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Shepard v. United States

United States District Court, W.D. North Carolina, Bryson City Division

September 8, 2014

UNITED STATES OF AMERICA, Respondent. Criminal No. 2:08-cr-00032-MR-1



THIS MATTER is before the Court on Petitioner's Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 [Doc. 1].


On October 8, 2008, Petitioner Jessica Jean Shepard was charged by a grand jury with one count of conspiracy to possess with intent to distribute at least five grams of methamphetamine, in violation of 21 U.S.C. § 846 (Count One), and three counts of possession with intent to distribute methamphetamine, in violation of 21 U.S.C. § 841 (Counts Two through Four). [Criminal Case No. 2:08-cr-00032-MR-1, Doc. 1: Indictment]. Shortly after the Indictment was returned, the Government filed an Information pursuant to 21 U.S.C. § 851 providing notice of Petitioner's three prior felony drug convictions: one conviction for sale/delivery of marijuana, for which she received 5-6 months of imprisonment, and two convictions for possession of methamphetamine, for which she received 6-8 months of imprisonment. [ Id., Doc. 8: Information Pursuant to 21 U.S.C. § 851; Doc. 14 at ¶¶ 39-41: PSR]. The § 851 enhancement increased Petitioner's statutory minimum sentence from five years of imprisonment to ten years of imprisonment. See 21 U.S.C. § 841(b)(1)(B).

Petitioner subsequently entered into a plea agreement with the Government in which she agreed to plead guilty to Count One, and she agreed to cooperate with the Government. [Criminal Case No. 2:08-cr-00032-MR-1, Doc. 10: Plea Agreement]. As part of the agreement, Petitioner acknowledged the applicable statutory minimum and maximum sentence, agreed that the amount of actual methamphetamine foreseeable to her was between 50 and 150 grams, and agreed to waive her rights to appeal or collaterally attack her sentence except for claims of ineffective assistance of counsel or prosecutorial misconduct. [Id. at 2].

After Petitioner entered her guilty plea, the probation officer prepared a presentence investigation report (PSR). [ Id., Doc. 14]. In the PSR, the probation officer determined that the amount of methamphetamine attributable to Petitioner could have been as high as 1.5 kilograms; however, in accordance with the plea agreement, the probation officer recommended that Petitioner be held accountable for between 50 and 150 grams of methamphetamine, resulting in a base offense level of 32. [Id. at ¶ 27]. Accounting for acceptance of responsibility, Petitioner's total offense level was 29. [Id. at ¶ 36]. The probation officer also summarized Petitioner's criminal history, concluding that she had a criminal history category of IV. [Id. at ¶ 45]. With a total offense level of 29 and criminal history category of IV, Petitioner faced a guideline range of 121 to 151 months, and a statutory mandatory minimum sentence of 120 months. [Id. at ¶¶ 86-87].

At the sentencing hearing, the Government filed a motion for downward departure based on substantial assistance under U.S.S.G. § 5K1.1, requesting a departure from level 29 to level 27, which carried an advisory guideline range of 100 to 125 months. [ Id., Doc. 27 at 4-5: Sent. Hrg. Tr.]. This Court granted the Government's motion for departure, sentenced Petitioner to 100 months of imprisonment, and entered the judgment on May 29, 2009. [ Id., Doc. 20: Judgment]. Petitioner did not appeal.

More than three years later, Petitioner filed the instant § 2255 motion to vacate, set aside, or correct sentence. Petitioner placed the motion in the prison system for filing on August 16, 2012, and it was stamp-filed on August 20, 2012. In the petition, Petitioner claims: (1) that her sentence was erroneously enhanced in light of United States v. Simmons , 649 F.3d 237 (4th Cir. 2011), and (2) that her counsel was ineffective for failing to argue the erroneous enhancement at the sentencing hearing. On July 28, 2014, this Court entered an order requiring the Government to respond, and the Government filed its response on August 20, 2014 [Doc. 9].


Rule 4(b) of the Rules Governing Section 2255 Proceedings provides that courts are to promptly examine motions to vacate, along with "any attached exhibits and the record of prior proceedings..." in order to determine whether the petitioner is entitled to any relief on the claims set forth therein. After examining the record in this matter, the Court finds that the motion to vacate can be resolved without an evidentiary hearing based on the record and governing case law. See Raines v. United States , 423 F.2d 526, 529 (4th Cir. 1970).


On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act (the "AEDPA"). Under the AEDPA, there is a one-year statute of limitations for filing a motion for collateral relief. Specifically, section 2255(f) provides as follows:

(f) A 1-year period of limitation shall apply to a motion under this section. The limitation period ...

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