United States District Court, E.D. Kentucky, Southern Division, London
MEMORANDUM OPINION AND ORDER
C. Reeves, United States District Judge.
matter is pending for consideration of Defendant/Movant
Robert Scott Sheppard's motion to vacate, set aside, or
correct his sentence pursuant to 28 U.S.C. § 2255.
[Record No. 375] Because the record conclusively establishes
that Sheppard is not entitled to any relief, the motion will
be denied without further proceedings. See Arredondo v.
United States, 178 F.3d 778, 782 (6th Cir. 1999)
(quoting Blanton v. United States, 94 F.3d 227, 235
(6th Cir.1996) (“An evidentiary hearing is required
unless ‘the record conclusively shows that the
petitioner is entitled to no relief.'”);
Engelen v. United States, 68 F.3d 238, 240 (8th Cir.
1995) (“[N]o hearing is required if the
petitioner's allegations ‘cannot be accepted as
true because they are contradicted by the record, inherently
incredible, or conclusions rather than statements of
is a long-time criminal with over twenty prior convictions
and even more arrests. [See Record No. 312 at
¶¶49-78.] As particularly relevant here, Sheppard
pleaded guilty in 1998 to Louisiana state charges of
aggravated battery and simple criminal damage to property.
[Id. at ¶51] Charging documents allege that, on
or about November 2, 1997, Sheppard and three others
assaulted a man using brass knuckles, a metal pipe, and a
hammer. They further damaged the victim's truck. Sheppard
was sentenced to three years' incarceration for the
aggravated battery charge. [Id.]
numerous other convictions for battery, assault, trespassing,
criminal mischief, and possession of controlled substances
(to name a few), Sheppard pleaded guilty in 2005 in a
Kentucky state court to unlawfully possessing methamphetamine
precursors. [Id. at 57] Sheppard was originally
charged with manufacturing methamphetamine, but pleaded to
the amended charge of possessing precursors (with intent to
manufacture), a Class D felony. [Id.] Further, in
2011 Sheppard pleaded guilty in an Indiana state court to
possessing chemical reagents or precursors with intent to
manufacture. [Record No. 312 at ¶66] Sheppard and
another individual had been arrested for shoplifting a
one-pound bottle of lye, and were found to be in possession
of unopened instant cold packs (both methamphetamine
precursors) containing chemicals listed in the Indiana
statute. The conviction was a Class C felony. [Id.]
was indicted federally on May 22, 2014, on two counts of
being a felon in possession of a firearm in violation of
Title 18 of the United States Code, Section 922(g)(1).
[Record No. 8] The indictment was based upon two separate
instances in Whitley County, Kentucky (in 2012 and 2014)
whereupon Sheppard admitted to being in possession of
firearms. [Id.; Record No. 346] For the
2012 charge, Sheppard admitted to discharging a firearm,
striking an acquaintance in the back, although he claimed
that he intended to shoot him in the buttocks. [Record No.
312 at 25; Record No. 346] In February 2014, Sheppard was
found hiding in a basement with, among other things, a
shotgun and a pistol. [Id.]
February 6, 2015, Sheppard pleaded guilty to both counts
charged pursuant to a written plea agreement. [Record Nos.
158 and 295] A Presentence Investigation Report
(“PSR”) prepared by the United States Probation
Office calculated Sheppard's total offense level as 27.
[Record No. 312 at ¶47] Sheppard's base offense
level was 24 under §2K2.1(a)(2), based upon two or more
prior felony convictions for crimes of violence or controlled
substance offenses. [Id. at ¶38] Pursuant to
§2K2.1(b)(1)(A), Sheppard was assessed a two-level
increase because the offense involved 3 to 7 firearms.
[Id. at ¶38] Sheppard was also assessed a
four-level increase for using a firearm in connection with a
felony offense, pursuant to §2K2.1(b)(6)(B).
[Id. at ¶40] Finally, Sheppard received a
three-level reduction for acceptance of responsibility,
resulting in a total offense level of 27. [Id. at
¶¶46 and 47] Based on Sheppard's criminal
history, his non-binding guideline imprisonment range was 130
months to 162 months. [Record No. 312 at 19]
to sentencing, Sheppard's counsel objected to the
proposed four-level increase for use of a firearm in
connection with a felony offense. [Record No. 219] He argued
that Sheppard's state of mind when using the firearm
could not qualify the offense as assault, because he had
intended to defend a family from an intruder. [Id.]
The Court heard testimony during the sentencing hearing but
found sufficient evidence to support the enhancement. [Record
No. 346] Sheppard was sentenced on August 21, 2015, to a
total term of incarceration of 162 months, followed by a
three-year term of supervised release. [Record Nos. 300 and
302] Sheppard's sentence was reflected his extensive
criminal history (i.e, his history and characteristics) as
well as all other relevant statutory sentencing factors.
timely appealed his sentence, arguing that it was both
procedurally and substantively unreasonable. [See
Record No. 310] However, on October 14, 2016, the Sixth
Circuit affirmed Sheppard's sentence, finding his
arguments to be without merit. [Record No. 368] On February
13, 2017, Sheppard filed a timely motion to vacate, set
aside, or correct his sentence under 28 U.S.C. § 2255.
[Record No. 375] Based upon the Supreme Court's decision
in Johnson v. United States, 135 S.Ct. 2551 (2015),
the pending case Beckles v. United States, 137 S.Ct.
886 (2017), and the holding in Descamps v. United
States, 133 S.Ct. 2276 (2013), Sheppard argued that he
did not have two prior-qualifying felony convictions and,
therefore, his base level offense was improperly increased to
April 10, 2017, Sheppard filed a “Supplemental
Memorandum of Facts and Law” in support of his §
2255 motion. [Record No. 382] The supplemental filing further
elaborated on Sheppard's claims regarding the
allegedly-improper base offense level increase and,
importantly, clarified that his petition was predicated upon
his attorney's failure to object to the base offense
level increase. [Id.] Finally, on May 10, 2017,
Sheppard filed a motion to amend his petition, arguing that
his attorney was also ineffective by failing to object to the
two-level increase for the number of firearms involved in the
offense. [Record No. 385] Because the proposed amendment was
timely and non-frivolous, the motion was granted. [Record No.
motion, as amended, challenges his base offense level
increase under §2K2.1(a)(2) and his two-level
enhancement under §2K2.1(b)(1)(A) for possessing three
firearms. As for the former challenge, Sheppard asserts that
he does not have the requisite prior felony convictions to
qualify for a base level of 24. Regarding the latter claim,
Sheppard argues that, because he did not possess three or
more firearms at the same time, he does not qualify
for the quantity enhancement under §2K2.1(b)(1)(A).
Sheppard contends that his counsel's failure to object to
these enhancements prejudiced him by resulting in a greater
sentence than he otherwise would have received.
obtain relief on the grounds of ineffective assistance of
counsel, Sheppard must establish “(1) that his
lawyer's performance was deficient as compared to an
objective standard of reasonable performance and (2) that
there is a reasonable probability that the lawyer's
errors prejudiced the outcome of the proceedings against
him.” Arredondo v. United States, 178 F.3d
778, 782 (6th Cir. 1999) (citing Strickland v.
Washington, 466 U.S. 668, 687-88 (1984)). “A
reasonable probability is a probability sufficient to
undermine confidence in the outcome; it is a less demanding
standard than ‘more likely than not.'”
Id. (citing Strickland, 466 U.S. at 693-94)
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