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United States v. Faseler

United States District Court, S.D. Texas, Corpus Christi Division

July 18, 2019

UNITED STATES OF AMERICA, Plaintiff/Respondent,



         Defendant/Movant Michael Cooke Faseler, II, filed a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255, memorandum in support, and supplemental motion under 28 U.S.C. § 2255. D.E. 56, 56-2, 65.[1] Pending before the Court are the United States of America's (the “Government”) motion and supplemental motion for judgment on the record (D.E. 64, 71), to which Movant has responded (D.E 66, 72, 73).

         I. BACKGROUND

         Movant was charged with being a felon in possession of two firearms, which were found on his person after sheriff's deputies were dispatched to a disturbance in which Movant was involved. Movant filed a motion to suppress evidence of the firearms on the grounds the deputies did not have reasonable suspicion to conduct the pat-down search that uncovered the weapons.

         The Court conducted an evidentiary hearing on Movant's motion to suppress, during which Nueces County Sheriff's Deputies Luis Munoz and Eusebio Lerma testified regarding the events that led to Movant's arrest. See 9/21/2016 Supp. Hrg. Tr., D.E. 48. On June 29, 2016, partners Munoz and Lerma were dispatched to a weapons disturbance off Highway 286 and FM 43 at a fireworks stand located on property owned by Movant's father. Witnesses provided a description of two males, one in a red shirt and one in a black shirt and black jeans, who were traveling in a black truck. Deputies learned that the suspect, Movant Michael Faseler, made comments to individuals at the fireworks stand that he was “going to shoot the place up.” Two other officers warned the deputies via radio that local law enforcement had previous disturbance calls at the Faseler residence and Movant was known to be violent.

         When the deputies arrived at the fireworks stand, they spoke to a visibly shaken Justin Kemp. Kemp was the manager of the fireworks stand and stated that the disturbance involved an alleged non-payment of rental income and that Movant had already left the scene. The deputies left but returned an hour later when they received another call stating that Movant had come back to the fireworks stand. Upon their second arrival, the deputies observed two males matching the description provided by the witnesses walking from the fireworks stand to a black truck. The deputies detained the men on suspicion of committing the Texas offense of terroristic threat. They identified Movant, who was wearing a black shirt and black jeans, and his companion, Steven Engel.

         When Deputy Munoz told Movant he was going to pat him down for officer safety, Movant admitted he had two guns on his person. Deputy Munoz performed the pat down and retrieved the two weapons, both of which had a round in the chamber. He also found ammunition in Movant's pocket. Movant had a prior felony conviction and was prohibited from carrying a firearm. He was arrested for terroristic threat and being a felon in possession of a firearm.

         After the Government presented its evidence, the Court asked Movant's counsel if he had any witnesses or evidence to present. Counsel replied that he did not. In closing, Movant's counsel argued that Deputy Munoz was not justified in conducting the pat down, and the deputies could not cite any specific articulable facts that would justify their belief that Movant was armed and dangerous. The Government countered that the testimony adduced at the hearing that Movant threatened to “shoot the place up, ” together with Movant's admission that he was carrying guns on his person, supported Deputy Munoz' execution of the pat-down search. The Court agreed with the Government and denied Movant's motion to suppress.

         On October 17, 2016, Movant entered a conditional guilty plea to Count One of the Indictment, retaining his right to appeal the denial of his motion to suppress.

         The Presentence Investigation Report assigned Movant a base offense level of 24 pursuant to U.S.S.G. § 2K2.1(a)(2) because he had at least two prior felony convictions for either a crime of violence or a controlled substance offense. Two levels were added pursuant to § 2K2.1(b)(1)(A) because the offense involved 3 to 7 firearms.[2] Movant was given a three-level adjustment for acceptance of responsibility. The resulting advisory Guideline range for Level 23, Criminal History Category V, was 84-105 months. On November 28, 2016, the Court sentenced Movant to 70 months' imprisonment and 3 years' supervised release. Judgment was entered the following day.

         In accordance with his conditional plea, Movant appealed the denial of his motion to suppress. On January 24, 2018, the Fifth Circuit affirmed the denial of Movant's motion to suppress and affirmed his conviction and sentence. Movant did not file a petition for certiorari with the Supreme Court. His conviction became final on April 24, 2018. He filed the present motion on July 30, 2018. It is timely.


         Movant claims that defense counsel was constitutionally ineffective because he:

1. Failed to adequately investigate and successfully litigate the motion to suppress, and
2. Failed to object to the four-level enhancement under U.S.S.G. § 2K2.1(a)(2).

         III. ANALYSIS

         A. 28 U.S.C. § 2255

         There are four cognizable grounds upon which a federal prisoner may move to vacate, set aside, or correct his sentence: (1) constitutional issues, (2) challenges to the district court's jurisdiction to impose the sentence, (3) challenges to the length of a sentence in excess of the statutory maximum, and (4) claims that the sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255; United States v. Placente, 81 F.3d 555, 558 (5th Cir. 1996). “Relief under 28 U.S.C. § 2255 is reserved for transgressions of constitutional rights and for a narrow range of injuries that could not have been raised on direct appeal and would, if condoned, result in a complete miscarriage of justice.” United States v. Vaughn, 955 F.2d 367, 368 (5th Cir. 1992).

         B. Ineffective ...

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