United States District Court, N.D. Mississippi, Greenville Division
MEMORANDUM OPINION AND ORDER
SHARION AYCOCK, District Judge.
Julius McCullum, a federal prisoner, is proceeding pro se on a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. The Government has submitted a response to the motion, and McCullum has submitted a reply thereto. This matter is ripe for review. Having considered the pleadings and the record, including the relevant parts of McCullum's underlying criminal case, along with the relevant law, the Court finds that an evidentiary hearing is unnecessary, and that the motion should be denied.
Background Facts and Procedural History
On November 1, 2007, McCullum was named in a two-count indictment filed in the Northern District of Mississippi, charging him with possession with the intent to distribute an amount in excess of 50 grams of cocaine base in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A) (Count One) and possession of a firearm in furtherance of a drug trafficking crime (Count Two). On August 20, 2009, McCullum pleaded guilty to Count One of the indictment, and Count Two was dismissed at sentencing.
For United States Sentencing Guidelines ("USSG" or "Guidelines") calculation purposes, McCullum was held accountable for 98.53 grams of cocaine base, which resulted in a base offense level of 30. (PSR ¶ 12). In accordance with USSG § 2D1.1(b)(2), McCullum received a two-level enhancement for possession of a firearm. ( Id. at ¶ 13). McCullum also recklessly created a substantial risk of death or serious bodily injury to others in the course of fleeing from law enforcement officers, resulting in a two-level enhancement for obstruction of justice. (USSG § 3C1.2). ( Id. at ¶ 16). After a three-level reduction for acceptance of responsibility, McCullum faced a total offense level of 31. ( Id. at ¶¶ 17-21).
McCullum accumulated five criminal history points based on five misdemeanor convictions in Greenville, Mississippi. These misdemeanor convictions resulted in a subtotal criminal history score of five. ( Id. at ¶ 68). However, § 4A1.1(c) provides that only a total of four points may be assigned under this section. ( Id. ). Because the total points assigned pursuant to 4A1.1(c) is restricted to four, the subtotal criminal history score was adjusted to a score of four. ( Id. ). Therefore, the Guidelines provided for a Base Offense Level of 31 and a Criminal History Category III, which resulted range for imprisonment of 135 to 168 months. ( Id. at ¶ 100). On February 17, 2010, McCullum was sentenced to 135 months' imprisonment. ( See ECF No. 27).
On December 13, 2011, McCullum filed a § 3582 Motion for Reduction of Sentence pursuant to application of the Fair Sentencing Act of 2010 ("FSA"). ( See ECF No. 29). According to McCullum's motion, the FSA resulted in a reduction of his Total Offense Level from a Level 31 to a Level 27, and his revised range of imprisonment, before applicable departures or statutory mandatory minimums, was 87 to 108 months. ( See id. ). However, McCullum faced a statutory minimum sentence of 120 months. (PSR ¶ 99). On December 16, 2011, the Court reduced McCullum's sentence to 120 months. ( See ECF No. 30).
On May 3, 2013, McCullum filed the instant motion, alleging that several of his misdemeanor convictions in the Municipal Court of Greenville, Mississippi, were expunged by court order dated August 12, 2010. ( See ECF No. 33, Ex. A). McCullum argues that these convictions should not have been utilized in calculating his criminal history, thus reducing his criminal history category from a Category III to a Category I. He maintains that he should be resentenced without reference to the four now-expunged misdemeanor convictions.
After a defendant has been convicted and exhausted his appeal rights, a court may presume that "he stands fairly and finally convicted." United States v. Frady, 456 U.S. 152, 164 (1982). A motion brought pursuant to 28 U.S.C. § 2255 is "the primary means of collateral attack on a federal sentence." Cox v. Warden, Federal Detention Ctr., 911 F.2d 1111, 1113 (5th Cir. 1990) (citation omitted). There are four separate grounds upon which a federal prisoner may move to vacate, set aside, or correct a sentence under 28 U.S.C. § 2255: (1) the sentence was imposed in violation of the Constitution or laws of the United States; (2) the court was without jurisdiction to impose the sentence; (3) the sentence exceeds the statutory maximum sentence; or (4) the sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255(a). Collateral attack limits a movant's allegations to those of "constitutional or jurisdictional magnitude." United States v. Samuels, 59 F.3d 526, 528 (5th Cir. 1995) (citation omitted). Relief under § 2255 is reserved, therefore, for violations of "constitutional rights and for that narrow compass of other injury that could not have been raised on direct appeal and, would, if condoned, result in a complete miscarriage of justice." United States v. Capua, 656 F.2d 1033, 1037 (5th Cir. 1981).
McCullum maintains that if his federal sentence were corrected to omit the vacated State convictions from the calculation of his criminal history category, he would have a criminal history category of I with a resulting term of imprisonment of 70-87 months. McCullum was sentenced in this Court on February 17, 2010. ( See ECF No. 27). McCullum's attorney filed a Petition for Expungement in State court on August 6, 2010, pursuant to Mississippi Code Annotated § 99-15-26(5). ( See ECF No. 33, 9-10). The Municipal Court order expunging a portion of McCullum's record was entered on August 12, 2010. ( See id. at 8).
Mississippi's statute requires that the defendant petition the court before an expungement may take place; records are not automatically expunged. See Miss. Code Ann. § 99-15-26(5). Because the Municipal Court order expunging McCullum's misdemeanor convictions was entered upon McCullum's petition after McCullum was sentenced in this case, the convictions were properly counted in determining McCullum's criminal history. United States v. Cerverizzo, 74 F.3d 629, 631 (5th Cir. 1996) (holding that a defendant's prior state conviction could be considered in calculating his criminal history despite the fact that it was expungeable under state law where defendant did not take affirmative action to effect expunction prior to sentencing). Here, McCullum's misdemeanor convictions were not expunged by operation of law, but rather, McCullum was required to take affirmative steps to expunge the convictions. The convictions were not expunged at the time of McCullum's federal sentencing. Therefore, at the time of his sentencing, McCullum's convictions were properly counted as "convictions" for Guidelines purposes.
The Court otherwise finds, as Respondent argues, that McCullum is subject to a ten-year mandatory minimum sentence. McCullum pleaded guilty to possession with intent to distribute 50 grams or more of cocaine base ("crack") in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A). He was sentenced on February 17, 2010, to 135 months imprisonment. He moved a sentence reduction under 18 U.S.C. § 3582 in light of the FSA, which amended the statutory penalties ...