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Bassett v. United States

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

October 13, 2016

RAY BASSETT, Petitioner,
v.
UNITED STATES OF AMERICA, Defendant.

          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 Ray Bassett, a person in federal custody. On February 28, 2013, Jackson was found guilty by a jury of the offenses of conspiracy to commit bank robbery, possession of a firearm in furtherance of a crime of violence and felon in possession of a firearmof being a felon in possession of a firearm and, on July 12, 2013, this Court sentenced Bassett to the Bureau of Prisons for a term of 138 months, a sentence within the sentencing guideline range. Bassett's § 2255 action, which is based on several allegations of ineffective assistance of counsel, is fully briefed and ripe for disposition.

         I. STATEMENT OF FACTS

         On the evening of October 31, 2011, Otis McAllister (“Otis”) sent an email to FBI Special Agent Larry Skora. Otis told Skora he was serving a 37-year sentence in federal prison for bank robbery and firearms convictions. Otis stated that his cousins, Petitioner Ray Bassett and Willie Bassett (“Willie”), were involved in past bank robberies, but were not charged. According to Otis, his cousins Willie and Petitioner continued to commit crimes and had asked Otis to connect them to a bank employee who could help them rob a bank. Otis offered to divulge the specifics of the bank robbery to the FBI agent and to testify if the Government would file a Rule 35 motion to reduce Otis's sentence. Otis stated that the bank robbery was planned for November 4, 2011, just five days from the date of his email.

         On the evening of November 1, 2011, Agent Skora responded to Otis's email. He indicated that he had contacted the U.S. Attorney's Office in St. Louis, but had not heard back. Agent Skora stated the FBI would contact Otis in the near future and thanked Otis for his cooperation.

         On November 3, 2011, FBI agents began reviewing Otis's recorded prison phone calls. They overheard, among other things, that: Otis's cousins Petitioner and Willie were involved in Otis's previous bank robberies, but served no time; Otis and his nephew, Anthony McAllister (“Anthony”), agreed to set up Petitioner and Willie to plan a bank robbery, and tip off the FBI; Otis asked Anthony to contact Petitioner and Willie, and Anthony did so; Anthony obtained Petitioner's phone number and provided it to Otis; Otis and Anthony agreed that the target bank would be the Pulaski Bank at 11550 New Halls Ferry Road; Otis and Anthony set the bank robbery for November 4, 2011; Anthony told Otis that Petitioner and Willie drove to St. Louis in a rented Nissan Cube automobile; Anthony informed Otis that he drove Petitioner and Willie by the Polaski bank; Otis told Petitioner and Willie that they needed to plan what to do with bank robbery proceeds; they discussed dividing up the proceeds; and Willie and Ray confirmed to Otis that they had seen the target bank.

         On November 3, 2011, FBI Special Agent Bryan Yingling interviewed Otis on the telephone. Otis told the agent that his cousins Petitioner and Willie robbed banks with Otis but got away with it. Otis demanded a Rule 35 motion in exchange for divulging the details of a bank robbery that Petitioner and Willie planned to commit the next morning, November 4, 2011, at 6:30 a.m. Agent Yingling did not promise Otis any consideration for his information. Instead, Agent Yingling responded that time was running out to do anything about the bank robbery.

         Otis then admitted, among other things: Petitioner and Willie drove from Memphis, Tennessee, to St. Louis, Missouri, on Tuesday, November 1, 2011, to rob the Pulaski Bank on Friday, November 4, 2011; Anthony was also involved in the plot; Otis communicated with Petitioner and Willie by telephone; Otis chose the Pulaski Bank on New Halls Ferry Road; Otis had “cased” the bank before his incarceration and told Petitioner and Willie it would be a good bank to rob; Otis told Petitioner and Willie that two female bank employees would be working with them on an “inside job”; when one of the bank employees arrived at the bank, Petitioner and Willie would force her to open the bank; Petitioner and Willie planned to use guns; Otis made up the female bank employees and the “inside job” to lure Petitioner and Willie into the bank robbery; Petitioner and Willie planned to rob the bank on November 4, 2011, because Otis told them there would be $5, 000, 000 inside the bank; they planned to split the bank robbery proceeds among the female bank employee, Otis, Petitioner and Willie; Petitioner and Willie cased the bank after arriving in St. Louis; Petitioner and Willie planned to wear dark clothing, and caps, masks or wigs; Petitioner rented a gray Nissan Cube in Memphis to use in the bank robbery; and Petitioner and Willie stayed at Anthony's house at 10338 Lilac Avenue after arriving in St. Louis.

         In a second telephone interview on the night of November 3, 2011, Otis stated he had just talked to Anthony. Otis confirmed that Anthony took Petitioner and Willie to case the bank, the bank robbery would occur before 7:00 a.m., and Petitioner had a firearm and would probably carry it in his waistband.

         Based on the investigation, FBI agents obtained a federal search warrant for 10338 Lilac Avenue and the Nissan Cube. The agents executed the search warrant on the early morning of Friday, November 4, 2011, just hours before the bank robbery was to be committed.

         The agents found Petitioner, Willie and Anthony inside the residence. A search of Anthony's bedroom revealed, among other things: a Smith & Wesson .22 caliber semi-automatic pistol, a magazine, ammunition, dark colored clothing, and a roll of duct tape contained in a blue duffel bag and a black and blue backpack. In the living room, agents found, among other things, latex gloves and dark colored clothing in a red duffel bag. Next to the duffel bag, the agents recovered a black knit cap and a dark hat. Inside the Nissan Cube parked in front of the house, the agents found, among other things, dark sunglasses and various bags.

