United States District Court, S.D. Mississippi, Southern Division
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
SULEYMAN OZERDEN UNITED STATES DISTRICT JUDGE
THE COURT is the Motion  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  should be denied
without an evidentiary hearing.
FACTS AND PROCEDURAL HISTORY
23, 2015, Kermit Blackston (“Blackston”) pleaded
guilty to Count 3 of the eight-count Indictment  in this
case. See June 23, 2015, Minute Entry. Count 3
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
Indictment  at 3-4.
of his plea, Blackston entered into a Plea Agreement 
with the Government which provided, in relevant part, that
expressly waives the following rights (except that Defendant
reserves the right to raise ineffective assistance of counsel
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  at 4-5. At the plea hearing and in the
Plea Agreement , 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.
assist the Court in sentencing, the United States Probation
Office prepared a Presentence Investigation Report
(“PSR”). See PSR  (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.
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.
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  was
entered on September 29, 2015. J.  at 1-2. Blackston did
not file a direct appeal.
27, 2016, Blackston filed a Motion  pursuant to 28
U.S.C. § 2255,  asking the Court to re-sentence him. Mot.
 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.
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.  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 ...