am.

THE COURT: All right. What other objections do

you have?

MR. JORDAN: Judge, we object to the gun. I’ve

talked to Mr. Cherry about that, and my understanding is that

there are no witnesses that ever put any guns in my client’s

Case 2:06-cr-00176-CG-N Document 701 Filed 08/07/09 Page 22 of 51
23

hand. It’s a big jump from being a crackhead and selling crack

to support your habit versus actually handling a gun for any

reason whatsoever. . . . I’ve never seen any testimony or

witnessed any discussion that my client ever handled a gun. That

was not within his character and that was outside the scope of

his involvement. I understand the rules are foreseeability. . . . I

just submit to Your Honor this young man has never handled a

gun or been involved with a gun and was not involved with a

gun. And the other people, admittedly, were involved with guns.

But he wasn’t . . . .

THE COURT: I didn’t understand it to be the

position that he personally had a gun. I understood the

enhancement to be based on the fact that he pled guilty to a

conspiracy in which other coconspirators had firearms and that

it was reasonably foreseeable. But what is your position on that,

Mr. Cherry?

MR. CHERRY: Your honor, I’d advised Mr. Jordan

that I would stand moot on that point. I think the probation

office has spoken to that as well as I could. About all I could tell

the Court is that Mr. Jordan is not objecting to the fact there

were guns found in the homes, back yards, that type of thing, of

some of the codefendants. The testimony we would have

proffered through Mr. Ford is that this defendant had been there

for about six months or so, that he did not take part in any of the

problems they had with rival drug dealers, or the gangs, and that

he would say also he never saw this man with a gun. But as far

as argument on what the probation officer has said, it states it as

well as could be stated.

THE COURT: Well, when you say you stand moot

on that point, if he is challenging the gun enhancement, it is

incumbent upon the government, if you don’t agree with the

challenge, to put forth some evidence as to why – and I’ve heard

the evidence in other codefendants in this case.

 MR. CHERRY: Yes, ma’am.

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24

THE COURT: But that doesn’t apply to Mr. Sharp,

as to why Mr. Sharp should have known that guns were likely

to be involved in the conspiracy.

MR. CHERRY: Yes, ma’am. And I’ll have to tell the

Court at this point I would not be able to put on testimony that

I’m aware of from Mr. Ford or any of the others that we’ve

interviewed that he had seen the guns, would have known the

guns were there.

THE COURT: All right. Well, in that case, I find

that the gun enhancement is not appropriate in this case, which

means the adjusted offense level is 34. Were there other

objections?

MR. JORDAN: Judge, I would ask if you would also

ask that the PSI could be deleted, if that could be deleted from

the PSI. Because my understanding is it goes to the department

of Bureau of Prisons, and that they will –

THE COURT: Yeah, but my findings go as well.

MR. JORDAN: All right.

THE COURT: So they don’t need to delete it from

the PSI.

MR. JORDAN: Okay. Judge, the next issue I’d

raised was the juvenile issue. But I’ve discussed that with Mr.

Cherry, I’ve discussed that with the probation officer, and even

though I don’t like it, I think I’m wrong in trying to get that

criminal history lowered.

THE COURT: Then it’s the finding of the Court the

total offense level in this case is 31 with a criminal history level

of II. Are there any further objections to those findings?

MR. JORDAN: No.

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25

MR. CHERRY: No, Your Honor.

THE COURT: All right. I will hear from you, Mr.

Jordan, as to what’s an appropriate sentence in this case.

MR. JORDAN: Judge, this is a classic case of where

I’ve got a client who is 20 today. He was abandoned by his

mother and father at a young age and he was raised by his

grandparents, who did an excellent job of raising him. They

raised him in the church. When we came for the detention

hearing, his pastor was here and I think that had a strong

influence on Judge Milling as to releasing him pretrial, because

of the pastor. The pastor submitted a letter to Your Honor.

THE COURT: I saw that.

MR. JORDAN: His employer submitted a letter to

Your Honor. He went to Florida to live with his mom when he

was about 15 or 16. His mom was involved in bad things, real

bad things, and he got involved in real bad things. She wasn’t

able to provide . . . . And so he’s got that juvenile history a lot

from that. He came back to town and . . . he went to this area

and he started using crack cocaine and he became a crack

junkie. And then he began to sell crack to buy crack. Thank

goodness it was only about six months that he was in this area

and he was involved in this conspiracy. Thank goodness it was

busted and he was caught in the dragnet. And they probably

saved his life in a number of areas. 

