United States District Court, W.D. Missouri, Western Division
DELMONTE M. WILSON, Movant,
UNITED STATES OF AMERICA, Respondent. Crim. No. 4:15-cr-0186-01-DGK
ORDER DENYING MOTION FOR POSTCONVICTION
KAYS, CHIEF JUDGE
Delmonte M. Wilson pled guilty without a plea agreement to
being a felon in possession of a firearm. Now before the
Court is his “Motion Under 28 U.S.C. § 2255 to
Vacate, Set Aside, or Correct Sentence By a Person in Federal
Custody” (Doc. 1) on the grounds of ineffective
assistance of counsel.
Movant's claim is without merit, the Court DENIES the
motion. The Court also declines to issue a certificate of
and Procedural History
6, 2015, a federal grand jury returned a one-count indictment
charging Movant with being a felon in possession of a
firearm, in violation of 18 U.S.C. § 922(g)(1) and
Court appointed Movant trial counsel. Trial counsel met with
Movant and explored with him his various options, including
the possibility of pleading guilty. She also explained the
sentencing guidelines to him. Trial counsel told Movant that
she estimated the sentencing guidelines would be between 33
and 41 months.
August 6, 2015, Movant pled guilty to the indictment without
an agreement in order to preserve his right to appeal and
seek a downward variance. During the change of plea hearing,
Movant testified under oath in open court. He testified that
he understood that everything he said must be truthful. He
stated he knew that the maximum punishment was ten years, and
that if he pled guilty he could be sentenced up to that
maximum. The Court explained how the advisory sentencing
guidelines worked, and Movant acknowledged the Court could
sentence him above or below the recommended range. Movant
also confirmed he was pleading guilty without a plea
agreement, and that no one had made any promises or
agreements to make him plead guilty.
December 15, 2015, Movant appeared before the Court for
sentencing. The presentence investigation report
(“PSR”) calculated Movant's base offense
level at 20 pursuant to § 2K2.1(a)(4) of the sentencing
guidelines because Movant committed the offense subsequent to
sustaining at least one felony conviction for a crime of
violence, namely two Missouri convictions for first-degree
robbery he received in 2004. After calculating various other
factors, the PSR determined Movant's total offense level
was 19 and his criminal history category was a 4, resulting
in an advisory sentencing range of 46 to 57 months. Counsel
for Movant did not object to the calculation, and the Court
granting allocution, the Court sentenced Movant to 55
months' imprisonment and a three-year term of supervised
appealed. Trial counsel represented Movant on appeal,
submitting a brief pursuant to Anders v. California,
386 U.S. 738 (1967). Among other claims, Movant asserted that
the district court erred in calculating the sentencing
guidelines by assessing six criminal history points for his
conviction on two counts of first degree robbery. The appeal
was unsuccessful. United States v. Wilson, 653 F.
App'x 857 (8th Cir. 2015).
pro se, Movant timely filed the pending § 2255
motion. On November 8, 2016, the Court sua sponte ordered the
Government to file a supplemental response addressing the
applicability of the Court of Appeal's decision in
United States v. Bell, 840 F.3d 963 (8th Cir. 2016)
(holding a prior Missouri conviction for second-degree
robbery is not a crime of violence under the sentencing
guidelines), to Movant's claim.
Court subsequently ordered an evidentiary hearing and
appointed an attorney to represent Movant.
hearing was held on June 29, 2017. At the hearing,
Movant's trial counsel testified that she made a mistake
in estimating Movant's sentencing guideline range because
she omitted a municipal conviction for assault that she did
not know existed. She explained she made her estimate before
she received the preliminary PSR which contained Movant's
complete criminal history. She further explained she did not
object to the guidelines calculation in the PSR because they
were accurate, and she did not object to the first-degree
robbery convictions as crimes of violence because they were,
in fact, crimes of violence under the sentencing guidelines.
She believed filing any objections to these recommendations
would be frivolous.
demeanor while testifying was that of someone who was being
completely candid; she was not evasive in any way. The ...