United States District Court, N.D. Texas, Dallas Division
FINDINGS, CONCLUSIONS, AND RECOMMENDATION
CARRILLO RAMIREZ UNITED STATES MAGISTRATE JUDGE.
Special Order 3-251, this habeas case has been
automatically referred for findings, conclusions, and
recommendation. Based on the relevant findings and applicable
law, the Motion under 28 U.S.C. to Vacate, Set Aside, or
Correct Sentence by a Person in Federal Custody (doc.
2), received on June 29, 2017, should be
DENIED with prejudice.
Lynn Lewis, Jr. (Movant) challenges his federal conviction
and sentence in Cause No. 3:14-CR-372-G. The respondent is
the United States of America (Government).
Plea and Sentencing
September 24, 2014, Movant was charged by indictment with
being a felon in possession of a firearm in violation of 18
U.S.C. §§ 922(g)(1), 924(a)(2) (count one), and
possession with intent to distribute a controlled substance
in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C) (count
two). (See doc. 1.) He was arrested, made his initial
appearance, was appointed counsel, and pleaded not guilty on
October 17, 2014. (See docs. 6, 8, 11.) His
appointed counsel entered an appearance on October 20, 2014.
(See doc. 12.) The case was set for trial on
December 15, 2014. (See doc. 13.) On November 13,
2014, counsel filed an unopposed motion for a continuance so
that she could complete her investigation of the case and
locate and interview additional witnesses, and so that Movant
could decide whether to plead guilty or proceed to trial.
(See doc. 15.) The motion was granted, and the case
was reset for trial on February 9, 2015. (See doc.
January 6, 2015, Movant was charged by superseding indictment
with being a felon in possession of a firearm in violation of
18 U.S.C. §§ 922(g)(1), 924(a)(2) (count one),
maintaining a drug-involved premises in violation of 21
U.S.C. § 856(a)(1) (count two), possession with intent
to distribute a controlled substance in violation of 21
U.S.C. §§ 2, 841(a)(1), (b)(1)(C) (count three),
possession with intent to distribute a controlled substance
in violation of 21 U.S.C. § 841(a)(1), (b)(1)(D) (count
four), and possession of a firearm in furtherance of a drug
trafficking crime, possession with intent to distribute a
controlled substance in violation of 18 U.S.C. §
924(c)(1)(A) (count five). (See doc. 20.) Between
January 28, 2015, and May 18, 2015, Movant filed three
motions to continue the case, which were granted. (See docs.
26-31.) In June 2015, Movant retained counsel, who
substituted in for appointed counsel. (See docs. 32,
pleaded guilty on September 9, 2015. (See doc. 66.)
In a plea agreement, he stated that he understood and waived
his rights to plead not guilty, to have a trial by jury, to
have his guilt proven beyond a reasonable doubt, to confront
and cross-examine witnesses, to call witnesses, and to not be
compelled to incriminate himself. (See doc. 35 at
1.) He understood the nature and elements of the crime and
agreed that the factual resume was true. (See id. at
2.) The plea agreement set out the range of punishment and
stated that he had discussed the federal sentencing
guidelines with counsel and understood that the sentence
would be imposed by the Court after consideration of the
sentencing guidelines, which were advisory and not binding.
He understood that no one could predict with certainty the
outcome of the Court's consideration of the guidelines,
and that the sentence imposed was solely in the discretion of
the Court. (See id. at 2-4.) He had reviewed all
legal aspects and facts of the case with counsel and believed
that it was in his best interest to plead guilty. (See
id. at 7.) The guilty plea was freely and voluntarily
made and was not the result of force or threats, or of
promises apart from those included in the plea agreement.
(See id. at 6.) He waived his right to contest his
conviction and sentence in any direct appeal or collateral
proceeding, except to bring a direct appeal challenging his
sentence as either exceeding the statutory maximum punishment
or having been calculated by way of an arithmetic error, to
challenge the voluntariness of his plea or waiver, and to
bring a claim of ineffective assistance of counsel. (See
id. 6-7.) In exchange, the Government agreed not to
bring any additional charges against him based on the conduct
underlying and related to his guilty plea, and it agreed to
dismiss any remaining charges. (See id. at 5-6.)
September 9, 2015, Movant and counsel appeared for his guilty
plea, and he testified under oath. (See doc. 66.) He
stated he understood his constitutional rights, knew that a
guilty plea waived his rights, and understood the
consequences of pleading guilty. (See id. at 8-9.)
He understood the charges against him and admitted that he
committed the offenses. (See id. at 3, 8.) He
understood the range of punishment. (See id. at
6-7.) He had reviewed the plea agreement with counsel and
understood everything in it. (See id. at 5-6.)
Movant understood that his plea had to be voluntary and not
induced by pressure, coercion, or threats. (See id.
at 10.) No one made him plead guilty. (See id. at
13) Other than the plea agreement, no one promised him any
benefit in exchange for the guilty plea. (See id. at
10.) He pleaded guilty to counts one, three, and five of the
superseding indictment, and the Court found that his guilty
plea was knowing and voluntary. (See id. at
December 11, 2015, the United States Probation Office (USPO)
filed a Presentence Report (PSR) in which it applied the 2015
United States Sentencing Guidelines Manual (USSG).
(See doc. 45-1 at 8, ¶ 25.) It found that the
base offense level for counts one and three, with a two-level
increase for obstruction of justice by attempting to suborn
perjury, was 28. (See id. at 9, ¶¶ 35,
39.) Based on a criminal history category of six, the
resulting guideline range for counts one and three was
140-175 months' imprisonment. (See id. at 23,
¶ 94.) For count five, the guideline sentence was the
statutory five-year sentence. (See id. at 9-10,
January 27, Movant appeared for sentencing. (See
doc. 67.) He was sentenced to 120 months' imprisonment on
count one and 156 months' imprisonment on count three, to
be served concurrently, and to 60 months' imprisonment on
count five, to be served consecutively to the other two
sentences. The remaining charges were dismissed.
(See doc. 52.)
appeal, counsel filed a brief under Anders v.
California, 386 U.S. 736 (1967), and the appeal was
dismissed. See United States v. Lewis, No. 16-10115
(5th Cir. Feb. 21, 2017); (see also doc. 70).