United States District Court, E.D. Kentucky, Central Division, Lexington
MEMORANDUM OPINION & ORDER
M. Hood Senior U.S. District Judge.
matter is before the Court on the Report and Recommendation
of Magistrate Judge Hanly A. Ingram. [DE 42]. Federal
prisoner Kevin James Moses, proceeding pro se, filed a motion
pursuant to 28 U.S.C. § 2255 to vacate, set aside, or
correct sentence by a person in federal custody. [DE 39]. A
Magistrate Judge Hanly A. Ingram conducted a preliminary
review of Moses's claims and recommended that Moses's
motion be dismissed upon initial review. [DE 42].
considered the matter de novo, the Court adopts Magistrate
Judge Ingram's recommendation as its own because the
four-level sentencing enhancement pursuant to U.S.S.G. §
2K2.1(b)(6)(B) was properly applied in this case and Moses
has failed to demonstrate that his counsel was ineffective or
that his guilty plea was not entered knowingly and
Procedural and Factual Background
does not object to the factual and procedural background
outlined in Magistrate Judge Ingram's recommendation.
Standard of Review
prevail on a motion under § 2255, a [petitioner] must
prove ‘(1) an error of constitutional magnitude; (2) a
sentence imposed outside the statutory limits; or (3) an
error of fact or law that was so fundamental as to render the
entire proceeding invalid.'” Goward v. United
States, 569 Fed.Appx. 408, 412 (6th Cir. 2014) (quoting
McPhearson v. United States, 675 F.3d 553, 559 (6th
habeas petitioner may object to a magistrate judge's
report and recommendation. Fed.R.Civ.P. 72(b)(2). If the
petitioner objects, “The district judge must determine
de novo any part of the magistrate judge's disposition
that has been properly objected to.” Fed.R.Civ.P.
72(b)(3); see also 28 U.S.C. § 636(b)(1).
“Only those specific objections to the magistrate's
report made to the district court will be preserved for
appellate review.” Carson v. Hudson, 421
Fed.Appx. 560, 563 (6th Cir. 2011) (quoting Souter v.
Jones, 395 F.3d 577, 585-86 (6th Cir. 2005)).
August 28, 2017, Moses pleaded guilty to possession with
intent to distribute cocaine and possession of a firearm by a
convicted felon. [DE 24; DE 27]. Here, Moses presents two
interrelated grounds for habeas relief. First, Moses claims
that counsel was ineffective for failing to object to the
firearm enhancement. Second, Moses argues that his plea was
not knowing and voluntary and that counsel was ineffective
for advising him to accept a plea agreement containing the
Moses acknowledges that “[t]his case turns on whether
the four-level enhancement prescribed by U.S.S.G. §
2K2.1(b)(6)(B) applies[.]” [DE 39-3 at 9, Page ID #
150]. In sum, because the 2K2.1(b)(6)(B) enhancement does
apply to this case, Moses's counsel was not ineffective
and his plea was knowing and voluntary.
Application of the Firearm-in-Connection Enhancement
United States Sentencing Guidelines provide for a four-level
sentencing enhancement where “the defendant . . . used
or possessed any firearm or ammunition in connection with
another felony offense; or possessed or transferred any
firearm or ammunition with knowledge, intent, or reason to
believe that it would be used or possessed in connection with
another felony offense[.]” U.S.S.G. §
notes that accompany the Sentencing Guidelines state that the
firearm-in-connection enhancement “appl[ies] if the
firearm or ammunition facilitated, or had the potential of
facilitating, another felony offense or another
offense.” U.S.S.G. § 2K2.1(b)(6)(B), application
note 14(A). A review of the facts indicates that the handgun
in the residence ...