United States District Court, W.D. Texas, El Paso Division
KIRY HAKEEM NALLS, Reg. No. 65274-380, Movant,
UNITED STATES OF AMERICA, Respondent.
MEMORANDUM OPINION AND ORDER
R. MARTINEZ UNITED STATES DISTRICT JUDGE
day, the Court considered Movant Kiry Hakeem Nalls's
[hereinafter "Movant"] "Motion under 28 U.S.C.
§ 2255 to Vacate, Set Aside, or Correct Sentence by a
Person in Federal Custody" (ECF No. 160) [hereinafter
"§ 2255 Motion"], filed on July 24, 2019, in
the above-captioned cause. Therein, Movant challenges the
120-month sentence that the Court imposed after Movant
pleaded guilty to knowingly obtaining the labor of another
person by force. Specifically, Movant asserts that the recent
Supreme Court case Rehaif v. United States, 139
S.Ct. 2191 (2019), allows for a new challenge to his
sentence. After due consideration, the Court is of the
opinion that the § 2255 Motion should be denied, for the
reasons that follow. Additionally, the Court is of the
opinion that Movant should be denied a certificate of
BACKGROUND AND PROCEDURAL HISTORY
January 30, 2014, Movant pleaded guilty, pursuant to a Plea
Agreement, to an information charging him with knowingly
obtaining the labor of another person by force, in violation
of 18 U.S.C. § 1589(a). Minute Entry, Jan. 30, 2014, ECF
agreed "that the facts set out in the . . . factual
basis" attached to the Plea Agreement were "true
and correct." Plea Agreement 4, Jan. 29, 2014, ECF No.
72. According to the factual basis, in January of 2013,
Movant met a twenty-two-year-old woman named J.C. on
Facebook. See Id. at 5-6. At the time they met, J.C.
was living in Las Cruces, New Mexico. In February of 2013,
Movant convinced J.C. to move from Las Cruces and stay with
him in a motel room in El Paso, Texas. After a few days
together, Movant obtained J.C.'s consent to prostitute
herself for a short period of time in order to make money for
food, drugs, and rent. Movant posted advertisements on the
internet to find clients for J.C. When J.C. told Movant that
she no longer wanted to prostitute herself, Movant threatened
her and forced her to continue to meet with customers and
perform sex acts.
March 3, 2013, J.C. escaped from the motel room. She asked
for help, but no one assisted her. Eventually, J.C. hid
behind a bush, but Movant found her and pulled her by the
hair into a vehicle driven by a codefendant. While in the
vehicle, J.C. was repeatedly beaten by Movant as the
codefendant drove them into the desert. "Two firearms
were in the vehicle during the incident." Id.
at 6. On the way back to the motel, J.C. overheard the
codefendant suggest that they hide the firearms at his
mother's house. Additionally, J.C. saw the codefendant
"place the guns on the side of the house."
Id. Meanwhile, local police officers had been
alerted and were waiting at the motel. They arrested Movant
and the codefendant when the two returned.
probation officer who prepared Movant's Presentence
Investigation Report ("PSR") determined that the
base offense level in Sentencing Guideline § 2H4.1(a)(1)
for a violation of 18 U.S.C. § 1589(a) was 22. PSR
¶ 43, Apr. 9, 2014, ECF No. 100. Furthermore, the
probation officer increased the offense level by four levels
pursuant to Sentencing Guideline § 2H4.1(b)(2)(A)
because "Nails used one of the guns to hit J.C."
Id. at ¶ 44. Additionally, the probation
officer determined that, because Movant committed another
felony-forcing J.C. into prostitution-in connection with the
peonage or involuntary servitude offense, the resulting
offense level was forty pursuant to Sentencing Guideline
§ 2H4.1(b)(4). Id. at ¶ 45. Furthermore,
the probation officer added two levels pursuant to Sentencing
Guideline § 3B 1.1(c) because Movant managed and
supervised J.C.'s prostitution activities and detained
her against her will. Id. at ¶ 47. Finally, the
probation officer deducted three levels for Movant's
acceptance of responsibility. Id. at ¶ 50.
Accordingly, the probation officer concluded the following:
Based on a total offense level of 39 and a Criminal History
Category of IV, the guideline range for imprisonment is 360
months to life. U.S.S.G. Chapter 5, Part A. However, pursuant
to U.S.S.G. § 5Gl.l(a), where a statutorily authorized
maximum sentence is less than the minimum of the applicable
guideline range, the statutory authorized maximum sentence
shall be the guideline sentence. As such, the guideline range
is 240 months.
Id. at ¶ 86.
Movant and the Government negotiated a sentencing
stipulation. Am. to Plea Agreement, Apr. 9, 2014, ECF No. 98.
Under its terms, "the parties agree[d] and stipulate[d]
that the cross-reference to other provisions of the
sentencing guidelines under U.S.S.G. § 2H4.1(b)(4)
should not be applied." Id. at 1.
the probation officer re-calculated the sentence without the
cross references as follows:
[T]he Base Offense Level would be 22 pursuant to §
2H1.4(a)(1); plus a two-level increase as the victim
sustained serious bodily injury, pursuant to § 2H4.1(a);
and plus a four-level increase for use of a firearm, pursuant
to § 2H1.4(b)(2), resulting in an adjusted offense level
28, plus two levels upward adjustment for aggravating role
and a three-level reduction for acceptance of responsibility.
The resulting Total Offense Level would be 27 and a Criminal
History Category IV. Therefore, based on a Total Offense
Level of 27 and a Criminal History Category of IV, the
guideline imprisonment range would be 100 to 125 months.
to PSR 3, Apr. 9. 2014, ECF No. 100-1.
objected to the assertion in the PSR that he used ...