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Damm v. United States

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

July 15, 2019

GREGORY P. DAMM, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION AND ORDER

          John McBryde United States District Judge.

         Came on for consideration the motion of Gregory P. Damm ("movant") under 28 U.S.C. § 2255 to vacate, set aside, or correct sentence. After having considered the motion, the supporting memorandum, the government's response, the reply, and pertinent parts of the record in No. 4:16-CR-004-A, styled "United States of America v. Gregory P. Damm," the court has concluded that the motion should be denied.

         I.

         Background

         On January 13, 2016, movant was named in a one-count indictment charging him with failure to register as a sex offender, in violation of 18 U.S.C. § 2250. CR Doc.[1] 4. On March 11, 2016, 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. 23. 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. 24. 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. 48.

         The probation officer prepared the PSR reflecting that movant's base offense level was 16. CR Doc. 29, ¶ 25. He received a two-level and a one-level adjustment for acceptance of responsibility. Id. ¶¶ 32, 33. Based on a total offense level of 13 and a criminal history category of V, movant's guideline imprisonment range was 30 to 37 months. Id., ¶ 106. Defendant lodged objections to the PSR. CR Doc. 31. The probation officer prepared an addendum to the PSR. CR Doc. 33.

         On July 1, 2016, movant was sentenced to a term of imprisonment of 60 months. CR Doc. 41. Movant appealed, CR Doc. 43, and his sentence was affirmed. United States v. Damm, 694 Fed.Appx. 354 (5th Cir. 2017). His petition for writ of certiorari was denied on January 8, 2018. Damm v. United States, 138 S.Ct. 693 (2018).

         On November 26, 2018, movant filed a petition for writ of habeas corpus under 28 U.S.C. § 2241 in the United States District Court for the District of South Carolina where he is confined. Doc.[2] 9, Ex. 1. A United States Magistrate Judge recommended that the petition be re-characterized as a motion under § 2255 and transferred to this district. Id., Ex. 2. Movant agreed with the recommendation. Id., Ex. 3.

         While the South Carolina action was pending, movant filed his motion under § 2255 in this court.[3] Although there might have been an issue as to whether the motion originally filed here was timely, the South Carolina action has now been transferred to this District and assigned to the docket of the undersigned under Civil Action Wo. 4:19-CV-496-A. The court has ordered that these actions be consolidated under Civil Action No. 4:19-CV-392-A. The court now considers the grounds raised on their merits.[4]

         II.

         Grounds of the Motion[5]

         Movant sets forth four grounds in support of his motion, worded as follows:

GROUND ONE: The judgment violates the constitution or laws of the United ...

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