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Hinson v. United States

United States District Court, W.D. North Carolina, Charlotte Division

January 31, 2017



          Max O. Cogburn Jr. United States District Judge

         THIS MATTER is before the Court on Petitioner's Motion to Vacate, Set Aside or Correct Sentence under 28 U.S.C. § 2255, (Doc. No. 1), and on the Government's Motion to Dismiss, (Doc. No. 3).

         I. BACKGROUND

         In November 2013, Petitioner Shaun Isiah-Jeffrey Hinson and an accomplice entered a Bank of America branch in Charlotte, North Carolina, wearing ski masks and gloves, and wielding handguns. (Id., Doc. No. 34 at ¶¶ 5-6: PSR). They ordered everyone to lie down and then both men leapt over the teller's counter and took almost $24, 000 in cash before fleeing. (Id. at ¶¶ 6-7). A month later, Petitioner robbed another Bank of America branch in Charlotte, this time taking over $42, 000 in cash. (Id. at ¶ 9). Law enforcement officers were able to identify Petitioner after police attempted to stop his car for speeding over 120 miles per hour in Virginia. (Id. at ¶ 11). Petitioner abandoned his car after it got stuck when he attempted to cross over a median. (Id.). However, when police searched the vehicle, they found Petitioner's state identification card, gloves matching those worn during the bank robberies, five Bank of America money straps, and a loaded, 9mm handgun that looked like the handgun used during the first robbery. (Id.).

         A grand jury charged Petitioner with armed bank robbery, in violation of 18 U.S.C. §§ 2113(a), (d) and 2 (Count One); possession of and brandishing a firearm in furtherance of a crime of violence, namely the bank robbery charged in Count One, in violation of 18 U.S.C. § 924(c)(1)(C)(ii) (Count Two); and bank robbery, in violation of 18 U.S.C. § 2113(a) (Count Three). (Id., Doc. No. 1: Indictment). Petitioner agreed to plead guilty to all three charges. (Id., Doc. No. 23: Plea Agrmt.). As part of Petitioner's plea agreement, the Government agreed that his plea was timely for purposes of acceptance of responsibility and both parties agreed that either side could seek a departure or variance at sentencing. (Id. at ¶ 6). Petitioner also agreed to waive the right to challenge his conviction or sentence on appeal or in any post-conviction proceeding, except as to claims of ineffective assistance of counsel or prosecutorial misconduct. (Id. at ¶¶ 17-18).

         At the plea hearing, Petitioner agreed that he understood the terms of the plea agreement, that he understood and agreed to the waiver of his right to challenge his conviction and sentence on appeal or in any post-conviction proceeding, that other than the plea agreement there were no agreements between the parties, and that no promises of leniency or a light sentence had been made to induce him to plead guilty. (Id., Doc. No. 56 at 12-15: Plea Tr.). When the magistrate judge asked Petitioner whether he was satisfied with his attorney, he stated, “Great guy. Great services.” (Id. at 15). The magistrate judge found that Petitioner's guilty plea was knowingly and voluntarily made and accepted it. (Id. at 16-17).

         A probation officer prepared a presentence report, recommending that Petitioner be sentenced at offense level 22. (Id., Doc. No. 34 at ¶¶ 22-44). The probation officer also found that Petitioner had 15 criminal history points, based on his prior New York state convictions from 2004 through 2012, and a criminal history category of VI. (Id. at ¶¶ 50-59). The advisory guidelines range for Counts One and Three was 84-105 months of imprisonment, with a mandatory-minimum consecutive sentence of seven years as to Count Two. (Id. at ¶ 105).

         At sentencing, Petitioner stated that he remembered the plea hearing and would give the same answers if the Court were to ask him those questions again. (Id., Doc. No. 57 at 2-3: Sent. Tr.). This Court accepted his plea. (Id. at 3-4). Although the Government argued for a sentence in the middle of the guidelines range, this Court sentenced Petitioner at the bottom of the guidelines range to 84 months of imprisonment for Counts One and Three, to be served concurrently, and 84 months of imprisonment as to Count Two, to be served consecutively, for a total sentence of 168 months of imprisonment. (Id. at 14, 17-18).

         Petitioner appealed. His attorney filed an Anders brief, but questioned whether the Government had breached the plea agreement by not moving for a downward departure and whether this Court had erred by accepting a guilty plea to the firearm charge given Petitioner's new representation that the firearm was fake. United States v. Hinson, 621 F. App'x 201 (4th Cir. 2015). Petitioner filed a pro se supplemental brief, asserting that his attorney had promised him that he would receive a downward departure, that the firearm used during the offense was only a BB-gun and was only brandished by his accomplice, and that Petitioner was not seen by a doctor for his mental health issues before sentencing. (Appellate Doc. No. 31).

         In October 2015, the Fourth Circuit affirmed Petitioner's conviction and sentence, holding that Petitioner had not shown that the Government breached the plea agreement, that this Court had not erred in accepting his guilty plea, and that the issues raised in Petitioner's pro se supplemental brief lacked merit. Hinson, 621 F. App'x at 202. Petitioner timely filed the present motion to vacate in June 2016. (Civ. Doc. No. 1). In his motion, Petitioner argues that this Court breached an agreement to sentence him at the low end of the Sentencing Guidelines and his attorney provided ineffective assistance by failing to object to the Government's alleged breach; his conviction under 18 U.S.C. § 924(c) is invalid under Johnson v. United States, 135 S.Ct. 2551 (2015); his § 924(c) conviction violates double jeopardy; and his criminal history category was incorrectly calculated. (Doc. No. 1 at 5-9). The Government filed its response and motion to dismiss on December 30, 2016. (Doc. No. 3). On January 3, 2017, this Court issued an order giving Petitioner until January 20, 2017, to respond to the Government's motion to dismiss. (Doc. No. 4). Petitioner has not responded and the time to do so has passed. Therefore, this matter is ripe for disposition.


         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 arguments presented by Petitioner 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).


         A. Petitioner's Claims other than His Claim of ...

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