United States District Court, N.D. Texas, Fort Worth Division
MEMORANDUM OPINION AND ORDER
MCBRYDE, UNITED STATES DISTRICT JUDGE
for consideration the motion of Victor Alex Taber, Jr.,
movant, under 2 8 U.S.C. § 22 55 to vacate, set aside,
or correct sentence. After having considered the motion, the
government's response, and pertinent parts of the record
in Case No. 4:17-CR-157-A, styled "United States of
America v. Cameron Miles Baker, et al.," the court has
concluded that the motion should be dismissed.
reply to the government's response, movant has filed a
motion to withdraw his motion without prejudice. He does not
cite any authority in support of the motion and the court is
aware of none. The court is not persuaded that a movant can
wait until it becomes evident that his motion will be denied
on the merits or dismissed before seeking leave to withdraw
it. See Felder v. McVicar, 113 F.3d 696, 698 (7th
Cir. 1997). Cf . Kramer v. Butler, 845 F.2d 1291,
1294-95 (5th Cir. 1988).
contained in the record of the underlying criminal case
discloses the following:
September 20, 2017, movant was named in a one-count
information 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. § 846. CR
80. On October 3, 2017, 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. 98. 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. 10 0. They also signed a waiver of indictment. CR Doc.
99. 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
probation officer prepared a PSR that indicated that
movant's base offense level was 32. CR Doc. 117, ¶
28. He received a two-level enhancement for possession of a
firearm, id. ¶ 29, a two-level enhancement for
importation, id. ¶ 30, and a two-level
enhancement for maintaining a drug premises, id.
¶ 31. He received a two-level and a one-level reduction
for acceptance of responsibility. Id. ¶ 37, 38.
Based on a total offense level of 3 5 and a criminal history
category of VI, movant's guideline range was 292 to 365
months. Id. ¶ 101. Movant filed objections, CR
Doc, 195, and the probation officer prepared an addendum to
the PSR. CR Doc. 141. Movant again filed objections. CR Doc.
196. The probation officer prepared a second addendum to the
PSR. CR Doc. 164.
February 2, 2018, movant was sentenced to a term of
imprisonment of 365 months. CR Doc. 173. He appealed, CR Doc.
201, and his sentence was affirmed. United States v.
Taber, 764 Fed.Appx. 426 (5th Cir. 2019).
of the Motion
court is unable to discern any ground in support of
movant's motion. Doc. 1. As best the court can tell, movant
contends that his sentence was imposed in violation of the