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Nalls v. United States

United States District Court, W.D. Texas, El Paso Division

August 2, 2019

KIRY HAKEEM NALLS, Reg. No. 65274-380, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION AND ORDER

          PHILIP R. MARTINEZ UNITED STATES DISTRICT JUDGE

         On this day, the Court considered Movant Kiry Hakeem Nalls's [hereinafter "Movant"] "Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody" (ECF No. 160)[1] [hereinafter "§ 2255 Motion"], filed on July 24, 2019, in the above-captioned cause. Therein, Movant challenges the 120-month sentence that the Court imposed after Movant pleaded guilty to knowingly obtaining the labor of another person by force. Specifically, Movant asserts that the recent Supreme Court case Rehaif v. United States, 139 S.Ct. 2191 (2019), allows for a new challenge to his sentence. After due consideration, the Court is of the opinion that the § 2255 Motion should be denied, for the reasons that follow. Additionally, the Court is of the opinion that Movant should be denied a certificate of appealability.

         I. BACKGROUND AND PROCEDURAL HISTORY

         On January 30, 2014, Movant pleaded guilty, pursuant to a Plea Agreement, to an information charging him with knowingly obtaining the labor of another person by force, in violation of 18 U.S.C. § 1589(a). Minute Entry, Jan. 30, 2014, ECF No. 74.

         Movant agreed "that the facts set out in the . . . factual basis" attached to the Plea Agreement were "true and correct." Plea Agreement 4, Jan. 29, 2014, ECF No. 72. According to the factual basis, in January of 2013, Movant met a twenty-two-year-old woman named J.C. on Facebook. See Id. at 5-6. At the time they met, J.C. was living in Las Cruces, New Mexico. In February of 2013, Movant convinced J.C. to move from Las Cruces and stay with him in a motel room in El Paso, Texas. After a few days together, Movant obtained J.C.'s consent to prostitute herself for a short period of time in order to make money for food, drugs, and rent. Movant posted advertisements on the internet to find clients for J.C. When J.C. told Movant that she no longer wanted to prostitute herself, Movant threatened her and forced her to continue to meet with customers and perform sex acts.

         On March 3, 2013, J.C. escaped from the motel room. She asked for help, but no one assisted her. Eventually, J.C. hid behind a bush, but Movant found her and pulled her by the hair into a vehicle driven by a codefendant. While in the vehicle, J.C. was repeatedly beaten by Movant as the codefendant drove them into the desert. "Two firearms were in the vehicle during the incident." Id. at 6. On the way back to the motel, J.C. overheard the codefendant suggest that they hide the firearms at his mother's house. Additionally, J.C. saw the codefendant "place the guns on the side of the house." Id. Meanwhile, local police officers had been alerted and were waiting at the motel. They arrested Movant and the codefendant when the two returned.

         The probation officer who prepared Movant's Presentence Investigation Report ("PSR") determined that the base offense level in Sentencing Guideline § 2H4.1(a)(1) for a violation of 18 U.S.C. § 1589(a) was 22. PSR ¶ 43, Apr. 9, 2014, ECF No. 100. Furthermore, the probation officer increased the offense level by four levels pursuant to Sentencing Guideline § 2H4.1(b)(2)(A) because "Nails used one of the guns to hit J.C." Id. at ¶ 44. Additionally, the probation officer determined that, because Movant committed another felony-forcing J.C. into prostitution-in connection with the peonage or involuntary servitude offense, the resulting offense level was forty pursuant to Sentencing Guideline § 2H4.1(b)(4). Id. at ¶ 45. Furthermore, the probation officer added two levels pursuant to Sentencing Guideline § 3B 1.1(c) because Movant managed and supervised J.C.'s prostitution activities and detained her against her will. Id. at ¶ 47. Finally, the probation officer deducted three levels for Movant's acceptance of responsibility. Id. at ¶ 50. Accordingly, the probation officer concluded the following:

Based on a total offense level of 39 and a Criminal History Category of IV, the guideline range for imprisonment is 360 months to life. U.S.S.G. Chapter 5, Part A. However, pursuant to U.S.S.G. § 5Gl.l(a), where a statutorily authorized maximum sentence is less than the minimum of the applicable guideline range, the statutory authorized maximum sentence shall be the guideline sentence. As such, the guideline range is 240 months.

Id. at ¶ 86.

         Additionally, Movant and the Government negotiated a sentencing stipulation. Am. to Plea Agreement, Apr. 9, 2014, ECF No. 98. Under its terms, "the parties agree[d] and stipulate[d] that the cross-reference to other provisions of the sentencing guidelines under U.S.S.G. § 2H4.1(b)(4) should not be applied." Id. at 1.

         Accordingly, the probation officer re-calculated the sentence without the cross references as follows:

[T]he Base Offense Level would be 22 pursuant to § 2H1.4(a)(1); plus a two-level increase as the victim sustained serious bodily injury, pursuant to § 2H4.1(a); and plus a four-level increase for use of a firearm, pursuant to § 2H1.4(b)(2), resulting in an adjusted offense level 28, plus two levels upward adjustment for aggravating role and a three-level reduction for acceptance of responsibility. The resulting Total Offense Level would be 27 and a Criminal History Category IV. Therefore, based on a Total Offense Level of 27 and a Criminal History Category of IV, the guideline imprisonment range would be 100 to 125 months.

         Addendum to PSR 3, Apr. 9. 2014, ECF No. 100-1.

         Movant objected to the assertion in the PSR that he used ...


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