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Barrett v. United States

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

December 27, 2019



          John McBryde United States District Judge.

         Came on for consideration the motion of Michael Barrett, movant, under 28 U.S.C. § 2255 to vacate, set aside, or correct sentence. The court, having considered the motion with its attached memorandum, the government's response, movant's reply, the record in the underlying criminal case, No. 4:16-CR-132-A, styled "United States v. Charles Ben Bounds, et al., " and applicable authorities, finds that the motion should be denied.



         The record in the underlying criminal case reflects the following:

         On June 15, 2016, movant was named, along with others, in a one-count second superseding indictment charging him 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 Doc.[1] 286. On August 5, 2016, 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. 496. 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. 497. 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. 1313.

         The probation officer prepared the PSR, which reflected that movant's base offense level was 34. CR Doc. 793 ¶ 35. He received two-level enhancements for possession of a dangerous weapon, id. ¶ 36, importation from Mexico, id. ¶ 37, and maintaining a drug premises. Id. ¶ 38. He received a two-level and a one-level reduction for acceptance of responsibility. Id. ¶¶ 44, 45. Based on a total offense level of 37 and a criminal history category of IV, movant's guideline range was 292 to 365 months. Id. ¶ 104. Movant filed numerous objections, CR Doc. 12 05, and the probation officer prepared an addendum to the PSR. CR Doc. 924. The probation officer opined that movant frivolously contested the relevant conduct in the PSR, objecting to 12 of 17 paragraphs. In addition, the probation officer determined that movant should be held accountable for a greater quantity of drugs. Thus, the guideline range was recalculated to omit acceptance of responsibility and include the increased amount of drugs. The new guideline range was 360 months to life, but the statutorily-authorized maximum sentence was 4 0 years. Thus, the new range became 360 months to 480 months. Id. Movant objected to the addendum. CR Doc. 12 06.

         On January 20, 2017, movant was sentenced to a term of imprisonment of 42 0 months, to be followed by a 4-year term of supervised release. CR Doc. 1091. He appealed on his own, CR Doc. 1100, and through his attorney, Leigh W. Davis ("Davis"). CR Doc. 1111.

         Davis filed a motion to withdraw as counsel and for appointment of new counsel for movant. CR Doc. 1136. The court set Davis's motion for hearing. CR Doc. 1137. Movant filed his own motion for appointment of new counsel for appeal. CR Doc. 114 0. The court held a hearing on February 2, 2017, and denied the motion to withdraw. CR Doc. 1144; CR Doc. 1145. Movant, acting pro se, filed an amended motion to appoint appellate counsel, CR Doc. 1306, which the court denied. CR Doc. 1307.

         The United States Court of Appeals for the Fifth Circuit affirmed the judgment as well as the court's order denying the motion to withdraw and substitute counsel. United States v. Barrett, 718 Fed.Appx. 288 (5th Cir. 2018) . The Court thereafter allowed Davis to withdraw. CR Doc. 1475. Movant filed a pro se petition for writ of certiorari, which was denied. Barrett v. United States, 139 S.Ct. 786 (2019).


         Grounds of the Motion

         Movant raises eight grounds in support of his motion, worded as follows:

GROUND ONE: Ineffective Assistance of Counsel Doc.[2] 1 at PageID[3 ...

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