Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Schenck v. United States

United States District Court, N.D. Texas, Fort Worth Division

June 28, 2019

PHILLIP SCHENCK, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION AND ORDER

          JOHN McBRYDE JUDGE

         Came on for consideration the motion of Phillip Schenck ("movant") under 28 U.S.C. § 2255 to vacate, set aside, or correct sentence. After having considered the motion, its corrected supporting memorandum, the government's response, the reply, and pertinent parts of the record in No. 4:15-CR-152-A, styled "United States of America v. Eric Summers, et al.," 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 June 10, 2015, movant was named in a one-count indictment charging him and others with conspiracy to possess with intent to distribute 50 grams or more of a mixture and substance containing a detectable amount of methamphetamine, in violation of 21 U.S.C. § 84 6. CR Doc.[1] 14. On August 7, 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. 131. Movant and his attorney signed a factual resume setting forth the elements of the offense, the maximum penalty movant faced, and the stipulated facts supporting movant's guilt. CR Doc. 132. 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 presentence report ("PSR") was prepared; the court could impose a sentence more severe than 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. CR Doc. 3 77.

         The probation officer prepared the PSR, which reflected that movant's base offense level was 36. CR Doc. 171, ¶ 46. He received a two-level enhancement for firearms, id. ¶ 47, a two- level enhancement for importation of methamphetamine from Mexico, id., ¶ 48, and a two-level enhancement for maintaining a drug premises, id. ¶ 49. Based on a total offense level of 42 and a criminal history category of V, movant's guideline range was 3 60 months to life. However, the statutorily authorized maximum sentence was 40 years, so the guideline range became 360 to 480 months. Id. ¶ 147. Movant lodged 18 objections to the PSR. CR Doc. 260. The probation officer prepared an addendum to the PSR. CR Doc. 212 .

         Sentencing took place on January 15, 2016. CR Doc. 376. Movant persisted in his objections. Id. at 4. His counsel stated that movant would testify in support of the objections, but after being cautioned that false testimony could cause a loss of acceptance of responsibility and a two-level increase for obstruction of justice, movant changed his mind. Id. at 6. The court considered and overruled all but one of movant's objections (which had to do with reimbursement of the judiciary for services provided by his court-appointed attorney), adopting the findings of the PSR and addendum as supplemented or modified by findings from the bench. Id. at 15-16. The court, noting that it had seldom seen a criminal history as extensive as movant's, id. at 19, sentenced him to a term of imprisonment of 4 80 months. CR Doc. 249.

         Movant appealed and his sentence was affirmed. United States v. Schenck, 697 Fed.Appx. 422 (5th Cir. 2017). His petition for writ of certiorari was denied. Schenck v. United States, 138 S.Ct. 1308 (2018) .

         II.

         Grounds of the Motion

         Movant raises three grounds, worded as follows:

GROUND ONE: U.S. Attorney violated Schenck's Due Process Rights by failing to provide mitigation evidence in its possession in violation of Brady v. Maryland and committed a fraud upon the Court & Grand Jury

Doc.[2] 1 at PageID[3] 4.

GROUND TWO: Ineffective Assistance of trial/sentencing ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.