Since that time he has married his girlfriend and has two

step-children. That’s the letters you have, were from his stepchildren, who he’s taken over a fatherly relationship, providing

them the father that they don’t have. He’s got a really good job.

He’s got really great grandparents.

So we would ask for a sentence that would perhaps take

that into consideration . . . that he would be punished because he

did sell crack cocaine, which is a horrible thing, and it wasn’t

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26

just like he was hurting other people by selling crack cocaine.

He was trying to destroy himself by using the crack cocaine

himself. And he admitted to me early on, said: “Mr. Jordan, it

basically took me over and it took over my life and if I hadn’t

been caught when I was, I’d still be on crack cocaine, I’d still be

out there in the gutters and out on the streets and I’d still be a

junkie.”

And this brought it to his grandparents’ attention and . .

. he has a chance to be a good citizen, because he was raised by

good grandparents [who] taught him Christianity and raised him

in the church. He does have a supportive girlfriend now [who]

is helping him to do the right things by her and her children. He

does have a supportive employer . . . so that’s where we are.

I do have his grandfather here, Your Honor, [who] would

like to be heard briefly.

THE COURT: Well, let me ask you this, Mr.

Jordan: Given the amount of crack cocaine that was involved, is

not the 10-year minimum mandatory applicable in this case?

MR. JORDAN: I’m sure it is, Judge.

THE COURT: And the guideline range is one

month more than that, up to 151 months, is it not?

MR. JORDAN: Yes, Your Honor.

THE COURT: All right. So . . . given the minimum

mandatory and the closeness of the guideline range to the

minimum mandatory, I’m just saying that there’s no way the

Court can go much below the guideline range in this case. You

understand that?

MR. JORDAN: Judge, . . . I thought they determined

the guidelines to become more advisory, where Your Honor did

have some discretion.

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27

THE COURT: The guidelines are more advisory,

but the statute itself means a minimum 10-year sentence. And so

I understand your position that perhaps a lesser sentence is

required in this case, but I can’t go below the 10-year minimum

mandatory. Do you understand that?

MR. JORDAN: Yes, Your Honor.

THE COURT: Well, I’ll hear from whoever you

want to present to me.

MR. JORDAN: Well, if that’s the case, Your Honor,

it’s fairly irrelevant then.

THE COURT: Mr. Sharp, do you have anything

that you would like to say?

THE DEFENDANT: Yes, ma’am. . . . First of all

. . . I’d like to say I’m sorry for the things I was doing. I was

raised by good grandparents [who] taught me well. And I fell

into the wrong field and things was happening, and I was a

junkie. And I’m proud to say that I’m glad that the judge before

you let we went to a rehab program to rehabilitate myself. And

I have a good job right now. I appreciate the time I’ve been out

and [I’m] trying to step forward as a man and help my wife with

her children and everything.

THE COURT: All right. Does the government have

a position?

MR. CHERRY: Your Honor, we are recommending

to the Court the low end of the guidelines. But as you said, that’s

just a one-month difference.

THE COURT: All right. Anything else, Mr. Jordan?

MR. JORDAN: No, Judge. If you would order him

to be allowed to take a drug program in prison, if that would

Case 2:06-cr-00176-CG-N Document 701 Filed 08/07/09 Page 27 of 51
28

help reduce his time, that would be appreciated.

THE COURT: All right. I’m now going to state the

sentence I intend to impose and after I’ve stated it I will allow

counsel to make legal objections before actual imposition of the

sentence.

I have considered the sentencing guidelines, I’ve

considered the statutory purposes of sentencing, and I frankly

think the minimum mandatory sentence is what is an appropriate

sentence in this case. Basically whether you call it a departure

or a non[-]guidelines sentence –I suppose it’s a non[-]guidelines

sentence–but they are so close that it hardly makes any

difference. But I do find that your relative youth, the short

amount of time that you were in this conspiracy, and your

rehabilitation from using the drugs merits this minimum

mandatory sentence, and that’s what I intend to impose. 

Pursuant to the Sentencing Reform Act of 1984, it is the

judgment of the Court that the defendant Kordell T. Sharp is

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 the defendant be imprisoned at

an institution where a residential comprehensive substanceabuse treatment program is available.

Upon release from imprisonment the defendant shall be

placed on supervised release for a term of five years on count

one. 

