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Blackston v. United States

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

August 18, 2017

KERMIT BLACKSTON
v.
UNITED STATES OF AMERICA Criminal No. 1:14cr77-HSO-RHW-3C

          MEMORANDUM OPINION AND ORDER DENYING 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 Motion [252] of Kermit Blackston to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody, filed pursuant to 28 U.S.C. § 2255. After due consideration of the issues presented, the record, and relevant legal authority, the Court is of the opinion that Blackston's § 2255 Motion [252] should be denied without an evidentiary hearing.

         I. FACTS AND PROCEDURAL HISTORY

         On June 23, 2015, Kermit Blackston (“Blackston”) pleaded guilty to Count 3 of the eight-count Indictment [3] in this case. See June 23, 2015, Minute Entry. Count 3 charged that

on or about October 9, 2013, in George County, in the Southern Division of the Southern District of Mississippi and elsewhere, the defendants, KERMIT BLACKSTON and LARRY ANDERSON, aided and abetted by others known and unknown to the Grand Jury, did knowingly and intentionally possess with intent to distribute more than 5 grams of actual methamphetamine, a Schedule II narcotic drug controlled substance, as prohibited by Section 841(a)(1), Title 21, United States Code, and Section 2, Title 18, United States Code.

Indictment [3] at 3-4.

         As part of his plea, Blackston entered into a Plea Agreement [183] with the Government which provided, in relevant part, that Blackston

expressly waives the following rights (except that Defendant reserves the right to raise ineffective assistance of counsel claims):
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 [183] at 4-5. At the plea hearing and in the Plea Agreement [183], Blackston and his attorney declared that the terms of the Plea Agreement were read by or to Blackston, explained to Blackston by his attorney, understood by Blackston, voluntarily accepted by Blackston, and agreed to and accepted by Blackston. Id. at 6.

         To assist the Court in sentencing, the United States Probation Office prepared a Presentence Investigation Report (“PSR”). See PSR [220] (filed under seal). Due to Blackston's count of conviction involving possession with intent to distribute a controlled substance, his conduct was analyzed under United States Sentencing Guideline § 2D1.1. See Id. at 33 (filed under seal). Blackston's base offense level due to the amount of illegal controlled substances involved was 32. Id. at 34. Because Blackston had possessed firearms, his offense level was increased by two levels pursuant to Guideline § 2D1.1(b)(1), and because the offense involved methamphetamine which had been imported from Mexico, the offense level was increased by another two levels pursuant to Guideline § 2D1.1(b)(5). Id. at 34-35. After a three-level reduction for acceptance of responsibility, Blackston's total offense level was 33. With a criminal history category of III, the guideline imprisonment range was 168 months to 210 months. See Id. at 47.

         Prior to sentencing, Blackston's counsel raised several objections to the PSR, including one to the two-level enhancement Blackston received under § 2D1.1(b)(1) for possession of a firearm. See Objs. [220-3] at 4 (filed under seal). Blackston argued that he never handled, possessed, or had any firearms in connection with the offense. See Id. At the sentencing hearing, the Court overruled Blackston's objection on this point.

         Blackston was sentenced on September 29, 2015, to a term of imprisonment of 125 months as to Count 3 of the Indictment. The Court ordered that upon release from imprisonment, Blackston be placed on supervised release for a term of five years as to Count 3. Id. at 3. The Court also ordered Blackston to pay a $100.00 assessment and a $7, 500.00 fine. Id. at 5. The Judgment [223] was entered on September 29, 2015. J. [223] at 1-2. Blackston did not file a direct appeal.

         On June 27, 2016, Blackston filed a Motion [252] pursuant to 28 U.S.C. § 2255, [1] asking the Court to re-sentence him. Mot. [252] at 13. As his first ground for relief, Blackston argued that a prior felony conviction was improperly used to enhance his sentence because it was not a “crime of violence” as defined by the residual clause of Sentencing Guideline § 4B1.2. Id. at 4. Blackston mentions the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(2)(B), and appears to be relying upon Johnson v. United States, 135 S.Ct. 2551 (2015). Id.

         In his second ground, Blackston asserts that the Government abused “a defective plea agreement, ” and his counsel rendered ineffective assistance with respect to his Plea Agreement. Mot. [252] at 5. According to Blackston, he

never agreed to plea to anyone else['s] indictment. The Government was able to effectively amend my indictment by enhancing my sentence with an unindicted charge of possession of a firearm. The 2 points enhancement allowed the judge to sentence me to additional term of imprisonment. My plea agreement did not indicate that I would be subject to my co-defendant's illegal conduct. The Government offered no evidence that I had or used a gun during my sentence hearing.
Petitioner's plea agreement became defective when the Government was allowed present [sic] arguments in support of the illegal enhancement. My attorney gave ineffective assistance of Counsel when ...

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