United States District Court, N.D. Mississippi, Aberdeen Division
SHARION AYCOCK U.S. DISTRICT JUDGE
matter comes before the court on the motion of Eric Lashun
Smith to vacate, set aside, or correct his sentence under 28
U.S.C. § 2255. The government has responded to the
motion, and the matter is ripe for resolution. For the
reasons set forth below, the instant motion to vacate, set
aside, or correct sentence will be denied.
28 U.S.C. § 2255 permits an inmate serving a sentence
after conviction of a federal crime “may move the court
which imposed the sentence to vacate, set aside or correct
the sentence.” 28 U.S.C. § 2255(a). As with the
writ of habeas corpus, see 28 U.S.C.
§§ 2241, 2254, a § 2255 motion sets forth only
four bases on which a motion may be made: (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). Thus, a prisoner must claim either a constitutional
violation or want of subject matter jurisdiction to invoke 28
U.S.C. § 2255. In the absence of constitutional or
jurisdictional defects, a federal prisoner may invoke §
2255 only if the error constitutes “a fundamental
defect which inherently results in a complete miscarriage of
justice.” United States v. Addonizio, 442 U.S.
178, 185 (1979).
district court must first conduct a preliminary review of a
section 2255 motion, and “[i]f it plainly appears from
the motion, any attached exhibits, and the record of the
prior proceeding that the moving party is not entitled to
relief, the judge must dismiss the motion.” Rules
Governing Section 2255 Proceedings, Rule 4(b). If the motion
raises a non-frivolous claim to relief, the court must order
the Government to file a response or to take other
appropriate action. Id. The judge may then require
the parties to expand the record as necessary and, if good
cause is shown, authorize limited discovery. Rules
Governing Section 2255 Proceedings, Rules 6-7.
reviewing the Government's answer, any transcripts and
records of prior proceedings, and any supplementary materials
submitted by the parties, the court must decide whether an
evidentiary hearing is warranted. Rules Governing Section
2255 Proceedings, Rule 8. Under the statute, an
evidentiary hearing must be held unless “the motion and
the files and records of the case conclusively show that the
prisoner is entitled to no relief.” 28 U.S.C. §
2255(b). However, the court need not hold an evidentiary
hearing if the prisoner fails to produce “independent
indicia of the likely merit of [his] allegations.”
United States v. Edwards, 442 F.3d 258, 264
(5th Cir.2006) (quoting United States v.
Cervantes, 132 F.3d 1106, 1110 (5th C i r.
the petitioner bears the burden of establishing his claims of
error by a preponderance of the evidence. See Wright v.
United States, 624 F.2d 557, 558 (5th
Cir.1980). For certain “structural” errors,
relief follows automatically once the error is proved.
See Burgess v. Dretke, 350 F.3d 461, 472
(5th Cir.2003). For other errors at the trial
court level, the court may grant relief only if the error
“had substantial and injurious effect or
influence” in determining the outcome of the case.
Brecht v. Abrahmson, 507 U.S. 619, 637 (1993);
see also United States v. Chavez, 193 F.3d 375, 379
(5th Cir.1999) (applying Brecht's
harmless error standard in a § 2255 proceeding). If the
Court finds that the prisoner is entitled to relief, it
“shall vacate and set the judgment aside and shall
discharge the prisoner or resentence him or grant a new trial
or correct the sentence as may appear appropriate.” 28
U.S.C. § 2255(b).
and Procedural Posture 
March 25, 2010, Eric Lashun Smith was charged  in four
counts of a five count Indictment. Count One charged him with
conspiracy to steal and unlawfully take and carry away
firearms from the premises and business inventory of
Noxapater Hardware in violation of 18 U.S.C. § 922(u).
Count Two charged that Smith and another individual named in
the Indictment, aided and abetted by each other, knowingly
stole and unlawfully took and carried away from the premises
and business inventory of Noxapater Hardware thirty-eight
(38) firearms which had been transported in interstate
commerce, in violation of 18 U.S.C. §§ 2 and
922(u). Count Three charged Smith and another defendant with
aiding and abetting each other in possession of one or more
of the stolen firearms that had been transported in
interstate commerce, in violation of 18 U.S.C. §§ 2
and 922(j). Count Four charged Smith with possessing one or
more of the stolen firearms after having been convicted of a
felony in violation of 18 U.S.C. § 922(g)(1).
plea agreement, in which he pled guilty to Counts One and
Four, was accepted by the court on June 28, 2011. Count One
carried a maximum statutory term of imprisonment of five (5)
years. Count Four carried a maximum statutory term of
imprisonment of ten (10) years.
One and Four were grouped together for guideline
calculations. PSR ¶ 19. U.S.S.G. § 2K2.1(a)(6)
provided for a base offense level of 14 because Smith was a
“prohibited person at the time [he] committed the
instant offense.” PSR ¶ 20. He received a six (6)
level increase under U.S.S.G. § 2K2.1(b)(1)(C) because
more than twenty-five (25), but less than ninety-nine (99),
firearms were involved. PSR ¶ 21. U.S.S.G. §
2K2.1(b)(4) provided a two (2) level increase since a firearm
was stolen. PSR ¶ 22. Smith engaged in trafficking of
the stolen firearms; thus, he received a four (4) level
increase under U.S.S.G. 2K2.1(b)(5). PSR ¶ 23. He
received another four (4) level increase under U.S.S.G.
§ 2K2.1(b)(6) comment 14(B) because he found and took a
firearm during the course of the burglary. PSR ¶ 24.
This resulted in an adjusted offense level of 30. PSR ¶
25. After a three (3) level reduction for acceptance of
responsibility, Smith faced a total offense level of 27. PSR
accumulated 13 criminal history points resulting in a
Criminal History Category of VI. Smith's Total Offense
Level of 27 combined with his Criminal History Category of VI
resulted in a Guideline Range of 130-162 months imprisonment.
instant § 2255 motion, Smith makes the following claims
(1) that he is actually innocent of the ACCA enhancement and
the career ...