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Hill v. United States

United States District Court, W.D. Texas, Austin Division

April 11, 2017




         BE IT REMEMBERED on this day the Court reviewed the file in the above-styled cause, and specifically Movant Larry Dwayne Hill's Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 [#83], Hill's Memorandum in Support [#84], the Government's Response [#87], and Hill's Motion to Alter or Amend Judgment [#93]. Having considered the documents, the governing law, and the file as a whole, the Court now enters the following opinion and orders.


         On October 17, 2006, Movant Larry Dwayne Hill (Hill) was charged in a four-count indictment with Conspiracy to Distribute and to Possess with the Intent to Distribute more than 500 Grams of Methamphetamine (Count One), Possession with Intent to Distribute 50 Grams or more of Methamphetamine (Count Two), and Felon in Possession of a Firearm (Counts Three and Four). On December 1, 2006, Hill pleaded guilty to all four counts.

         Hill was at least 18 years old at the time he committed the offenses charged in the indictment, and Counts One and Two constitute "controlled substance offense [s]" within the meaning of § 4Bl.l(a) of the federal sentencing guidelines. Hill was therefore subject to career offender enhancement if he had "at least two prior felony convictions of either a crime of violence or a controlled substance offense." See U.S.S.G. § 4Bl.l(a). Hill had three prior felony convictions for delivery of a controlled substance under §§ 481.002(8) and 481.112(a) of the Texas Penal Code. The presentence report (PSR) construed "controlled substance offense" listed in § 4B1.2 as including Hill's prior convictions for delivery of a controlled substance.

         According to the PSR, 595.35 grams of methamphetamine were involved in Hill's distribution efforts in 2006. This quantity of methamphetamine resulted in a base offense level of 32. Because dangerous weapons were found in Hill's possession, Hill's offense level was increased to 34. See U.S.S.G. § 2D1.1(b)(1). The PSR recommended an enhancement was warranted under § 4B 1.1(b). Because Hill was exposed to the statutory maximum of life under Count One, the resulting adjusted offense level was 37. The PSR then applied a three-level reduction under § 3B1.1 for acceptance of responsibility, which resulted in an offense level of 34. See U.S.S.G. § 3E1.1. The PSR calculated a sentencing range of 262 to 327 months as to Counts One and Two, and a sentence of 120 months as to Counts Three and Four.

         The Court ultimately sentenced Hill to 262 months of imprisonment for Counts One and Two, with a 120-month term of imprisonment for Counts Three and Four to run concurrently, followed by a three-year term of supervised release. Hill did not file a direct appeal.

         On September 9, 2016, Hill filed the instant § 2255 motion. The Government responded on October 30, 2016, recommending the Court resentence Hill, because Hill's three prior offenses for Texas Delivery of a Controlled Substance can no longer be used to calculate Hill's career-offender sentence. On December 12, 2016, the Court granted in part and denied in part Hill's § 2255 motion and reset this case for a new sentencing hearing due to the Government's recommendation that Hill be resentenced. On December 19, 2016, Hill received an Executive Grant of Clemency, reducing his sentence to a term of imprisonment that will expire on December 19, 2018. After Hill received his Executive Grant of Clemency, the Court cancelled the previously scheduled sentencing hearing. As Hill is not eligible for relief, the Court vacates its previous order and denies Hill's § 2255 motion.


         I. Section 2255-Legal Standard

         Generally, there are four grounds upon which a defendant may move to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255: (1) the imposition of a sentence in violation of the Constitution or the laws of the United States; (2) a lack of jurisdiction of the district court that imposed the sentence; (3) the imposition of a sentence in excess of the maximum authorized by law; and (4) the sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255; United States v. Placente, 81 F.3d 555, 558 (5th Cir. 1996). Section 2255 is an extraordinary measure; it cannot be used for errors that are not constitutional or jurisdictional if those errors could have been raised on direct appeal. United States v. Stumpf, 900 F.2d 842, 845 (5th Cir. 1990). If the error is not of constitutional or jurisdictional magnitude, the movant must show the error could not have been raised on direct appeal and would, if condoned, "result in a complete miscarriage of justice." United States v. Smith, 32 F.3d 194, 196 (5th Cir. 1994). In addition, a defendant who raises a constitutional or jurisdictional issue for the first time on collateral review must show both "cause" for his procedural default, and "actual prejudice" resulting from the error. Placente, Sl F.3d at 558.

         II. Application

         In his § 2255 motion, Hill asks this Court to vacate his sentence. He argues his career-offender sentence is unconstitutional based on recent Supreme Court and Fifth Circuit cases.

         A. Reconsideration of Hill's ...

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