United States District Court, W.D. Texas, Austin Division
SPARKS UNITED STATES DISTRICT JUDGE.
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.
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.
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.
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.
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
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 §
Section 2255-Legal Standard
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.
§ 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
Reconsideration of Hill's ...