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Warren v. United States

United States District Court, W.D. Kentucky, Louisville

July 26, 2018

JEROME D. WARREN PETITIONER/DEFENDANT
v.
UNITED STATES OF AMERICA RESPONDENT/PLAINTIFF

          MEMORANDUM OPINION

          CHARLES R. SIMPSON III, SENIOR JUDGE UNITED STATES DISTRICT COURT

         I. Introduction

         This matter was referred to the United States Magistrate Judge for Findings of Fact, Conclusions of Law, and Recommendation (“the report”) (ECF No. 89) following petitioner Jerome D. Warren's (“Warren”) motion to vacate his sentence pursuant to 28 U.S.C. § 2255. ECF No. 71. Warren now objects to the report. ECF No. 90. For the reasons set forth below, the court will sustain Warren's objections and grant his motion to vacate.

         II. Magistrate Judge's Findings of Fact

         Warren did not object to any of the magistrate judge's factual findings. “When there is no objection, the court need not “review . . . a magistrate [judge's] factual or legal conclusions, under a de novo or any other standard . . .” Thomas v. Arn, 474 U.S. 140, 150 (1985). However, the court will provide a brief description of the facts giving rise to Warren's habeas petition for context.

         In June 2016, Warren entered a plea of guilty by plea agreement to one count of knowing possession of a stolen firearm in violation of 18 U.S.C. §§ 922(j) and 924(a)(2). ECF No. 53. In exchange, the United States agreed to: (1) move for dismissal of the original indictment charging Warren with one count of being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2) and 924(e);[1] (2) recommend a sentence and fine at the lowest end of the applicable sentencing guideline range; and (3) recommend a three-level reduction in the sentencing calculation for acceptance of responsibility.

         Paragraph 11 of the plea agreement presented the parties' joint calculation of Warren's offense level for purposes of sentencing. Due to Warren's two prior second-degree burglary convictions-which constituted a crime of violence under the guidelines-his base offense level was calculated at 24. U.S.S.G. § 2K2.1(a)(2). A 2-level increase applied because the firearm Warren possessed was stolen. U.S.S.G. § 2K2.1(b)(4). Additionally, a 4-level increase applied because the firearm was stolen in connection with another felony. U.S.S.G. § 2K2.1(b)(6)(B). Finally, a 3-level reduction applied for acceptance of responsibility. U.S.S.G. § 3E1.1. This resulted in a total offense level of 27.

         Paragraph 15 of the plea agreement stated the following:

Defendant agrees that the disposition provided for within the Agreement is fair, taking into account all aggravating and mitigating factors. Defendant states that he has informed the United States Attorney's Office and the Probation Officer, either directly or through his attorney, of all mitigating factors. Defendant will not oppose imposition of a sentence incorporating the disposition provided for within this Agreement, nor argue for any other sentence. If Defendant argues for any other sentence other than the one to which he has agreed, he is in breach of this Agreement. Defendant agrees that the remedy for this breach is that the United States is relieved of its obligations under this Agreement, the Defendant may not withdraw his guilty plea because of his breach.

         On August 1, 2016-after Warren entered his plea but before he was sentenced-the U.S. Sentencing Commission issued Amendment 798 to the 2015 edition of the U.S. Sentencing Guidelines Manual. This amendment deleted burglary from the enumerated offense list under the ‘crime of violence' provision of U.S.S.G. § 4B1.2(a).[2] Because burglary no longer constituted a ‘crime of violence,' Warren's base offense level was reduced from 24 to 14.

         Although the amended sentencing guidelines went into effect over a month before Warren was sentenced, neither the preliminary pre-sentence investigation report nor the final pre-sentence report reflected this change. Thus, Warren's total offense level remained at 27. When combined with his level VI criminal history category, Warren's recommended sentencing guideline range was 130 to 162 months.

         At the sentencing hearing on September 26, 2016, Warren's attorney accepted the calculations in the final pre-sentence report without objection. Although the sentencing guideline range was 130 to 162 months, the statutory maximum for possession of a stolen firearm is 10 years, or 120 months. This court granted the United States' motion to dismiss the original indictment, and sentenced Warren to 120 months.

         Warren now challenges his 120-month sentence based on ineffective assistance of counsel. Specifically, Warren alleges that his attorney's performance was deficient because he failed to argue for the application of the amended sentencing guidelines, which would have resulted in a 10-level reduction in his total offense level and a recommended sentencing guideline range of 51 to 63 months, rather than 130 to 162 months.

         III. Magistrate Judge's Conclusions of Law ...


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