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Guy v. United States

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

May 16, 2018

EMMANUEL HARGROVE GUY, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          Robert J. Conrad, 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).

         I. BACKGROUND

         Petitioner and two co-defendants were indicted for: Count (1), conspiracy to commit theft of a firearm from a federal firearm licensee; Count (2), theft from a licensed firearm dealer and aiding and abetting the same; and Count (3), possession of stolen firearms and aiding and abetting the same. (3:16-cr-303, Doc. No. 22).

         Petitioner pled guilty to Count (2) in exchange for the Government's dismissal of the remaining Counts. (3:16-cr-303, Doc. No. 54). The plea agreement contained appellate and post-conviction waivers. (3:16-cr-303, Doc. No. 54 at 4).

         Petitioner admitted in the written factual proffer in support of his guilty plea that he, his two co-defendants, and an unindicted co-conspirator “burglarized The Range at Lake Norman, a Federal Firearms Licensee….” (3:16-cr-303, Doc. No. 55 at 1). Petitioner and two of the other pariticipants broke out glass in a door with a hammer, entered the entry are and broke a second window. They entered the gun store and “[a]ll three men grabbed rifles and/or pistols….” (3:16-cr-303, Doc. No. 55 at 2).

         The Presentence Investigation Report (“PSR”) scored the base offense level as 18. (3:16-cr-303, Doc. No. 73 at ¶ 35). Six levels were added because the offense involved 25 or more firearms and two more levels were added because the firearms were stolen. (3:16-cr-303, Doc. No. 73 at ¶¶ 36-37). Four levels were added because Petitioner used or possessed a firearm or ammunition in connection with another felony offense, “burglary at The Range at Lake Norman, ” or possessed or transported any firearm or ammunition with knowledge, intent, or reason to believe that it would be used or possessed in connection with another felony. (3:16-cr-303, Doc. No. 73 at ¶ 38). Three levels were deducted for acceptance of responsibility, resulting in a total offense level of 27. (3:16-cr-303, Doc. No. 73 at ¶¶ 45-47). Petitioner had zero criminal history points and a criminal history category of I. (3:16-cr-303, Doc. No. 73 at ¶ 52). The resulting advisory guideline range was 70-87 months' imprisonment. (3:16-cr-303, Doc. No. 73 at ¶ 74).

         At sentencing, the guideline range was adjusted to reflect the correct number of firearms involved, and the final guideline range was 57-71 months' imprisonment. See (3:16-cr-303, Doc. No. 82). The Court sentenced Petitioner at the bottom of the guidelines to 57 months' imprisonment followed by three years of supervised release. (3:16-cr-303, Doc. No. 73 at ¶ 81). The Fourth Circuit affirmed on March 29, 2018. See (3:16-cr-303, Doc. No. 98).

         Petitioner filed the instant § 2255 Motion to Vacate on March 12, 2018. He argues that counsel was ineffective for failing to object to the four-level increase pursuant to Guidelines § 2K2.1(b)(6)(B) because he did not possess any firearm when he entered the gun store, did not use any of the stolen weapons to commit a separate offense, and is therefore being punished twice for the same conduct.

         II. STANDARD OF REVIEW

         A federal prisoner claiming that his “sentence was imposed in violation of the Constitution or the laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.” 28 U.S.C. § 2255(a). 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 argument presented by the Petitioner can be resolved based on the record and governing case law. See Raines v. United States, 423 F.2d 526, 529 (4th Cir. 1970).

         III. DISCUSSION

         The U.S. Sentencing Guidelines provide as follows with regard to specific offense characteristics for firearms offenses:

If the defendants … used or possessed any firearm or ammunition in connection with another felony offense; or possessed or transferred any firearm or ammunition with knowledge, intent, or reason to believe that it would be used or possessed in ...

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