Within 72 hours of release from custody of the Bureau of

Prisons, the defendant shall report in person to the probation

office in the district to which he is released. 

While on supervised release the defendant shall not

commit any federal, state, or local crimes, the defendant shall be

prohibited from possessing a firearm or other dangerous device,

and shall not possess a controlled substance. 

Case 2:06-cr-00176-CG-N Document 701 Filed 08/07/09 Page 28 of 51
29

In addition, the defendant shall comply with the standard

conditions of supervised release as recommended by the United

States Sentencing Commission and on record with this Court. 

The Court orders that the defendant also comply with the

following special conditions of supervised release: He 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 the defendant does not have the

ability to pay a fine and therefore a fine is not imposed.

As I indicated, I find the guideline range is not

appropriate to the facts and circumstances of this case and

sentence at the statutory minimum, which provides for a

reasonable sentence and note that it’s only a one-month

difference between the minimum guidelines and the statutory

minimum.

I sentence at this range based upon the defendant’s

cooperation, his rehabilitation from drug use, his youth, and the

position that he had in this conspiracy.

 In addition, the sentence imposed addresses the

seriousness of the offense and the sentencing objectives of

punishment, deterrence, and incapacitation. It is ordered that the

defendant pay a special assessment in the amount of $100 on

count one, which shall be due immediately.

Now, having stated the sentence I intend to impose, are

there any legal objections to it?

MR. JORDAN: No, Your Honor.

MR. CHERRY: No, ma’am.

THE COURT: . . . I hereby impose the sentence as

previously stated.

Case 2:06-cr-00176-CG-N Document 701 Filed 08/07/09 Page 29 of 51
30

Now, Mr. Sharp, 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

proceeding that was not waived by your guilty plea. You also

have a statutory right to appeal the sentence itself in certain

circumstances, although you entered into a plea agreement

which waives certain of your rights to appeal the sentence itself.

Such waivers are generally enforceable, but if you believe the

waiver to be unenforceable, you can test that theory in the

appellate Court. If you decide to appeal, you must do so within

10 days of entry of judgment in this case and Mr. Jordan can file

that notice for you.

(Doc. 562, at 2-13; see also Doc. 553 (judgment in a criminal case))

7. On October 26, 2007, Sharp filed written notice of appeal. (Doc.

548 (“I don’t feel I was represented properly towards my sentencing and that

I wasn’t in the right state of mind from just lo[]sing a baby. Another thing is

that in this conspiracy on my drug quantity was a lie from their witness but I

could do nothing about it!”)) The United States moved to dismiss Sharp’s

appeal “due to a valid appeal waiver” contained in the plea agreement. (Doc.

611) The government’s motion was granted on April 2, 2008. (Id.) 

8. Sharp filed a motion for reduction of sentence on March 17,

2008. (Doc. 604) The Court denied the motion for reduction on May 7, 2008.

(Doc. 628) “The defendant was sentenced to the statutory mandatory

minimum, and the court cannot reduce his sentence below the mandatory

minimum.” (Id.)

Case 2:06-cr-00176-CG-N Document 701 Filed 08/07/09 Page 30 of 51
5 In this regard, petitioner argues that his trial attorney completely failed to

“properly note, object, or appeal the vital issue of distinguishing the crack form of cocaine base

from the hydrochloride form of the same substance.” (Doc. 672, at 9) 

31

9. On August 22, 2008, Sharp filed a motion to reinstate his appeal.

(Doc. 651) That motion was denied by order dated August 27, 2008. (Doc. 652

(“This court has no authority to reinstate defendant’s direct appeal. Any such

relief must come from the Court of Appeals.”))

10. On March 31, 2009, Sharp filed the present collateral attack on

his conviction and sentence pursuant to 28 U.S.C. § 2255. (See Doc. 672, at 23

(date petitioner signed the petition)) Therein, petitioner contends that he was

denied the effective assistance of counsel. (See id.) According to what the

undersigned can discern from the petition, Sharp alleges the following

instances of ineffective assistance of trial counsel: (1) his plea of guilty was

not knowingly and voluntarily entered due to counsel’s failure to familiarize

himself with the facts and law of the case and realize that the government

would not be able to meet its burden of proving beyond a reasonable doubt that

he and his co-defendants conspired to possess with intent to distribute more

than 50 grams of the crack form of cocaine base5

; (2) his attorney failed to

investigate his case and discover the vital Fourth Amendment issue arising

from the fact that law enforcement officers did not have a confidential

Case 2:06-cr-00176-CG-N Document 701 Filed 08/07/09 Page 31 of 51
6 In this regard, Sharp contends that he was “unaware that he could have filed a

timely pre-trial motion to suppress, and thereby prove that he had standing to challenge the

validity of the search warrant and resulting seizure in the case at hand.” (Doc. 672, at 14)

