United States District Court, W.D. Kentucky, Louisville
JEROME D. WARREN PETITIONER/DEFENDANT
UNITED STATES OF AMERICA RESPONDENT/PLAINTIFF
CHARLES R. SIMPSON III, SENIOR JUDGE UNITED STATES DISTRICT
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.
Magistrate Judge's Findings of Fact
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.
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); (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.
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.
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.
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). Because burglary
no longer constituted a ‘crime of violence,'
Warren's base offense level was reduced from 24 to 14.
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.
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.
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
Magistrate Judge's Conclusions of Law ...