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United States v. Sheppard

United States District Court, E.D. Kentucky, Southern Division, London

August 11, 2017

UNITED STATES OF AMERICA, Plaintiff/Respondent,
ROBERT SCOTT SHEPPARD, Defendant/Movant. Civil Action No. 6: 17-033-DCR


          Danny C. Reeves, United States District Judge.

         This 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 fact.'”))


         Sheppard 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.]

         Among 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.]

         Sheppard 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.[1] [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.]

         On 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]

         Prior 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.

         Sheppard timely appealed his sentence, arguing that it was both procedurally and substantively unreasonable.[2] [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 24. [Id.]

         On 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. 387]


         Sheppard's 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.

         To 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) (quotation mark ...

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