United States District Court, N.D. Texas, Dallas Division
MEMORANDUM OPINION AND ORDER AND ORDER DENYING
CERTIFICATE OF APPEALABILITY
KINKEADE UNITED STATES DISTRICT JUDGE
the Court is the Motion Under 28 U.S.C. § 2255 to
Vacate, Set Aside, or Correct Sentence by a Person
in Federal Custody, filed by counsel on November 18,
2016 (See 3:16-CV-3242-K, doc. 1). Based on the
relevant findings and applicable law, the motion is
DENIED with prejudice.
Williams (Movant) challenges his federal conviction and
sentence in Cause No. 3:13-CR-295-K-23. The respondent is the
United States of America (Government).
August 6, 2013, Movant was charged by indictment with
conspiracy to possess with intent to distribute 1, 000
kilograms or more of marijuana, in violation of 21 U.S.C.
§§ 841(a)(1), (b)(1)(A), and 846. (See
3:13-CR-295-k-3, doc. 1.) Then, on October 2, 2013, he was
charged in a superseding indictment with the same charge.
(See id., doc. 227.) Finally, on May 9, 2014, he was
charged by superseding information with conspiracy to possess
with intent to distribute 100 kilograms or more of marijuana.
(See id., doc. 592.)
was represented by attorney Lawrence W. Levin from his
initial appearance through his guilty plea. Attorney Kirk F.
Lechtenberger became Movant's counsel shortly thereafter,
on October 20, 2014, and represented him through sentencing.
factual resume, Movant agreed that he was part of a
conspiracy that involved 100 kilograms or more of a mixture
and substance containing a detectable amount of marijuana,
and that he committed the essential elements of the drug
conspiracy. (See id., doc. 596 at 2-3.) He further
agreed that the limited purpose of the factual resume was to
demonstrate that a factual basis existed to support his plea
of guilty to the superseding information. (See id.,
doc. 596 at 3.)
plea agreement, Movant agreed to plead guilty to the
superseding information, and the parties agreed that the
maximum and minimum penalties that the Court could impose
were not less than five years nor more than 40 years.
(See id., doc. 594 at 1-2.) Movant agreed to waive
his rights to appeal from his conviction or sentence.
(See id., doc. 594 at 6.) He reserved his right to
bring a direct appeal (of a sentence exceeding the statutory
maximum punishment, or an arithmetic error at sentencing); a
challenge to the voluntariness of his plea of guilty or the
waiver; and to bring a claim of ineffective assistance of
counsel. (See id., doc. 594 at 6.)
September 3, 2014, the United States Probation Office (USPO)
filed a Presentence Report (PSR) in which it applied the
November 1, 2013 United States Sentencing Guidelines Manual
(USSG). (See id., doc. 783-1 at 10, ¶ 35.) For
count one, the base offense level was calculated under USSG
§2D1.1 and determined to be 32. (See id., doc.
783-1 at 10, ¶ 36.) Two levels were added because a
dangerous weapon was possessed. (See id., doc. 783-1
at 11, ¶ 37.) Two additional levels were added because
Movant maintained a premises for the purpose of distributing
a controlled substance. (See id., doc. 783-1 at 11,
¶ 38.) Three levels were added because he was a manager
or a supervisor (but not an organizer or leader) and the
criminal activity involved five or more participants or was
otherwise extensive. (See id., doc. 783-1 at 11,
¶ 40.) Based on a criminal history category history
category of I and a total offense level of 36, the resulting
guideline range was 188 to 235 months. (See id.,
doc. 783-1 at 20, ¶ 98.) Movant was also subject to a
minimum term of imprisonment of 5 years and a maximum term of
imprisonment of 40 years. (See id., doc. 783-1 at
20, ¶ 97) (citing 21 U.S.C. 841(a)(1), (b)(1)(B), 846).
objected to the two-level gun enhancement. (See id.,
doc. 952 at 1-2.) Counsel also objected to the two-level
enhancement for maintaining a premises for the purpose of
distributing a controlled substance. (See id., doc.
952 at 2-3.) Counsel objected to the three-level enhancement
on the basis that he was a manager or supervisor. (See
id., doc. 952 at 3-4.) Finally, counsel objected to the
two-point reduction for safety valve not being factored into
the computation. (See id., doc. 952 at 4.) Counsel
sought a two-level reduction for the proposed amendment to
the guidelines that were expected to become effective on
November 1, 2014. (See id., doc. 952 at 4.) In the
PSR Addendum, the USPO agreed with counsel's two-level
objection corresponding to the November 1, 2014 Guidelines
Manual. (See id., doc. 960-1.)
to sentencing, the Government filed a motion for a four-level
downward departure pursuant to USSG §5K1.1 and 18 U.S.C.
§ 3553(e). (See id., doc. 1132.) At sentencing,
held on November 12, 2015, the Court overruled the
objections, accepted the findings of the USPO as the findings
of the Court, and granted the §5K1.1 motion. (See
id., doc. 1205 at 21.) The offense level was determined
to be 30, Movant's guideline range was 97 to 121 months,
and he had a mandatory minimum of 60 months. (See
id., doc. 1205 at 3.) He was sentenced to 60 months'
imprisonment, which was a below-guidelines sentence. (See
id., doc. 1136 at 2.)
did not file a direct appeal. On November 18, 2016, Movant
filed his § 2255 motion and brief in support.
(See 3:16-CV-3242-K, docs. 1, 2.) The Government
filed a response. (See id., doc. 5.) Movant filed a
reply. (See id., doc. 6.)
SCOPE OF RELIEF UNDER § 2255
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. Gaudet, 81 F.3d 585, 589 (5th Cir.
1996) (citations and internal quotation marks omitted). It is
well-established that “a collateral challenge may not
do service for an appeal.” United ...