32

informant supplying information about him and his co-defendants and,

therefore, the conduct of law enforcement in “stopping” individuals leaving the

home(s) of his co-defendants was illegal (Doc. 672, at 11) as was “the ensuing

application and affidavit for the search warrant, that enabled law enforcement

to discover and seize the firearms and drugs (as well as any other tangible and

testimonial evidence)” (id. at 12)6

; (3) his attorney did not inform him that he

could file a pre-trial motion to challenge the multiplicity of the superseding

indictment and seek dismissal of same (Doc. 672, at 14 & 16); (4) his attorney

did not inform him that the United States could not live up to its promise to file

a § 5K1.1motion for reduction of sentence on account of his vital cooperation

with law enforcement officials (Doc. 672, at 14); (5) his attorney “failed to

timely discover, note, object, and bring to the attention of the sentencing court,

that the Pre-Sentence Investigation Report [] had improperly and

unconstitutionally made reference to his prior juvenile convictions as being the

result of (I) his being formerly represented by counsel, and (ii) as being a

qualifying prior offense for the purposes of U.S.S.G. §§ 4A1.1(c) and

4A1.2([d])(1), in order that he may be attributed at least two (2) criminal

Case 2:06-cr-00176-CG-N Document 701 Filed 08/07/09 Page 32 of 51
7 In this regard, petitioner also contends that “counsel’s objections [did] not even

mention [his] entitlement to the application of the Safety Valve’s protections to his case in

accordance with § 5C1.2 and § 3553(f).” (Doc. 672, at 18)

8 Joe Carl Jordan, Esquire, represented Sharp both at trial and on appeal. (Doc. 672,

at 22-23) 

33

history points;” (Doc. 672, at 17)7 and (6) his first appeal was reduced to a

“mere sham and empty promise” due to his attorney’s failure to preserve the

foregoing issues for appellate review (Doc. 672, at 20).8

11. The United States filed its response and motion to dismiss on

June 8, 2009. (Doc. 695) Sharp did not file a reply to the government’s

response, though his time for doing so was extended to July 13, 2009 (Doc.

697; compare id. with Doc. 673 (initially ordering petitioner to file his reply

by June 22, 2009)). 

Case 2:06-cr-00176-CG-N Document 701 Filed 08/07/09 Page 33 of 51
9 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).

34

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, Sharp contends that constitutionally ineffective

assistance of counsel entitles him to the relief afforded by 28 U.S.C. § 2255.9

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

Case 2:06-cr-00176-CG-N Document 701 Filed 08/07/09 Page 34 of 51
10 “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).

11 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

35

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 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).10 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).11

Case 2:06-cr-00176-CG-N Document 701 Filed 08/07/09 Page 35 of 51
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).

36

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. Oates 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 first claim of ineffective assistance of counsel is that

his plea of guilty was not knowingly and voluntarily entered due to counsel’s

failure to familiarize himself with the facts and law of the case and realize that

the government would not be able to sustain its burden of proving beyond a

reasonable doubt that he and his co-defendants conspired to possess with intent

to distribute more than 50 grams of the crack form of cocaine base. In other

words, it appears to be Sharp’s position that his trial attorney provided

ineffective assistance because he failed to appreciate that the government

could not prove beyond a reasonable doubt that the substance he and his codefendants possessed with intent to distribute was crack cocaine, as opposed

Case 2:06-cr-00176-CG-N Document 701 Filed 08/07/09 Page 36 of 51
12 “Unpublished opinions are not considered binding precedent, but they may be

cited as persuasive authority.” 11th Cir. R. 36-2.

13 “This [] definition of ‘cocaine base’ also applies to the mandatory minimum, drug

penalty statutes.” United States v. Sloan, 97 F.3d 1378, 1381 n.4 (11th Cir. 1996) (citation

omitted), cert. denied, 520 U.S. 1277, 117 S.Ct. 2459, 138 L.Ed.2d 216 (1997).

