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United States v. Pratt

United States District Court, E.D. Kentucky, Southern Division

January 18, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
ROY DEAN PRATT, Defendant.

          REPORT AND RECOMMENDATION

          CANDACE J. SMITH UNITED STATES MAGISTRATE JUDGE

         This 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 denied.

         I. PROCEDURAL BACKGROUND

         On 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).

         Prior 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. 32).

         Following 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).[1] (R. 41 at 6, ¶ 28; at 25, ¶ 97).

         The 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, ¶ 98).

         Defendant, 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, [2] 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.

         On 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).

         Pratt 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).

         II. ANALYSIS

         A. Non-ineffective assistance of counsel claims

         Pratt's first ground for relief in his § 2255 Motion challenges the application of the ACCA statutory sentence enhancement and his Sentencing Guidelines calculations.[3] (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 7).

         1. Claims appealed to the Sixth Circuit may not be relitigated.

         Prior 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).

         As for 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.[4] 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).

         In his § 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).

         2. Pratt's remaining non-ineffective assistance claims lack merit.[5]

         a. 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.

         First, 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) (emphasis added).

         Pratt 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 follows:

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, ...

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