United States District Court, N.D. Texas, Fort Worth Division
GREGORY P. DAMM, Movant,
UNITED STATES OF AMERICA, Respondent.
MEMORANDUM OPINION AND ORDER
McBryde United States District Judge.
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.
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. 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.
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.
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).
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. 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.
the South Carolina action was pending, movant filed his
motion under § 2255 in this court. 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.
of the Motion
sets forth four grounds in support of his motion, worded as
GROUND ONE: The judgment violates the
constitution or laws of the United ...