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Nixon v. United States

United States District Court, N.D. Texas, Fort Worth Division

December 3, 2019

MICHAEL DEMON NIXON, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION AND ORDER

          JOHN MCBRYDE UNITED STATES DISTRICT JUDGE.

         Came on for consideration the motion of Michael Demon Nixon, movant, to vacate, set aside, or correct sentence pursuant to 2 8 U.S.C. § 2255. The court, having considered the motion, the memorandum in support, the government's response, the reply, the record in the underlying criminal case, No. 4:17-CR-189-A, and applicable authorities, finds that the motion should be denied.

         I. Background

         The record in the underlying criminal case reflects the following:

         On September 20, 2017, movant was named in a one-count indictment charging him with being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). CR Doc.[1] 4. On November 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. 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. 22. 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. 41.

         The probation officer prepared the PSR, which reflected that movant's base offense level was 14. CR Doc. 26, ¶ 25. He received a two-level increase for involvement of 3-7 firearms, id. ¶ 26, a two-level increase for a stolen firearm, id. ¶ 27, and a four- level increase for possession of the firearms in connection with another felony offense, id. ¶ 28- He received a two-level and a one-level decrease for acceptance of responsibility. Id. ¶¶ 35, 36. Based on a total offense level of 19 and a criminal history category of VI, movant's guideline imprisonment range was 63 to 78 months. Id. ¶ 109. The PSR also provided a discussion of factors that might warrant a departure and sentence outside of the advisory guideline system. Id. ¶¶ 121-23. Movant made objections to the PSR, CR Doc. 29, and the probation officer prepared an addendum. CR Doc. 31.

         The court sentenced movant to a term of imprisonment of 105 months. CR Doc. 36. He appealed, CR Doc. 38, and his sentence was affirmed. United States v. Nixon, 747 Fed.Appx. 995 (5th Cir. 2019}. His petition for writ of certiorari was denied. Nixon v. United States, 139 S.Ct. 2626 (2019).

         II. Grounds of the Motion

         Movant asserts four grounds in support of his motion, worded as follows:

GROUND ONE: Innocence of crime against the government Doc.[2] 1 at PageID[3] 4.
GROUND TWO: Involuntary and unknowingly [sic] guilty plea Id. at PageID 5.
GROUND THREE: Court lacked subject matter jurisdiction to impose sentence Id. at PageID 7.
GROUND FOUR: Misapplication of guidelines in violation of due process Id. at PageID 8.

         III. Stand ...


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