37

to powder cocaine or some other form of cocaine. 

5. It is clear that under 21 U.S.C. § 841(b)(1)(A)(iii), an individual

who distributes 50 grams or more of a substance containing “cocaine base”

shall be sentenced to a mandatory minimum 10-year term of imprisonment.

“The Sentencing Guidelines state ‘”[c]ocaine base,” for the purposes of this

guideline, means “crack.” “Crack” is the street name for a form of cocaine

base, usually prepared by processing cocaine hydrochloride and sodium

bicarbonate, and usually appearing in a lumpy, rocklike form.’” Berry v.

United States, 281 Fed.Appx. 967, 968 (11th Cir.) (unpublished decision),12

quoting U.S.S.G. § 2D1.1(c) note D, cert. denied, U.S. , 129 S.Ct. 476,

172 L.Ed.2d 341 (2008); see also id. (“We have held the term ‘cocaine base’

in 21 U.S.C. § 960(b) should only include crack cocaine because Congress did

not explicitly define the term in the statute and allowed that definition of

‘cocaine base’ to be promulgated in the Guidelines.”).13 Defining cocaine base

as crack is important because after the guidelines were amended in 1993 the

Eleventh Circuit “held that for sentences imposed on and after November 1,

Case 2:06-cr-00176-CG-N Document 701 Filed 08/07/09 Page 37 of 51
14 Sharp has failed to direct this Court to any credible laboratory or other evidence

which establishes that one of the controlled substances he and his co-defendants were selling and

conspired to distribute was not cocaine base, that is, crack cocaine, and that the government

could not prove that 50 or more grams of crack cocaine was distributed by petitioner and his codefendants during the time he participated in the conspiracy.

38

1993, ‘cocaine base’ included only crack cocaine, and any other form of

cocaine base must be treated as cocaine hydrochloride for sentencing

purposes.” Reed v. United States, 2008 WL 2385249, *6 (M.D. Fla. 2008)

(citations omitted); see also id. (“There is a legal distinction between crack

cocaine and the other forms of cocaine base.”). 

6. Petitioner’s wholly conclusory argument in this regard14 is

undermined by the following: (1) the superseding indictment charged him with

conspiracy to possess with intent to distribute more than 50 grams of a mixture

and substance containing a detectable amount of cocaine base, commonly

known as crack cocaine (Doc. 199); (2) his understanding that crack cocaine

is a different drug than cocaine (see Doc. 561, at 4 (“And what kind of drug

did you have a problem with? DEFENDANT SHARP: Crack cocaine and

cocaine, marijuana.”)); (3) his acknowledgment during his guilty plea

proceeding that he understood the charges against him and also understood that

the United States would have the burden of proving at trial the legal elements

of the criminal charges beyond a reasonable doubt (id. at 7 & 11); (4) his

Case 2:06-cr-00176-CG-N Document 701 Filed 08/07/09 Page 38 of 51
15 This section of the factual resume to which petitioner agreed specifically states

that during the dates charged in the superseding indictment Sharp conspired with others named

therein to distribute and possess with intent to distribute crack cocaine on Saint Phillips Street in

Selma, Alabama; that by use of pole cameras located at the end of each block, informants,

undercover purchases, and “pick-offs” of drug purchasers, agents with the Bureau of Alcohol,

Tobacco, Firearms and Explosives, determined that Sharp and others named in the indictment

worked together to sell various amounts of crack cocaine, cocaine and marijuana to individuals

who drove or walked by; the group purchased their drugs from outside sources; and Sharp

agreed with co-defendant Ford and others named in the indictment to distribute and possess with

intent to distribute in excess of 50 grams of cocaine base, that is crack cocaine, in the Selma

area. (Doc. 369, FACTUAL RESUME, at 1-2) The only matter the defendant and government

did not agree upon was the exact amount of crack cocaine for which the defendant should be

held accountable. (See id. at 2) 

