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Lewis v. United States

United States District Court, N.D. Texas, Dallas Division

March 8, 2019

KERRY LYNN LEWIS, JR., ID # 48739-177, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          FINDINGS, CONCLUSIONS, AND RECOMMENDATION

          IRMA CARRILLO RAMIREZ UNITED STATES MAGISTRATE JUDGE.

         By 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.

         I. BACKGROUND

         Kerry 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).

         A. Plea and Sentencing

         On 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.)[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. 16.)

         On 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, 33.)

         Movant 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.)

         On 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 10.)

         On 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, ¶ 40.)

         On 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.)

         On 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).

         B. Subst ...


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