United States District Court, E.D. Missouri, Southeastern Division
DENNIS L. WILLIAMS, Movant,
UNITED STATES OF AMERICA, Respondent,
MEMORANDUM AND ORDER
STEPHEN N. LIMBAUGH, JR. UNITED STATES DISTRICT JUDGE
matter is before the Court on the motion of Dennis Williams
to vacate, set aside, or correct sentence under 28 U.S.C.
§ 2255. The motion will be denied.
September 15, 2014, movant pled guilty to three counts of
distribution of cocaine base in violation of 21 U.S.C. §
841. At sentencing, his advisory Guideline range was
calculated to be 130-162 months' imprisonment. This Court
sentenced movant to 130 months' imprisonment. United
States v. Williams, No. 1:14-CR-67 SNLJ (E.D. Mo.).
Movant appealed his sentence to the Eighth Circuit Court of
Appeals asserting that this Court should have varied downward
from the Guidelines. See United States v. Williams,
No. 14-3895 (8th Cir. February 23, 2016). The
Eighth Circuit affirmed movant's conviction and sentence,
finding that the 130-month sentence was the bottom of the
Guideline range and was reasonable.
27, 2016, movant filed the present motion to vacate his
sentence, pursuant to 28 U.S.C. § 2255. In his motion to
vacate, movant first asserts that he is entitled to relief
under Johnson v. United States, 135 S.Ct. 2551
movant argues that his attorney was ineffective for: (1)
failing to properly object to the calculation of his criminal
history points in his sentencing; (2) failing to object to
the enhancement he received in the Guidelines related to his
possession of a firearm; and (3) advising movant to waive any
arguments to such an enhancement. Movant basis his
ineffective assistance arguments on the Supreme Court case of
Alleyne v. United States, 133 S.Ct. 2151 (2013).
undisputed that on December 12, 2011, movant sold 8.2 grams
of cocaine base to a confidential informant for the Federal
Drug Enforcement Agency (“DEA”). It is also
undisputed that on December 15, 2011, movant sold 27.7 grams
of cocaine base to a confidential informant for the DEA. And
it is also undisputed that on December 22, 2011, movant sold
32.7 grams of cocaine base to a confidential informant for
the DEA. These three instances make up the factual
circumstances for Counts I, II and III of the indictment in
movant's criminal case, to which movant pled guilty on
September 15, 2014. See United States v. Williams,
No. 1:14CR67 SNLJ (E.D.Mo.).
to the DEA, between December 7, 2011 and October 22, 2013, a
confidential informant was used to make numerous controlled
substance purchases from movant in Cape Girardeau County,
Missouri, most of which he was never charged with. During
this time period, movant distributed at least 219.2 grams of
cocaine base, 50.1 grams of cocaine and 7.5 grams of
methamphetamine. According to audio and video evidence
obtained from the confidential informant during a buy from
movant on February 24, 2012, movant was observed on that date
in possession of a high powered semi-automatic rifle and
semi-automatic handgun which he used to facilitate the
distribution of controlled substances. See
Presentence Report, Docket No. 51, United States v.
Williams, No. 1:14CR67 SNLJ (E.D.Mo.).
plea hearing, movant stated, under oath that he was satisfied
with the way his lawyer had handled his case. He also stated
that his lawyer had investigated the case to his
satisfaction, and his lawyer had done everything he had asked
him to do. Movant stated that it was his intention to give up
his right to trial at that time and plead guilty.
See Guilty Plea Transcript, Docket No. 69,
United States v. Williams, No. 1:14CR67 SNLJ
sentencing hearing, on December 15, 2014, the Court asked if
the parties wanted to address objections to the Presentence
Report (“PSR”). See Sentencing
Transcript, Docket No. 68, United States v.
Williams, No. 1:14CR67 SNLJ (E.D.Mo.). Counsel for
movant indicated that he wished to speak to the Court about a
two-level enhancement mentioned on the PSR under Specific
Offense Characteristics, pursuant to U.S.S.G. § 2D1.1.
(b)(1) for possession of a firearm during a drug transaction.
counsel noted that he had filed a written objection to the
proposed enhancement, but that the United States Attorney had
a video of movant with a gun in his possession during two of
the confidential informant's drug buys, and that defense
counsel did not wish to pursue the argument if it meant a
larger enhancement for movant for obstruction. The Court then
allowed defense counsel and movant a short recess to discuss
whether or not to pursue the objection on the record. When
defense counsel and movant came back on the record the
following conversation occurred under oath:
Mr. Skrien: Your Honor?
The Court: Yes.
Mr. Skrien: I spoke with my client and after some discussion
back and forth, it's his decision to withdraw the
previously filed objection.
The Court: Come on up.
Mr. Skrien: So we would so move at this time.
The Court: Mr. Williams, your lawyer has filed objections to
the presentence report regarding the information that in
paragraphs, several paragraphs that indicate that you
possessed a firearm during the commission of the drug
offenses, and he says ...