United States District Court, N.D. Texas, Fort Worth Division
MEMORANDUM OPINION AND ORDER
MCBRYDE UNITED STATES DISTRICT JUDGE.
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.
record in the underlying criminal case reflects the
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. 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.
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.
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
Grounds of the Motion
asserts four grounds in support of his motion, worded as
GROUND ONE: Innocence of crime against the
government Doc. 1 at PageID 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.