United States District Court, E.D. Kentucky, Southern Division
REPORT AND RECOMMENDATION
CANDACE J. SMITH UNITED STATES MAGISTRATE JUDGE
matter is before the Court on Motion Under 28 U.S.C. §
2255 to Vacate, Set Aside or Correct Sentence by a Person in
Federal Custody (R. 61) filed by Defendant Roy Dean Pratt.
The United States has filed its Response (R. 67) and
Defendant has filed his Reply. (R. 69). Having all relevant
documents before the Court, this matter is now ripe for
consideration and preparation of a Report and Recommendation
pursuant to 28 U.S.C. § 636(b). For the reasons set
forth below, it will be recommended that
Defendant's § 2255 Motion (R. 61) be
April 1, 2015, the Kentucky State Police were informed a
large number of people had been observed visiting the
Hindman, Kentucky residence of Sandra Dyer, Defendant's
girlfriend. (R. 41 at 3, ¶ 3). In response, the State
Police began surveilling the home, during which they observed
and videotaped a suspected drug transaction. (Id.).
On April 7, 2015, the State Police executed a search warrant
at the residence and located eight firearms. (Id. at
3-5, ¶¶ 1, 4-5). In its decision rendered on
Defendant's direct appeal, the Sixth Circuit described
the circumstances as follows:
Pratt answered when the officers arrived at the back door.
His girlfriend, Sandra Dyer, was also inside. Upon searching
the bedroom to the right of the back door, the officers
discovered a large gray, opened safe containing six
firearms---four Henry rifles, a Rossi rifle, and a Remington
shotgun---as well as ammunition. They also found a 12-gauge
shotgun leaning up against the outside of that safe. The
officers then spotted a small, brown or tan locked safe,
which contained a Hi-Point 9-millimeter pistol. All told, the
KSP seized eight fully functioning guns from that bedroom.
Nearby, Pratt spoke with some of the officers. Although his
ID listed his residence elsewhere, Pratt told the police that
he had lived at the home with Dyer for “anywhere
between five and six years.” He also explained that he
and Dyer kept the loaded 12-gauge shotgun sitting beside the
bed “for protection.” He further described
several of the other guns in the bedroom in detail, including
their caliber and make. Finally, he mentioned that he and
Dyer were holding the Hi-Point 9-millimeter pistol in the
small brown or tan safe for a man named Jarrod Williams.
(R. 55 at 1-2); United States v. Pratt, 704
Fed.Appx. 420 (6th Cir. 2017).
to the date the search warrant was executed, Pratt had been
convicted of multiple felonies, including trafficking in a
controlled substance and facilitation to commit robbery. (R.
41 at 3, 8-9, 12, ¶¶ 1, 37-39, 49; see R.
13). On September 10, 2015, a federal grand jury returned an
Indictment in the case at bar, charging Pratt with one count
of being a felon in possession of firearms, in violation of
18 U.S.C. § 922(g)(1). (R. 1). On September 25, 2015,
Pratt appeared for an initial appearance and arraignment on
the Indictment and entered a plea of not guilty. (R. 8). Jury
trial in the case began on November 30, 2015 and concluded on
December 2, 2015. (R. 26; R. 27; R. 28). The jury found
Defendant guilty of being in possession of a firearm after
having been previously convicted of a felony offense. (R.
Defendant's trial and prior to his sentencing hearing,
the Probation Office prepared a Presentence Investigation
Report (“PSIR”). (R. 41). The PSIR contained an
extensive analysis of Defendant's background, including
his criminal history. The PSIR also reflected that in light
of being convicted of violating 18 U.S.C. § 922(g)(1),
and in light of having three prior convictions for a violent
felony or serious drug offense, Defendant qualified as an
armed career criminal subject to the statutory ACCA
enhancement of a minimum mandatory term of imprisonment of 15
years and maximum term of life pursuant to 18 U.S.C. §
924(e). (R. 41 at 6, ¶ 28; at 25, ¶ 97).
Probation Officer also determined Pratt's sentencing
range under the United States Sentencing Guidelines
(“U.S.S.G.”) (R. 41 at 6, ¶¶ 21-30),
after calculating his total offense level and his criminal
history category (R. 41 at 14, ¶¶ 51-53). Initially
the Probation Officer calculated an adjusted offense level of
32 (id. at 6, ¶ 27) given a base offense level
of 24 pursuant to § 2K2.1(a)(2) (id. at 6,
¶ 21), increased by 4 levels per § 2K2.1(b)(1)(B)
for having eight firearms (id. at 6, ¶ 22) and
increased by another 4 levels per § 2K2.1(b)(6)(B) for
possessing the firearms in connection with the felony offense
of suboxone trafficking (id. at 6, ¶ 23). But
while an adjusted offense level of 32 was calculated, the
PSIR goes on to note that, in Pratt's circumstances, the
armed career criminal guideline § 4B1.4 applied,
specifically § 4B1.4(b)(3)(A) for possessing firearms in
connection with the controlled substance offense of suboxone
trafficking, thereby resulting instead in an offense level of
34 (id. at 6, ¶ 28) as well as a criminal
history category of VI pursuant to § 4B1.4(c)(2)
(id. at 14, ¶ 53). This total offense level of
34 and category VI criminal history resulted in a Sentencing
Guidelines range of 262 to 327 months. (Id. at 25,
through counsel, submitted Objections to the PSIR.
