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Powell v. United States

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

September 20, 2017

RICKY LABARON POWELL
v.
UNITED STATES OF AMERICA Criminal No. 1:08cr42-HSO-JMR-1

         ORDER DENYING RICKY LABARON POWELL'S [29] MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE BY A PERSON IN FEDERAL CUSTODY PURSUANT TO 28 U.S.C. § 2255; DENYING AS MOOT THE GOVERNMENT'S [35] MOTION TO DISMISS; AND DENYING AS MOOT RICKY LABARON POWELL'S [36] MOTION FOR VOLUNTARY DISMISSAL

          HALIL SULEYMAN OZERDEN UNITED STATES DISTRICT JUDGE

         BEFORE THE COURT are the following Motions: (1) Ricky Labaron Powell's Motion [29] to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody, filed pursuant to 28 U.S.C. § 2255; (2) the Government's Motion [35] to Dismiss; and (3) Powell's Motion [36] for Voluntary Dismissal. After due consideration of the issues, the record, and relevant legal authority, the Court is of the opinion that Powell's § 2255 Motion [29] should be denied without an evidentiary hearing. The Government's Motion [35] to Dismiss and Powell's Motion [36] for Voluntary Dismissal are rendered moot.

         I. FACTS AND PROCEDURAL HISTORY

         On April 8, 2008, a Grand Jury returned a three-count Indictment [3] against Ricky Labaron Powell (“Powell”). Powell elected to enter into a Plea Agreement [22] with the Government and pleaded guilty to Count 1 of the Indictment, which charged that

on or about January 22, 2008, in Jackson County, in the Southern Division of the Southern District of Mississippi, the defendant, RICKY LABARON POWELL, knowingly received, possessed, concealed, and stored a stolen firearm and ammunition, that is, a loaded Glock semiautomatic pistol, model 21, caliber .45, serial number HMM962, which was moving as, which was part of, and which constituted interstate commerce, knowing and having reasonable cause to believe the firearm was stolen, in violation of Sections 922(j) and 924(a)(2), Title 18, United States Code.

Indictment [3] at 1.

         Powell's Plea Agreement [22] with the Government provided, in relevant part, that Powell expressly waived:

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 [22] at 4 (filed under seal).

         To assist the Court in sentencing, the United States Probation Office prepared a Presentence Investigation Report (“PSR”). See PSR [24] (filed under seal). In the PSR, the probation officer recommended that the appropriate Guideline to consider was United States Sentencing Guideline § 2K2.1(a)(4) (2007 ed.), which called for a base offense level of 20 because Powell had committed this offense subsequent to a felony conviction on March 18, 1999, for Burglary 2nd in Mobile, Alabama, which was determined to be a “crime of violence.” Id. at 5. “Crime of violence” is defined in Guideline § 4B1.2(a).

         Powell was sentenced on September 25, 2008, to a term of imprisonment of 120 months as to Count 1 of the Indictment. The Court ordered that upon release from imprisonment, Powell was to be placed on supervised release for a term of three years. The Judgment [25] was entered on September 26, 2008. J. [25] at 1-3. Powell did not file a direct appeal.

         On June 20, 2016, Powell filed a Motion [29] through counsel pursuant to 28 U.S.C. § 2255 in light of Johnson v. United States, 135 S.Ct. 2551 (2015). Powell asks the Court to re-sentence him without the application of the ยง 2K2.1 sentencing enhancement. Mot. [29] at 18. Upon the Government's Motion [31], on August 2, 2016, the Court stayed this action pending the United States Supreme ...


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