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Simmons v. United States

United States District Court, E.D. Missouri, Southeastern Division

October 13, 2016

BRADY O. SIMMONS, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM AND ORDER

          STEPHEN N. LIMBAUGH, JR. UNITED STATES DISTRICT JUDGE

         This matter is before the Court on a motion under 28 U.S.C. § 2255 to vacate, set aside or correct sentence by Brady O. Simmons, a person in federal custody. On November 10, 2015, Simmons plead guilty before this Court to the offense of felon in possession of a firearm and, on February 11, 2016, this Court sentenced Simmons to the Bureau of Prisons for a term of 110 months, the mandatory minimum sentence. Simmons' § 2255 motion, which is based on several allegations of ineffective assistance of counsel, is fully briefed and ripe for disposition.

         I. FACTS

         A. INDICTMENT

         On August 20, 2015, Movant Brady O. Simmons (Simmons) was charged in a one count indictment of being a convicted felon in possession of a firearm, in violation of 18 U.S.C. § 922(g).

         B. PLEA AGREEMENT AND GUILTY PLEA

         On November 10, 2015, Simmons appeared with his attorney and pled guilty to being a convicted felon in possession of a firearm, as charged in the Indictment. Simmons executed a Plea Agreement with his counsel and the Government. (Doc. 31) The Plea Agreement noted that “[t]he defendant has been fully apprised by defense counsel of [his] rights concerning appeal and fully understands the right to appeal the sentence under Title 18 U.S.C. § 3742.” (Doc. 31, p. 8)

         In the Plea Agreement, Simmons also agreed “to waive all rights to contest the conviction or sentence in any post-conviction proceeding, including one pursuant to 28 U.S.C. § 2255, except for claims of prosecutorial misconduct or ineffective assistance of counsel.” Id. Simmons agreed that he was “fully satisfied with the representation received from defense counsel. The defendant has reviewed the government's evidence and discussed the government's case and all possible defenses and defense witnesses with defense counsel. Defense counsel has completely and satisfactorily explored all areas which the defendant has requested relative to the government's case and any defenses.” Id. at p. 11.

         C. THE PRESENTENCE REPORT

         The Presentence Report (PSR) provided that Simmons' Base Offense Level was 24. (PSR ¶ 22) As a Special Offense Characteristic, Simmons was subject to a four level enhancement for using or possessing any firearm or ammunition in connection with another felony offense, for committing property damage, pursuant to USSG §2K2.1(b)(6)(B). (PSR ¶ 23) Prior to officers seizing the shotgun, Simmons had shot into a residence with the shotgun. (PSR ¶¶ 11-14) Simmons committed felony property damage by shooting into a residence. Mo. Rev. Stat. § 569.100. Shooting a firearm into a dwelling house is also a Class D felony under Missouri law. Mo. Rev. Stat. § 571.030. A three level reduction for acceptance of responsibility brought his total offense level to a 25. (PSR &&29-31) Simmons' criminal history was extensive. His total criminal history score was 13, which established a criminal history category of VI. (PSR &46). Based on a total offense level of 25 and a criminal history category of VI, Simmons' guideline imprisonment range was 110 months to 137 months. (PSR ¶83)

         D. THE SENTENCING HEARING

         On February 11, 2016, Simmons was sentenced to 110 months, which was at the low end of the guideline range. (Doc. 39)

         E. DIRECT APPEAL

         Simmons did not file an appeal of his conviction or sentence. Instead his counsel filed a notice indicating Simmons had not requested his counsel file a notice of appeal. (Doc. 41) Simmons' signature followed the statement by his counsel, that “Defense counsel has explained to defendant his/her right to appeal and defendant has not requested that counsel file a Notice of Appeal.” Id. Both Simmons and his counsel signed the Notice on February 11, 2016.

         F. MOTION FOR POST-CONVICTION RELIEF PURSUANT TO 28 ...


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