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United States v. Casper

United States District Court, S.D. Mississippi, Southern Division

May 18, 2017

UNITED STATES OF AMERICA
v.
BENJAMIN JOSEPH CASPER, III Criminal No. 1:12cr34-HSO-JCG-1

          MEMORANDUM OPINION AND ORDER GRANTING THE UNITED STATES' [36] MOTION TO DISMISS AND DENYING DEFENDANT'S [32] MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE BY A PERSON IN FEDERAL CUSTODY PURSUANT TO 28 U.S.C. § 2255

          HALIL SULEYMAN OZERDEN UNITED STATES DISTRICT JUDGE.

         BEFORE THE COURT is the United States of America's Motion [36] to Dismiss, the Motion [32] to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody, filed by Defendant Benjamin Joseph Casper, III (“Defendant” or “Casper”) pursuant to 28 U.S.C. § 2255. Casper has not responded to the Government's Motion, and the time for doing so has passed. After due consideration of the issues presented, the record, and relevant legal authority, the Court is of the opinion that the Government's Motion [36] to Dismiss should be granted and that Casper's § 2255 Motion should be denied.

         I. FACTS AND PROCEDURAL HISTORY

         On July 2, 2012, Casper pleaded guilty to Count 1 of a single-count Indictment [3], see July 2, 2012, Minute Entry, which charged that

[o]n or about September 6, 2011, in Harrison County, in the Southern Division of the Southern District of Mississippi, the defendant, BENJAMIN JOSEPH CASPER III, having been convicted previously of a felony, that is, a crime which is punishable by imprisonment for a term exceeding one year, did knowingly possess a firearm, which had previously been shipped and transported in and affecting commerce.
In violation of Sections 922(g)(1) and 924(a)(2), Title 18, United States Code.

Indictment [3] at 1.

         Casper's guilty plea was made pursuant to a Plea Agreement [19] with the Government, which provided in relevant part that Allen expressly waives the following rights:

a. the right to appeal the conviction and sentence imposed in this case, or the manner in which that sentence was imposed, on the grounds set forth in Title 18, United States Code, Section 3742, or on any ground whatsoever, and
b. 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 [19] at 4. At the plea hearing and in the Plea Agreement [19], Casper and his attorney declared that the terms of the Plea Agreement were read by or to Casper, explained to Casper by his attorney, understood by Casper, voluntarily accepted by Casper, and agreed to and accepted by Casper. Id. at 6.

         To assist the Court in sentencing, the United States Probation Office prepared a Presentence Investigation Report (“PSR”). See PSR [28] (filed under seal). Because Casper had previously been convicted in the Circuit Court of Harrison County, Mississippi, on November 9, 2006, for possession with intent to distribute a controlled substance, and again on April 6, 2009, for a separate offense of possession of a controlled substance with intent to distribute, the Probation Office determined that Casper's base offense level under United States Sentencing Guideline § 2K2.1(a)(2) was 24. Because Casper possessed a firearm in connection with another felony offense, namely that Casper was in possession of a felony amount of marijuana which he and his girlfriend intended to distribute, the PSR added a four-level adjustment for this specific offense characteristic. See U.S. Sentencing Guidelines Manual § 2K2.1(b)(6)(B). After a two-level adjustment for obstruction of justice, Casper's total offense level was 30.

         Casper's counsel raised several objections to the PSR, including one to the four-level enhancement Defendant received under § 2K2.1(b)(6)(B). See Def.'s Objs. [28-2] (filed under seal). At the sentencing hearing, the Government presented evidence of Casper's having possessed a handgun and more than 30 grams of marijuana, and of his intent to sell the marijuana. The Court overruled Casper's objection. See Miss. Code. Ann. § 41-29-139(b)(2)(A).

         Based upon a total offense level of 30 and a criminal history category of V, the imprisonment range under the Guidelines for Casper was 151 months to 188 months. However, the statutorily authorized maximum sentence was 10 years, which was less than the applicable guideline range, making the guideline term of imprisonment 120 months. See U.S. Sentencing Guidelines Manual § 5G1.1(a). Casper was sentenced on September 27, 2012, to a term of imprisonment of 120 months, and the Court entered Judgment [30] on October 1, 2012. J. [30] at 1-2. Casper did not file a direct appeal.

         On June 16, 2016, Casper filed a Motion [32] pursuant to 28 U.S.C. § 2255.[1]Casper argues that under Welch v. United States, 136 S.Ct. 1257 (2016), and Johnson v. United States, 135 S.Ct. 2551 (2015), his prior offenses no longer constitute crimes of violence under United States Sentencing Guideline §§ 2K2.1(a)(2) and 2K2.1(b)(6)(B). Mot. [32] at 4; Mem. [33] at 2-14. Casper refers to charges of domestic violence and possession of 13 grams of marijuana, which he claims is a misdemeanor under 21 U.S.C. § 844. Mem. [33] at 2. Casper asks the Court to vacate his sentence and judgment and to resentence him. Id. at 14-15.

         On August 1, 2016, the Government filed a Motion to Dismiss [36] seeking to enforce the waivers contained in Casper's Plea Agreement. See Mot. [36] at 2-3. The Government maintains that Casper's § 2255 Motion must be dismissed because Casper voluntarily waived his right to collaterally attack his sentence in such a motion, id. at 3, and that Casper's Motion lacks merit inasmuch as Johnson does not control here ...


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