39

specific acknowledgment during his guilty plea that by signing the factual

resume he was agreeing that the government could prove the facts set forth in

the offense conduct section (id. at 11);15 (5) his failure to object to the

Presentence Investigation Report’s factual statement that he sold crack during

the period of January, 2006 until his arrest on August 2, 2006; and (6) his

withdrawal, during sentencing, of any objection to the PSI’s finding that he

was accountable for 170.1 grams of cocaine base when faced with the

government’s proffer that it was prepared to produce Chris Ford, one of

Sharp’s co-defendants, to testify regarding the amount of cocaine base

attributable to Sharp and that his testimony would place the amount within 15

to 20 grams of the 170.1 estimated in the PSI (see Doc. 562, at 2-3). In light

of the foregoing, the undersigned cannot find Sharp’s trial attorney deficient

in failing to recommend that petitioner proceed to trial in order to contest the

Case 2:06-cr-00176-CG-N Document 701 Filed 08/07/09 Page 39 of 51
16 In fact, by pleading guilty to the conspiracy charge, petitioner saved himself from

the possibility of two additional convictions (and sentences), one for possession with intent to

distribute crack cocaine and marijuana and a second for possession with intent to distribute

cocaine. 

40

type of drug involved in this case. In other words, the evidence before this

Court establishes that the United States could prove that Sharp and his codefendants conspired to possess with intent to distribute more than 50 grams

of crack cocaine, thereby bringing into play the statutory minimum mandatory

10-year sentence petitioner received. Counsel did not provide ineffective

assistance in this regard.16 Mack v. United States, 2008 WL 5427804, *6 (M.D.

Fla. 2008) (“[T]here was ample evidence that the substance involved in this

case was crack cocaine, and an attorney is not ineffective in failing to make a

meritless objection.”); see Berry, supra, at *2 (“Berry cannot show he was

prejudiced by his trial counsel’s failure to challenge whether the substance he

distributed was crack cocaine, because the evidence demonstrated the

substance was crack cocaine.”); cf. United States v. Johnson, 201 Fed.Appx.

734, 736 (11th Cir. 2006) (unpublished decision) (“The district court correctly

calculated Johnson’s offense level based on his possession and distribution of

cocaine base, which is defined as crack, because (1) Johnson admitted at his

plea hearing that he sold crack; (2) he failed to object to the PSI’s factual

statement that he distributed cocaine base; (3) he indicated that he agreed with

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41

the factual basis for the plea, which stated that he sold crack cocaine to a

confidential source; and (4) the indictment charged him with distributing

‘cocaine base, crack cocaine,’ as opposed to some other form of cocaine.”),

cert. denied, 549 U.S. 1297, 127 S.Ct. 1857, 167 L.Ed.2d 349 (2007).

7. Sharp next contends that his attorney failed to investigate his

case and discover the vital Fourth Amendment issue arising from the fact that

law enforcement officers did not have a confidential informant supplying

information about him and his co-defendants and, therefore, the conduct of law

enforcement in “stopping” individuals leaving the homes of his co-defendants

was illegal (Doc. 672, at 11) as was “the ensuing application and affidavit for

the search warrant, that enabled law enforcement to discover and seize the

firearms and drugs (as well as any other tangible and testimonial evidence)”

(id. at 12). Again, Sharp’s allegations are wholly conclusory and devoid of any

reliable evidence that he possessed a viable Fourth Amendment claim which

he had standing to raise. See United States v. Padilla, 508 U.S. 77, 81 & 81-82,

113 S.Ct. 1936, 1939, 123 L.Ed.2d 635 (1993) (“It has long been the rule that

a defendant can urge the suppression of evidence obtained in violation of the

Fourth Amendment only if that defendant demonstrates that his Fourth

Amendment rights were violated by the challenged search or seizure. . . . We

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42

applied this principle to the case of coconspirators in Alderman, in which we

said: ‘The established principle is that suppression of the product of a Fourth

Amendment violation can be successfully urged only by those whose rights

were violated by the search itself, not by those who are aggrieved solely by the

introduction of damaging evidence. Co-conspirators and codefendants have

been accorded no special standing.’”); United States v. Griffin, 287 Fed.Appx.

845, 848 (11th Cir. 2008) (unpublished opinion) (“Griffin fails completely to

address the district court’s conclusion that he lacked standing to complain of

Harrison’s search, but, as the district court correctly recognized, he lacks

standing to challenge the seizure of the gun from her pants because the search

did not implicate Griffin’s Fourth Amendment rights.”), cert. granted and

judgment vacated on other grounds, U.S. , 129 S.Ct. 2432, L.Ed.2d

 (2009). Because there is no information contained within this claim of

ineffective assistance of counsel which implicates Sharp’s Fourth Amendment

rights, petitioner has established neither the cause or prejudice prong of the

Strickland standard. See United States v. Scott, 2009 WL 1405855, *6 (N.D.

