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Neill v. United States

United States Court of Appeals, Sixth Circuit

September 5, 2019

Timothy James Neill, Jr., Petitioner-Appellant,
v.
United States of America, Respondent-Appellee.

          Appeal from the United States District Court for the Middle District of Tennessee at Cookeville. Nos. 2:11-cr-00001-5; 2:14-cv-00013-Waverly D. Crenshaw, Jr., District Judge.

         ON BRIEF:

          Michael C. Holley, FEDERAL PUBLIC DEFENDER, Nashville, Tennessee, for Appellant.

          Cecil W.VanDevender, UNITED STATES ATTORNEY'S OFFICE, Nashville, Tennessee, for Appellee.

          Before: DONALD, LARSEN, and NALBANDIAN, Circuit Judges

          OPINION

          BERNICE BOUIE DONALD, CIRCUIT JUDGE.

         In 2011, Timothy Neill, Jr. ("Neill") pleaded guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). He was sentenced to ninety-two months imprisonment, and on advice of counsel, he decided not to pursue an appeal. Neill subsequently filed a motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255, arguing, among other things, that he had received ineffective assistance of counsel in regard to his appellate strategy. The district court denied his § 2255 motion and, later, denied a motion for reconsideration of his ineffective assistance of counsel claim. After denying the motion for reconsideration, however, the district court issued a certificate of appealability because reasonable jurists could disagree with its disposition of Neill's claim for ineffective assistance. For the following reasons, we AFFIRM.

         I.

         Neill has a lengthy criminal record, including multiple felonies. In 2010, he was on parole with the state of Tennessee, and in June of that year, he was photographed holding a semiautomatic rifle. As part of a federal investigation into gun trafficking, authorities discovered the photograph. On January 20, 2011, the state of Tennessee revoked his parole and took him into custody, imposing a sentence of more than forty-two months for the violation.

         On March 2, 2011, based on the same photograph, he was indicted by federal agents for being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). Soon thereafter, he was transferred to federal custody and pleaded guilty on September 12, 2011. His sentencing was delayed for reasons that are not pertinent here, but he was eventually scheduled to be sentenced on January 11, 2013, approximately twenty-two months later. During the intervening period, he was transferred back to state custody for nine months so that he could "earn behavioral and program credits, which [could] shorten the length [of his sentence]." Thus, he spent thirteen months in federal custody prior to being sentenced.

         In preparation for Neill's federal sentencing, the probation office prepared a Presentence Investigation Report ("PSR"). According to the PSR, Neill had twenty-two criminal history points, establishing a criminal history category of VI, the highest category in the Sentencing Guidelines. His base offense level was twenty-three, which led to a Guidelines sentence range of 92 to 115 months.

         During his sentencing hearing, defense counsel Benjamin Perry lodged numerous objections, all of which were overruled. The district court adopted the recommended findings in the PSR and sentenced Neill to ninety-two months imprisonment, to run consecutive to his state sentence for the parole violation.

         Notably, in imposing the sentence, the judge stated,

As to the sentence in this case, given the dangerousness of the underlying conduct and the Criminal History Category VI, which is as high as you can get, the Court will be inclined to sentence toward the high end of the guideline, but the Court takes into account your efforts to change, your concerns about your daughter which [have] changed [you] a bit.
The Court also wants to remind you that if you continue to do as you are currently that you will likely receive 54 days of good time credits, which will take off more than 14 months of your sentence which would be [an] effective federal sentence of about 76 or 78 months. You will get credit for the time you have been in custody so you will get an additional reduction on that. So considering the net effect of the sentence imposed by the Court, I don't believe the sentence is greater than necessary.

         Neill contends the court's statement was in error because the court assumed he would receive credit against his federal sentence for the time he spent in federal custody prior to being sentenced. However, because Neill received credit on his state sentence for those thirteen months, he could not receive credit on his federal sentence as well. See 18 U.S.C. ยง 3585(b). Thus, Neill's position is that the court intended to sentence him to ninety-two months minus the thirteen months he had already spent in federal ...


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