(Id. at 32-33). Among them, counsel objected to
application of § 2K2.1(b)(6)(B), the 4 level increase
for possessing the firearms in connection with the felony
offense of suboxone trafficking,  and § 4B1.4(c)(2), the
criminal history category VI assessed under the armed career
criminal guideline again for possessing the firearms in
connection with a controlled substance offense. Defense
counsel argued that because Pratt was not charged with a
controlled substance offense, nor was “a firearm [ ]
used in connection” with drug trafficking (R. 41 at
33), the 4 level increase to his base offense level was not
appropriate and his criminal history category should have
been calculated as V, per his criminal history score of 12
(R. 41 at 14, ¶ 52; at 33). In Defendant's
Memorandum filed prior to sentencing, counsel also argued
that U.S.S.G. § 4B1.4(b)(3)(A), which placed Pratt's
offense level at ¶ 34, was inapplicable to Pratt's
calculations under the Sentencing Guidelines. (R. 35).
Instead, counsel argued § 4B1.4(b)(3)(B) should be used
and would place Pratt's offense level at ¶ 33.
(Id.). Finally, counsel argued in the sentencing
memorandum that Pratt's criminal history category should
be IV pursuant to § 4B1.4(c)(3) and that, with a 33
offense level and category IV criminal history, the
sentencing range for the Court's consideration would have
been 188 to 235 months.
March 3, 2016, Pratt appeared with counsel for sentencing.
(R. 37). Counsel argued Pratt's position with respect to
the Sentencing Guidelines calculations, and the Court
overruled the Objections. (R. 46, at 9-17). The Court also
found that Defendant had four qualifying convictions to
support Pratt's classification as an armed career
criminal under 18 U.S.C. § 924(e). (Id. at 4-5;
see R. 41 at 7-8, 12, ¶¶ 37-39, 49).
Specifically, the Court found Pratt had three trafficking in
a controlled substance first degree convictions, and a
facilitation to commit robbery first degree conviction, which
qualified Pratt for the statutory enhancement of the ACCA.
(R. 46 at 4-5; see R. 41 at 7-8, 12, ¶¶
37-39, 49). The Court found U.S.S.G. §§
4B1.4(b)(3)(A) and (c)(2) to be applicable in calculating
Pratt's Guidelines range and, with an offense level of 34
and criminal history category VI (R. 46 at 17-18), his
resulting Sentencing Guidelines range was 262 to 327 months.
(Id. at 19). The Court considered the sentencing
factors of 18 U.S.C. § 3553 and sentenced Pratt to 320
months in prison followed by a 3-year term of supervised
release. (Id. at 34).
appealed and the Sixth Circuit affirmed the conviction and
sentence on July 26, 2017. See United States v.
Pratt, 704 Fed.Appx. 420 (6th Cir. 2017); (See
R. 55). There is no evidence Defendant petitioned for writ of
certiorari. On September 14, 2018, Pratt filed the pending
§ 2255 Motion. (R. 61). In his Motion, Pratt challenges
the application of the ACCA statutory enhancement and his
Sentencing Guideline calculations. (R. 61 at 3; R. 61-1 at
6-8). Pratt also alleges several ineffective assistance of
counsel claims. (R. 61 at 3; see R. 61-1).
Specifically, Pratt asserts the following claims of
ineffective assistance of counsel: 1) counsel failed to
investigate relevant evidence and the charges brought against
him during the pretrial phase; 2) during trial, counsel
failed to object, request to strike, or confer with him
regarding trial strategy; refused to allow a witness with
exonerating evidence to testify at trial; and withheld a
sworn affidavit from the jury that would have changed the
outcome of the trial; and 3) counsel failed to object to the
application of the ACCA statutory enhancement at sentencing
and the use of certain Sentencing Guidelines to calculate his
Guidelines range. (R. 61-1 at 3-6; see R. 69 at 2).
Non-ineffective assistance of counsel claims
first ground for relief in his § 2255 Motion challenges
the application of the ACCA statutory sentence enhancement
and his Sentencing Guidelines calculations. (R. 61 at 3; R.