         The FBI agents arrested Petitioner, Willie and Anthony and transported them to the St. Louis FBI office, where they were interviewed. Petitioner executed an advice of rights form, waived his Miranda rights, and admitted, among other things: His cousin, Otis, is in prison for bank robberies; Petitioner committed a bank robbery with Otis in 2000; a few weeks earlier, Otis called Petitioner about planning a bank robbery and told Petitioner to contact Anthony; Petitioner asked his brother, Willie, to participate in the bank robbery and Willie agreed; Otis told petitioner the bank robbery would be an “inside job, ” with a female bank employee involved; Otis told Petitioner the female bank employee would have a co-worker with her who was not part of the plan; Otis told petitioner that Pulaski Bank would be the target bank, and would contain $500, 000; they discussed how they would split the bank robbery proceeds; Petitioner arranged for his sister to rent the Nissan Cube in Memphis; Petitioner and Willie drove to St. Louis on November 1, 2011, in the Nissan Cube; Anthony drove Petitioner and Willie past the bank on November 1, to point it out; Willie and Anthony drove by the bank on November 2; Willie and Petitioner went to the bank lot on the morning of November 3; the .22 caliber pistol belonged to Petitioner, who bought it in Memphis for $60 about one month earlier; Petitioner brought the pistol to St. Louis and kept it in the blue bag recovered from the bedroom; Petitioner had a dark hoodie in the bag with the pistol; Petitioner was going to wear the recovered sunglasses during the bank robbery; Willie brought latex gloves in a red duffel bag; Anthony gave Petitioner a black bag to carry the bank proceeds; Petitioner brought the duct tape to tie up the bank employees; Petitioner and Willie planned to arrive at the bank at about 7:00 a.m. on November 4; Willie would approach the “inside” bank employee and Petitioner would grab the co-worker; Petitioner would display the pistol and force the bank employees into the bank; Petitioner and Willie planned to leave Otis's share of the bank robbery proceeds at Anthony's house and depart for Memphis right away; and Anthony told Petitioner that the bank robbery could be a set up, but Petitioner and Willie intended to go forward anyway.

         II. PROCEDURAL HISTORY

         As a result of the above facts, Petitioner was indicted by a federal grand jury on November 16, 2011, along with co-defendants Anthony McAllister and Willie Bassett. United States v. Ray Bassett, et al., Cause No. 4:11R0481 (SNLJ). The indictment charged Ray Bassett and Willie Bassett in Count I with conspiring to commit a bank robbery. In Count II, Petitioner and Willie Bassett were charged with attempted bank robbery. Count III charged Petitioner with possessing a firearm in furtherance of a crime of violence under 18 U.S.C. § 924(c)(1). In Count IV, Petitioner was charged with being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Count V was not directed against Petitioner. District Court Docket (“DCD”) 14, 15.

         The grand jury returned a superseding indictment on May 2, 2012, adding Otis McAllister as a defendant and an additional count. The additional count, Count VI, was directed only against Otis. The charges in Counts I through IV against Petitioner remained unchanged. DCD 136.

         Petitioner and his co-defendants proceeded to trial before a jury on February 26, 2013. The jury returned its verdict on February 28, 2013, finding Petitioner guilty on the conspiracy charge (Count I) and the firearms charges (Counts III and IV), but not guilty on the attempted bank robbery charge (Count II). The jury also found Otis McAllister guilty on the charge of Solicitation to Commit a Crime of Violence. However, the jury found both Willie Bassett and Anthony McAllister not guilty on all charges. DCD 308.

         Following his conviction, the U.S. Probation Office prepared a Presentence Investigation Report (“PSR”). DCD 348. With respect to Count I, the PSR noted that Petitioner's Base Offense Level was 20 pursuant to U.S.S.G. § 2B3.1. PSR ¶ 22. To this, two levels were added under § 2B3.1(b)(1) as “the property of a financial institution was an object of the offense.” PSR ¶ 23. This resulted in an Adjusted Offense Level of 22. PSR ¶ 27. As for Count IV, Petitioner's Base Offense Level was 20. There were no adjustments, so his Adjusted Offense Level remained 20. PSR ¶¶ 28, 32. Taking the greater of the two Adjusted Offense Levels - here, 22 - two levels were added to that for a multiple count adjustment under § 3D1.2. PSR ¶¶ 21, 33-36. This resulted in a Total Offense Level of 24. PSR ¶ 39. As for Count III, this charge required a mandatory 60-month sentence consecutive to the sentence for Counts I and IV. PSR ¶ 40.

         The PSR also calculated Petitioner's criminal history, concluding that Petitioner had a criminal history score of five. This correlated to a Criminal History Category III. PSR ¶ 54. Based upon a Total Offense Level of 24 and a Criminal History Category of III, the recommended guideline imprisonment range was 63-78 months on Counts I and IV, plus a consecutive term of imprisonment of 60 months on Count III. PSR ¶ 88.

         Petitioner appeared before this Court for sentencing on July 12, 2013. The Court sentenced Petitioner to: (1) a 78-month term of imprisonment on Count I; (2) a 78-month term of imprisonment on Count IV, to run concurrently with Count I; and (3) a 60-month term of imprisonment on Count III, to run consecutively ...


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