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Smith v. United States

United States District Court, N.D. Mississippi, Aberdeen Division

March 9, 2017

ERIC LASHUN SMITH, PETITIONER
v.
UNITED STATES OF AMERICA RESPONDENTS

          MEMORANDUM OPINION

          SHARION AYCOCK U.S. DISTRICT JUDGE

         This 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.

         Section 2255 Proceedings

         Section 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).

         The 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.

         After 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. 1998)).

         Ultimately, 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).

         Facts and Procedural Posture [1]

         On March 25, 2010, Eric Lashun Smith was charged [2] 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).

         Smith's 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.

         Counts 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 ¶ 29.

         Smith 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.

         In the instant § 2255 motion, Smith makes the following claims for relief:

(1) that he is actually innocent of the ACCA enhancement and the career ...

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