61-1 at 6-7). In his Motion, Pratt contends that three of the
convictions used to qualify him for sentencing under the ACCA
should have been treated as one qualifying conviction
pursuant to U.S.S.G. § 4A1.2(a)(2) and, thus, he did not
have the requisite three qualifying convictions as required
to apply the enhanced penalty. (R. 61-1 at 6). Pratt also
argues those prior drug convictions are not predicate
offenses under the ACCA because he was sentenced to probation
rather than incarceration. (Id.). They should also
be excluded, argues Pratt, because the convictions were
expunged upon completion of probation. (Id. at 6-7).
Finally, Pratt maintains that because “he was not
convicted, or even charged with a drug trafficking
offense” during the course of this case, certain
subsections of the armed career criminal section of the
Sentencing Guidelines, § 4B1.4, were mistakenly used to
calculate his Sentencing Guidelines range. (Id. at
Claims appealed to the Sixth Circuit may not be
to filing his current § 2255 Motion, Pratt filed an
appeal to the Sixth Circuit challenging the application of
the ACCA statutory enhancement to his sentence and his
Sentencing Guidelines calculations. Pratt, 704
Fed.Appx. at 427-29; (See R. 55). On direct appeal,
he argued that his three prior drug convictions no longer
qualified as predicate offenses under the ACCA because the
statute he was convicted under was revised after his
convictions, and, as a result, the state convictions no
longer fit the definition of “serious drug
offense” under the ACCA statutory enhancement.
Pratt, 704 Fed.Appx. at 428; see 18 U.S.C.
§ 924(e)(2)(A)(ii); (R. 55 at 12-13).
the Sentencing Guidelines, Pratt contested the calculation of
his offense level and criminal history category using
U.S.S.G. § 4B1.4(b)(3)(A) and (c)(2), which increased
his offense level to 34 and his criminal history category to
VI. Pratt, 704 Fed.Appx. at 429; (R. 55 at 14). He
argued that because “‘there is no evidence
whatsoever that [he] actually used a firearm in connection
with a drug offense” and he was never indicted for a
controlled substance offense during this matter, these
sections of the Guidelines do not apply to him. The Sixth
Circuit, however, rejected these arguments and affirmed
Pratt's conviction and sentence. Pratt, 704
Fed.Appx. at 428-29; (R. 55 at 13-15).
§ 2255 Motion, Pratt has made this same argument that he
was not indicted for nor convicted of drug trafficking in
conjunction with this firearms offense. However, this ground
was raised on direct appeal, and the Sixth Circuit held this
claim was without merit. Pratt, 704 Fed.Appx. at
429; (R. 55 at 14-15). A § 2255 motion may not be used
to relitigate an issue that has already been raised and
considered on direct appeal absent highly exceptional
circumstances, such as intervening change in law. Wright
v. United States, 182 F.3d 458, 467 (6th Cir. 1999);
Jones v. United States, 178 F.3d 790, 796 (6th Cir.
1999). Pratt has not cited any relevant change in law, nor
has he indicated any other highly exceptional circumstances
as to why this Court on collateral review should entertain
these contentions which were already determined by the Sixth
Circuit. Thus, review by this Court of this argument is
barred. See Myers v. United States, 198 F.3d 615,
619-20 (6th Cir. 1999).
Pratt's remaining non-ineffective assistance claims lack
Pratt's argument that his three qualifying serious drug
offenses should be treated as one qualifying offense for ACCA
statutory enhancement purposes pursuant to U.S.S.G. §
4A1.2 is without merit.
Pratt alleges that three of the serious drug offense
convictions used to classify him as an armed career criminal
under the ACCA should have been treated as one qualifying
conviction pursuant to U.S.S.G. § 4A1.2(a)(2), and,
therefore, he did not have the three qualifying convictions
required under 18 U.S.C. § 924(e). (See R. 61-1 at 6).
It appears, however, that Pratt has confused the way in which
a defendant's criminal history is calculated under the
Sentencing Guidelines with the question of whether a
defendant qualifies for the ACCA statutory enhancement of 18
U.S.C. § 924(e). The ACCA provides a mandatory minimum
sentence of fifteen years for a defendant convicted of
violating 18 U.S.C. § 922(g) who has three prior
convictions for “a violent felony or serious drug
offense, or both, committed on occasions different from
one another . . . .” 18 U.S.C. § 924(e)(1)
does not challenge the recitation of facts set forth in his
PSIR or prior Notice by the United States Regarding Enhanced
Statutory Punishment. (See R. 41; R. 13). A review of these
documents describes Pratt's prior convictions, which were
identified by the Court as qualifying convictions, as
1. On March 12, 2002, [Pratt] was convicted in the Knott
Circuit Court, Kentucky, in Case Number 00-CR-37 of
Trafficking in a Controlled Substance First Degree, ...