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Wilson v. United States

United States District Court, W.D. Missouri, Western Division

July 6, 2017

UNITED STATES OF AMERICA, Respondent. Crim. No. 4:15-cr-0186-01-DGK



         Movant 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.

         Because Movant's claim is without merit, the Court DENIES the motion. The Court also declines to issue a certificate of appealability.

         Background and Procedural History

         On June 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 § 924(a)(2).

         The 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.

         On 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.

         On 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 adopted it.[1]

         After granting allocution, the Court sentenced Movant to 55 months' imprisonment and a three-year term of supervised release.

         Movant 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).

         Acting 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.

         The Court subsequently ordered an evidentiary hearing and appointed an attorney to represent Movant.

         The 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.

         Counsel's demeanor while testifying was that of someone who was being completely candid; she was not evasive in any way. The ...

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