United States District Court, N.D. Texas, Fort Worth Division
MEMORANDUM OPINION AND ORDER
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.
contained in the record of the underlying criminal case
discloses the following:
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. 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.
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 .
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.
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) .
of the Motion
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
1 at PageID 4.
GROUND TWO: Ineffective Assistance of