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 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.
record in the underlying criminal case reflects the
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
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.
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.
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.
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.
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).
of the Motion
raises eight grounds in support of his motion, worded as
GROUND ONE: Ineffective Assistance of
Counsel Doc. 1 at PageID[3 ...