United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
STEPHEN N. LIMBAUGH, JR. UNITED STATES DISTRICT JUDGE
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.
STATEMENT OF FACTS
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.
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.
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.
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
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.
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.
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.
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.
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
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.
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.
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.
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
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.
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