Fla. 2009) (“Defendant’s vague claim of unreliable informants and false

information is insufficient to establish any basis for a motion to suppress, and

certainly does not establish ineffective assistance of counsel.”).

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43

8. Sharp contends that his attorney was deficient for failing to

inform him that he could file a pre-trial motion challenging the superceding

indictment as multiplicitous and thereby seek dismissal of same. Sharp was

charged by superseding indictment, as aforesaid, with three separate offenses;

he was charged in Count One with conspiracy to possess with intent to

distribute marijuana, cocaine and more than 50 grams of cocaine base, i.e.,

crack cocaine, in Count Thirteen he was charged with possession with intent

to distribute crack cocaine and marijuana, and in Count Fourteen he was

charged with possession with intent to distribute cocaine. “An indictment is

multiplicitous if it charges a single offense in more than one count.” United

States v. Williams, 527 F.3d 1235, 1241 (11th Cir. 2008) (citations omitted);

see also Black’s Law Dictionary, at 1112 (9th ed. 2009) (noting that an

indictment is multiplicitous if it charges “the same offense in more than on

count of a single indictment[.]”). While each count of the indictment charging

Sharp involved controlled substances, each count required different evidence

to prove petitioner’s guilt. Count one charged conspiracy to distribute crack

cocaine while Counts Thirteen and Fourteen charged distribution of crack

cocaine and marijuana (thirteen) and cocaine (fourteen). Accordingly, Sharp’s

trial attorney did not err in failing to inform petitioner that he could file a preCase 2:06-cr-00176-CG-N Document 701 Filed 08/07/09 Page 43 of 51
17 The range of punishment under the guidelines was 121 months to 151 months.

(Doc. 562, Sentencing Transcript, at 9) 

44

trial motion challenging the superceding indictment as multiplicitous since the

charges were not multiplicitous. United States v. Bastidas, 28 F.Supp.2d 1346,

1350 (M.D.Fla. 1998) (“Defendant’s trial counsel did not err in not objecting

to the multiplicity of the Indictment because the charges were not

multiplicitous.”) . 

9. Sharp also contends that his attorney failed to inform him that

the United States could not live up to its promise to file a § 5K1.1 motion for

reduction of sentence based upon his vital cooperation with law enforcement

officials. There can be no doubt that the posture of this case was such that

application of U.S.S.G. § 5K1.1 was rendered moot inasmuch as the

mandatory minimum was ten (10) years17 and the Court was required to

sentence petitioner to the mandatory minimum. Nonetheless, the undersigned

cannot find counsel deficient for not informing Sharp that the government

could not file a § 5K1.1 motion for reduction of sentence particularly since the

government certainly could have filed (and perhaps can still file) a Rule 35(b)

motion for reduction of sentence, Fed.R.Crim.P. 35(b)(1)-(2); see

Fed.R.Crim.P. 35(b)(4) (“When acting under Rule 35(b), the court may reduce

the sentence to a level below the minimum sentence established by statute.”),

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18 Petitioner alleges in a conclusory manner that his cooperation with law

enforcement officials was “vital;” however, nothing contained within Sharp’s allegations gives

rise to any suggestion that he has provided substantial assistance with respect to the investigation

or prosecution of another person.

45

provided it was determined by the government that petitioner had supplied

substantial assistance in investigating or prosecuting another person, compare

Fed.R.Crim.P. 35(b)(1) (“Upon the government’s motion made within one

year of sentencing, the court may reduce a sentence if the defendant, after

sentencing, provided substantial assistance in investigating or prosecuting

another person.”) with Doc. 369, Plea Agreement, at 7 (“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.”).18

10. Petitioner’s next claims that his trial attorney “failed to timely

discover, note, object, and bring to the attention of the sentencing court, that

the Pre-Sentence Investigation Report [] had improperly and unconstitutionally

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19 Petitioner argues parenthetically that counsel was ineffective for not mentioning

his entitlement to application of the safety valve provision in accordance with U.S.S.G. § 5C1.2

and 18 U.S.C. § 3553(f). Sharp’s trial attorney was not deficient in failing to mention the safety

valve issue both because it is not at all clear that this provision would have been applicable to

Sharp since he received the statutory mandatory minimum sentence of 10 years, see Untied

