(D.C. Nos. 1:12-CV-00028-NDF and 2:10-CR-00118-NDF-2)
Before TYMKOVICH, ANDERSON, and BACHARACH, Circuit Judges.
ORDER DENYING CERTIFICATE OF APPEALABILITY [*]
Stephen H. Anderson Circuit Judge.
After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this matter. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.
Petitioner and appellant Ronald Ennis seeks a certificate of appealability ("COA") to enable him to appeal the denial of his 28 U.S.C. § 2255 motion to vacate, set aside or correct his sentence. Having concluded that he fails to meet the standard for the issuance of a COA, we deny him a COA and dismiss this matter.
The following are the relevant facts, as stated in the various orders of the district court. On May 10, 2010, a grand jury returned two drug trafficking indictments against Mr. Ennis and others. The indictment in Case No. 10-CR-118-D ("Indictment 118") alleged that Mr. Ennis was involved in a drug trafficking enterprise with thirteen other individuals from January 2009 through May 10, 2010. Specifically, this indictment charged Mr. Ennis with conspiracy to traffic in methamphetamine, in violation of 21 U.S.C. §§ 846, 841(a)(1) and (b)(1)(A); distribution or possession of methamphetamine with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A) and (b)(1)(B); and use of a telephone to facilitate a drug felony, in violation of 21 U.S.C. § 843(b). The other indictment, involving Case No. 10-CR-134-D ("Indictment 134"), charged Mr. Ennis with conspiracy to traffic methamphetamine between October 1, 2009, and November 19, 2009, in violation of 21 U.S.C. §§ 846, 841(a)(1) and (b)(1)(A) and with unlawful distribution of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A) and (b)(1)(B).
The indictments alleged that the two primary other individuals involved with Mr. Ennis were Steve Bernal and William Breeden. Mr. Ennis assisted Mr. Bernal and Mr. Breeden by traveling to Utah on multiple occasions to pick up methamphetamine from their sources. Mr. Ennis, in turn, had other individuals selling methamphetamine on his behalf. Apparently, the total amount of methamphetamine attributed to Mr. Ennis was more than 900 grams.
On September 16, 2012, Mr. Ennis signed a plea agreement in both cases. Mr. Ennis agreed to plead guilty to count one of Indictment 118 (conspiracy to possess with intent to distribute and distribution of methamphetamine), and to count three of Indictment 134 (distribution of methamphetamine and aiding and abetting). Mr. Ennis also agreed to forfeit $15, 000. In return, the government agreed to dismiss all remaining counts and to recommend a sentence at the low end of the advisory United States Sentencing Commission, Guidelines Manual ("USSG").
At his change of plea hearing, the district court placed Mr. Ennis under oath and engaged in the colloquy required by Fed. R. Crim. P. 11. Mr. Ennis stated that he had an adequate opportunity to discuss the charges with his attorney and that his attorney had answered all of his questions regarding those charges and had discussed possible defenses with him. Mr. Ennis also stated that he was satisfied with the representation he had received from his counsel.
The court then explained the penalties which could result from a guilty plea, and Mr. Ennis indicated his understanding, including his awareness of the mandatory minimum penalty of ten years for one of the counts. The court explained the Guidelines and the United States Probation Office's assigned officer indicated her belief that Mr. Ennis's total adjusted offense level would be 37 with a criminal history category of III. This would result in an advisory sentencing range of 262 to 327 months. Mr. Ennis indicated his awareness of all of this information before he pled guilty.
The court next explained the elements of the crimes; Mr. Ennis indicated his understanding of those. He then described what he actually did with respect to each count. Mr. Ennis subsequently pled guilty to each count. The plea agreement did not contain any provision waiving Mr. Ennis's right to appeal his sentence.
In preparation for sentencing under the Guidelines, the probation office prepared a presentence report ("PSR"), which used relevant conduct to establish a base offense level of 34. After reducing the offense level for acceptance of responsibility, the PSR calculated Mr. Ennis's total offense level as 31, which, with a criminal history of V, yielded an advisory Guidelines sentencing range of 168 to 210 months.
At his sentencing hearing, Mr. Ennis argued that the court should consider a sentence below the minimum of 168 months. As grounds for this downward variance, Mr. Ennis argued his age (66 at the time) and his severe addiction to methamphetamine. After listening to Mr. Ennis, the court varied downward three levels to an offense level of 28 with an advisory ...