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United States v. Moses

United States District Court, E.D. Kentucky, Central Division, Lexington

November 14, 2018

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
KEVIN JAMES MOSES, Defendant/Petitioner.

          MEMORANDUM OPINION & ORDER

          Joseph M. Hood Senior U.S. District Judge.

         This 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].

         Having 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 voluntarily.

         I. Procedural and Factual Background

         Moses does not object to the factual and procedural background outlined in Magistrate Judge Ingram's recommendation.

         II. Standard of Review

         “To 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 Cir. 2012)).

         A 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)).

         III. Analysis

         On 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 enhancement.

         Ultimately, 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.

         A. Application of the Firearm-in-Connection Enhancement

         The 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. § 2K2.1(b)(6)(B).

         Application 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 ...


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