United States District Court, S.D. Mississippi, Southern Division
MEMORANDUM OPINION AND ORDER DENYING DEFENDANT'S MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE
HALIL SULEYMAN OZERDEN, District Judge.
BEFORE THE COURT is Defendant Dante Lamar Cameron's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody . Defendant seeks to set aside his November 14, 2012, Judgment of Conviction  for conspiracy to commit violations of federal firearms laws and possession of a firearm with an obliterated or defaced serial number. Defendant's former counsel has filed an Affidavit , and the Government has filed a Response . Having considered the issues presented, the record, and relevant legal authorities, the Court is of the opinion that the Motion should be denied.
A. Factual Background
On April 17, 2012, Defendant was charged with conspiracy to commit violations of federal firearms laws in violation of 18 U.S.C. § 371 and with knowing possession of a firearm with an obliterated or defaced serial number in violation of 18 U.S.C. §§ 922(k) and 924(a)(1)(B). Indictment 1-10, 12-13 . Scott Michael Davis was appointed as counsel for Defendant on May 30, 2012. Order Appointing Counsel 1 . On May 31, 2012, Mr. Melvin Cooper was substituted as Defendant's counsel. Order Appointing Counsel 1 . Defendant pleaded not guilty on June 6, 2012. Minute Entry, June 6, 2012.
On July 13, 2012, however, Defendant filed a Notice of Intent to Change Plea  to plead guilty. Defendant entered into a written Plea Agreement  with the Government and pleaded guilty to Count One and Count Eleven of the Indictment on August 6, 2012. Minute Entry, Aug. 6, 2012. Pursuant to the Plea Agreement, Defendant expressly waived "the right to appeal the conviction and sentence in this case" and "the right to contest the conviction and sentence or the manner in which the sentence was imposed in any post-conviction proceeding including but not limited to a motion brought under Title 28, United States Code, Section 2255...." Plea Agreement 4, ¶¶ 7(a) and (b) . Defendant also entered a sealed Plea Supplement  on August 6, 2012, setting forth various obligations on Defendant's part and the Government's part. Mr. Cooper represented Defendant throughout this process.
On November 14, 2012, the Court sentenced Defendant to sixty months imprisonment on Count One and sixty months imprisonment on Count Eleven. Minute Entry, Nov. 14, 2012. The Court ordered that the terms of imprisonment would run concurrently and ordered Defendant to pay a $10, 000.00 fine and $200.00 special assessment. Id. The Court also sentenced Defendant to a term of three years' supervised release upon Defendant's release from imprisonment. J. in a Criminal Case 3 . The Judgment was executed on November 14, 2012, and filed the next day.
B. Procedural Background
Defendant, proceeding pro se, filed the Motion to Vacate  pursuant to 28 U.S.C. § 2255 on October 31, 2013, along with a Memorandum in Support . Defendant argues that his counsel's performance was deficient and caused him to suffer prejudice because his former counsel "failed to file a timely written objection to the erroneously four [ sic ] (4) level enhancements[;]... failed to argue to the District Court the sentencing guidelines errors[; and]... failed to preserve or perfect the record for further review for an unreasonable sentence imposed" under United States v. Booker, 543 U.S. 220, 261 (2005). Mem. in Support 3 . Defendant argues the Court's application of United States Sentencing Guidelines ("U.S.S.G.") "§ 2K2.2b(6)" constituted a finding of fact resulting in an increase of Defendant's sentence. Id. at 3-4. Defendant contends that the Court erred by applying the enhancement provided for in § 2K2.1(b)(6) without determining by a preponderance of the evidence that Defendant had knowledge that the weapons would be used in the commission of another felony. Id. at 4. Defendant further posits that the Court erred in applying the enhancements in § 2K2.1(b)(6) without first determining whether the weapons were possessed in connection with another felony offense. Id. Defendant also maintains that his counsel's failure to object to the Presentence Report constituted ineffective assistance of counsel. Id. at 4-5.
Mr. Cooper filed an Affidavit  on November 12, 2013, in which he states that Defendant made the decision to explore the possibility of pleading guilty after reviewing the Government's audio and video evidence with Mr. Cooper. Aff. of Melvin G. Cooper 2 . Mr. Cooper further notes that Defendant also examined the Plea Agreement and Plea Supplement with him before pleading guilty. Id. at 1. According to Mr. Cooper, Defendant knew and appreciated the fact that he was waiving his right to contest the conviction and sentence pursuant to § 2255. Id. at 2. Mr. Cooper also notes that he filed and argued unsuccessfully a Motion for Variance  related to Defendant's sentence. Id. Mr. Cooper recalls advising Defendant that an objection to the four level enhancement would be fruitless due to the Government's video evidence depicting Defendant with a gun. Id.
On December 30, 2013, the Government filed its Response  arguing that Defendant waived the right to challenge his conviction and sentence pursuant to a § 2255 motion, and that this waiver was knowing and voluntary. Resp. of United States to Mot. to Vacate, Set Aside, or Correct Sentence 1-4 . The Government reasons that Defendant's decision to plead guilty and expressly waive the right to seek post-conviction relief precludes his ineffective assistance of counsel claim arising from the sentence imposed upon Defendant. Id. at 4. According to the Government, an ineffective assistance of counsel claim survives a waiver only when the claimed ineffective assistance directly affected the validity of that waiver or the plea itself. Id. The Government further argues that Defendant's contentions pertaining to the application of § 2K2.1(b)(6) are unpersuasive and the enhancements provided by that section were properly applied by the Court. Id. at 4-6.
A. Legal Standard for a § 2255 Motion
"Relief under 28 U.S.C. § 2255 is reserved for transgressions of constitutional rights and for a narrow range of injuries that could not have been raised on direct appeal and would, if condoned, result in a complete miscarriage of justice." United States v. Gaudet, 81 F.3d 585, 589 (5th Cir. 1996) (quoting United States v. Segler, 37 F.3d 1131, 1133 (5th Cir. 1994)). Section 2255 "provides relief for a petitioner who can establish that either (1) his sentence was imposed in violation of the Constitution or laws of the United States, (2) the sentencing court was without jurisdiction to impose the sentence, (3) the sentence was in excess of the ...