States v. Lett, 483 F.3d 782, 788-789 (11th Cir. 2007) (“It is not obvious that the Booker decision

eviscerated mandatory minimum sentences in every case where the defendant meets the five

criteria for safety valve treatment, including those in which the advisory guideline range is above

the mandatory minimum.”), cert. denied, U.S. , 129 S.Ct. 31, 172 L.Ed.2d 18 (2008), but,

as well, because this safety valve would decidedly not be applicable to his case since his criminal

history was properly calculated as rendering two points, see 18 U.S.C. § 3553(f)(1)

(“Notwithstanding any other provision of law, in the case of an offense under section 401, 404,

or 406 of the Controlled Substances Act (21 U.S.C. 841, 844, 846) . . . the court shall impose a

sentence pursuant to guidelines promulgated by the United States Sentencing Commission under

section 994 of title 28 without regard to any statutory minimum sentence, if the court finds at

sentencing, after the Government has been afforded the opportunity to make a recommendation,

that– (1) the defendant does not have more than 1 criminal history point, as determined under the

sentencing guidelines[.]”).

46

made reference to his prior juvenile convictions as being the result of (I) his

being formerly represented by counsel, and (ii) as being a qualifying prior

offense for the purposes of U.S.S.G. §§ 4A1.1(c) and 4A1.2([d])(1), in order

that he may be attributed at least two (2) criminal history points.” (Doc. 672,

at 17)19 A review of the sentencing hearing transcript reveals that Sharp’s trial

attorney had every intention of objecting to the use of two prior juvenile

convictions for the purpose of calculating his criminal history score but

withdrew that objection after speaking with the probation officer and assistant

United States attorney and learning that such objection would be futile. (See

Doc. 562, at 6) 

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47

11. Section 4A1.2(d) of the United States Sentencing Guidelines

provides:

Offenses Committed Prior to Age Eighteen

(1) If the defendant was convicted as an adult and

received a sentence of imprisonment exceeding

one year and one month, add 3 points under

§4A1.1(a) for each such sentence.

(2) In any other case,

(A) add 2 points under §4A1.1(b) for

each adult or juvenile sentence to

confinement of at least sixty days if

the defendant was released from

such confinement within five years

of his commencement of the instant

offense;

(B) add 1 point under §4A1.1(c) for

each adult or juvenile sentence

imposed within five years of the

defendant’s commencement of the

instant offense not covered in (A).

Id. (emphasis in original). “Every other court to consider the applicability of

§ 4A1.2(d) has indicated that it should not be read to exclude juvenile

adjudications of guilt.” United States v. Chanel, 3 F.3d 372, 373 (11th Cir.

1993) (citations omitted), cert. denied, 510 U.S. 1133, 114 S.Ct. 1107, 127

L.Ed.2d 418 (1994). In this case, Sharp was 19 years of age when he was

arrested and 20 years of age when he entered his guilty plea and was

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48

sentenced. (See Doc. 561, at 3) As reflected in the PSI, Sharp was born on

December 1, 1986, and, therefore, was 19 years of age at the time of the

commencement of the offense for which he pled guilty. That report also

reflects that on two occasions within five years of the defendant’s

commencement of the instant offense, he received two juvenile sentences,

while counseled, see United States v. Kennedy, 557 F.Supp.2d 1311, 1320

(N.D. Fla. 2008) (“Defendant has supplied no evidence that the convictions

were uncounselled, a burden which he, not the Government, bears.”), for

offenses committed at the age of 16. Therefore, Sharp was properly attributed

2 criminal history points and counsel was not deficient for failing to make a

frivolous argument contending that no criminal history points should be

attributed to his client.

12. Sharp’s final contention is that his first appeal was reduced to a

“mere sham and empty promise” due to his attorney’s failure to preserve the

aforementioned claims of ineffective assistance of counsel for appellate

review. While it would not be unusual for an attorney who has represented a

defendant both at “trial” and on appeal to not raise claims of his own

ineffectiveness before the trial court, the failure to preserve such claims in the

instant case was not deficient given that they are all meritless. Thus, there was

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49

no ineffective assistance of counsel in this regard.

13. In consideration of the foregoing, the Magistrate Judge

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

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

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.

The instructions which follow the undersigned’s signature contain

important information regarding objections to the report and recommendation

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50

of the Magistrate Judge.

DONE this the 7th day of August, 2009.

 s/WILLIAM E. CASSADY 

UNITED STATES MAGISTRATE JUDGE

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51

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 ten 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 days 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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