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Ivory v. United States

United States District Court, N.D. Texas

June 27, 2017

KYSTON IVORY, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION AND ORDER

          John McBryde united States District Judge.

         Came on for consideration the motion of Kyston Ivory ("movant") under 28 U.S.C. § 2255 to vacate, set aside, or correct sentence. After having considered such motion, the government's response, movant's reply, and pertinent parts of the record in Case No. 4:15-CR-174-A, styled "United States of America v. Kyston Ivory, " the court has concluded that the motion should be denied.

         I. Background

         Information contained in the record of the underlying criminal case discloses the following:

         On July 15, 2015, movant was named in a one-count indictment charging him with bank robbery in violation of 18 U.S.C. § 2113(a). CR Doc.[1] 10. Attorney Catherine R. Dunnavant was appointed to represent him. CR Doc. 3. On August 28, 2015, movant appeared before the court with the intent to enter a plea of guilty to the offense charged without benefit of a plea agreement. CR Doc. 17. Under oath, movant stated that no one had made any promise or assurance of any kind to induce him to plead guilty. Further, movant stated his understanding that the guideline range was advisory and was one of many sentencing factors the court could consider; that the guideline range could not be calculated until the PSR was prepared; the court could impose a sentence more severe that the sentence recommended by the advisory guidelines and movant would be bound by his guilty plea; movant was satisfied with his counsel and had no complaints regarding his representation; and, movant and counsel had reviewed the factual resume and movant understood the meaning of everything in it and the stipulated facts were true and accurate. CR Doc. 3 8.

         The probation officer prepared a presentence report that indicated that movant's base offense level was 20 with a two-level enhancement for property taken from a financial institution, a two-level enhancement for threatening to use a gun, and a three-level reduction for acceptance of responsibility, for a total offense level of 21. CR Doc. 22, PSR at 7. Based on his total offense level and criminal history-category of II, the guideline imprisonment range was 41 to 51 months. Id. at 15, ¶ 78. The probation officer concluded with a discussion of factors that might warrant upward departure and a sentence outside the advisory guideline system. Id. at 16-17, ¶¶ 91-92. Movant had no objections to the PSR, but asked the court to consider factors in mitigation that he said would be presented in a sentencing memorandum. CR Doc. 31. On December 28, 2015, movant submitted his sentencing memorandum. CR Doc. 32. By order signed December 31, 2015, the court gave notice that it had tentatively concluded that a sentence of imprisonment significantly above the top of the advisory guideline imprisonment range would be appropriate. CR Doc. 25.

         At sentencing, the court adopted the findings and conclusions of the presentence report, and noting a great deal of concern regarding movant's participation in other uncharged robberies that occurred while he was on deferred adjudication for two offenses of burglary of a habitation as well as his membership in the Como Crips gang, sentenced movant to a term of imprisonment of 80 months. CR Doc. 39. Movant appealed, but his attorney filed a motion to withdraw along with an Anders[2] brief.

         The court of appeals agreed with her assessment that the appeal presented no nonfrivolous issue for appellate review. CR Doc. 45.

         On October 18, 2016, the appeal was dismissed as frivolous. CR Doc. 44.

         II.

         Grounds of the Motion

         Movant urges two grounds in support of his motion, worded as follows:

Ground One: The sentence attached to the instant case, as is, serves to violate due process, based upon the premise, that it was increased resulting from an Abuse of Discretion by the trial court, with the ...

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